MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not                                 Jun 14 2016, 8:53 am
be regarded as precedent or cited before
                                                                        CLERK
any court except for the purpose of                                 Indiana Supreme Court
                                                                       Court of Appeals
establishing the defense of res judicata,                                and Tax Court

collateral estoppel, or the law of the
case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Gregory F. Zoeller
Alcorn Sage Schwartz & Magrath,                          Attorney General of Indiana
LLP                                                      Eric P. Babbs
Madison, Indiana                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert D. Gibson,                                        June 14, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         39A01-1512-CR-2326
        v.
                                                         Appeal from the Jefferson
                                                         Superior Court
State of Indiana,
                                                         The Honorable Ted R. Todd,
Appellee-Plaintiff.                                      Senior Judge
                                                         Trial Court Cause No.
                                                         39D01-1503-F6-294



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 39A01-1512-CR-2326 | June 14, 2016        Page 1 of 7
                                         Statement of the Case
[1]   Robert D. Gibson (“Gibson”) appeals his conviction and sentence for Level 6

      felony strangulation1 and Level 6 felony battery2 after entering a guilty plea.

      Gibson argues that the trial court failed to advise him of his Boykin rights and

      that his aggregate two-year sentence was inappropriate. Concluding that

      Gibson is improperly challenging his conviction following a guilty plea on

      direct appeal and failed to show that his sentence is inappropriate, we dismiss

      Gibson’s challenge to his conviction and affirm his sentence.


[2]   We dismiss in part and affirm in part.


                                                       Issues
                 1. Whether Gibson may challenge his conviction on direct appeal
                    following a guilty plea.

                 2. Whether Gibson’s sentence is inappropriate.

                                                        Facts
[3]   On March 29, 2015, Gibson was charged with strangling and committing

      battery against Amber Hicks (“Hicks”) his then live-in girlfriend and mother of

      his child. Although he was initially charged with two additional counts, Class

      A misdemeanor battery and Level 6 felony domestic battery, he subsequently

      pled guilty to Level 6 felony strangulation and Level 6 felony battery on



      1
          IND. CODE § 35-42-2-9(b)(1).
      2
       I.C. § 35-42-2-1(d)(6)(2015). This battery statute has been subsequently amended, with an effective date of
      July 1, 2016. Under this amendment, the relevant subsection has been repealed.

      Court of Appeals of Indiana | Memorandum Decision 39A01-1512-CR-2326 | June 14, 2016              Page 2 of 7
      December 4, 2015. As part of his factual basis for his strangulation charge, he

      admitted that he knowingly or intentionally applied pressure to Hicks’ neck in a

      rude, insolent, or angry manner that impeded her normal breathing or blood

      circulation. Gibson, who was twenty-six years old, further pled guilty to one

      count of battery against Hicks, a family or household member. Gibson further

      admitted that he had knowingly or intentionally touched Hicks while in the

      physical presence of their five-year-old child who Gibson knew was present and

      might be able to see or hear the offense. When sentencing Gibson, the trial

      court recognized both Gibson’s criminal history, which included domestic

      battery and illegal possession of an alcoholic beverage, and his unsuccessful

      completion of probation as aggravating circumstances. The court imposed

      concurrent sentences of two (2) years on each of Gibson’s convictions and

      ordered him to serve that time at the Indiana Department of Correction.

      Gibson now appeals.


                                                  Decision
[4]   Gibson argues that: (1) the trial court erred by failing to advise him of his Boykin

      rights; and (2) his sentence is inappropriate. We will discuss each argument in

      turn.


      1. Boykin Rights




      Court of Appeals of Indiana | Memorandum Decision 39A01-1512-CR-2326 | June 14, 2016   Page 3 of 7
[5]   Gibson first argues that the trial court erred by failing to advise him of his

      Boykin3 rights during his guilty plea hearing. He contends that we should

      reverse his conviction and remand for a jury trial.


[6]   A trial court must be satisfied that the accused has been made aware of his right

      against self-incrimination, his right to a jury trial, and his right to confront his

      accusers before accepting a guilty plea. Boykin v. Alabama, 395 U.S. 238, 243

      (1969). Under Boykin, reversal of a conviction is required where the accused

      was not aware of or advised at the time of his plea that he was waiving his

      Boykin rights. Dewitt v. State, 755 N.E.2d 167, 171 (Ind. 2001).


[7]   Direct appeal based on a guilty plea, however, is an improper means by which

      to challenge a guilty plea conviction. Tumulty v. State, 666 N.E.2d 394, 395

      (Ind. 1996). As a general rule of Indiana jurisprudence, entering a guilty plea

      restricts the ability to challenge the conviction on direct appeal. Id. The proper

      avenue to challenge a conviction based upon a guilty plea is to file a petition for

      post-conviction relief pursuant to the Indiana Post-Conviction Rule 1. Id. at

      396. Because Gibson improperly raises this challenge to his guilty plea

      conviction on direct appeal, we dismiss this argument. Hays v. State, 906

      N.E.2d 819, 820 (Ind. 2009) (explaining that a conviction based upon a guilty

      plea may not be challenged on direct appeal and must be done by filing a

      petition for post-conviction relief).




      3
          Boykin v. Alabama, 395 U.S. 238 (1969).

      Court of Appeals of Indiana | Memorandum Decision 39A01-1512-CR-2326 | June 14, 2016   Page 4 of 7
       2. Inappropriate Sentence

[8]    Gibson argues that his aggregate two-year sentence for his Level 6 felony

       convictions was inappropriate. Gibson, who was twenty-six years old at the

       time of his offenses and had a criminal history, suggests that his sentence is

       inappropriate because his previous crimes occurred more than five years prior

       to the current offenses.


[9]    This Court may revise a sentence if it is inappropriate in light of the nature of

       the offense and the character of the offender. Ind. Appellate Rule 7(B). The

       defendant has the burden of proving that his sentence is inappropriate. Childress

       v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of Rule 7(B)

       review “should be to attempt to leaven the outliers, and identify some guiding

       principles for trial courts and those charged with improvement of the sentencing

       statutes, but not to achieve a perceived ‘correct’ result in each case.” Cardwell v.

       State, 895 N.E.2d 1219, 1225 (Ind. 2008). Whether a sentence is inappropriate

       ultimately turns on “the culpability of the defendant, the severity of the crime,

       the damage done to others, and a myriad of other factors that come to light in a

       given case.” Id. at 1224.


[10]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence “is the starting point the Legislature has selected as an

       appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.

       In the present case, Gibson pled guilty to Level 6 felony strangulation and Level

       6 felony battery. At the time of Gibson’s offense, a Level 6 felony conviction

       carried a sentencing range of six months to two and one-half years. I.C. § 35-

       Court of Appeals of Indiana | Memorandum Decision 39A01-1512-CR-2326 | June 14, 2016   Page 5 of 7
       50-2-7(b). During sentencing, the trial court found two aggravating factors: (1)

       a previous criminal history; and (2) unsuccessful completion of probation. The

       trial court imposed concurrent two year sentences for both of Gibson’s

       convictions, which is below the maximum advised by the Legislature.


[11]   Details regarding the nature of Gibson’s offenses is limited by the bare-boned

       factual basis set forth during the guilty plea hearing. Nevertheless, his offenses

       involve strangling and committing battery against Hicks, who was his girlfriend

       and mother of his child. Gibson committed the offenses in the presence of the

       five-year-old child he shared with the victim and “knew the child was present

       and might be able to see or hear the offense.” (Tr. 16). The severity of this

       offense is exacerbated by the fact that Gibson committed a similar crime on the

       same victim prior to this offense.


[12]   Turning to Gibson’s character we note that, Gibson has a prior domestic

       battery conviction for which he was unsuccessfully discharged from probation.

       Gibson claims that his only two prior run-ins with the criminal justice system as

       an adult are not evidence of his criminal character because they occurred five

       years before his current offenses. He also asserts that his character is further

       offset by the fact that he was self-employed and enrolled at Ivy Tech

       Community College at the time of his sentencing.4 While Gibson’s enrollment




       4
        Gibson seems to argue that the trial court improperly considered his criminal history as an aggravating
       factor because his crimes are too remote. Gibson’s argument is essentially asking us to “reweigh” the factors
       used by the trial court which we will not do. See Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). clarified

       Court of Appeals of Indiana | Memorandum Decision 39A01-1512-CR-2326 | June 14, 2016                 Page 6 of 7
       and employment are commendable, we note that Gibson’s prior domestic

       battery offense is similar to the offense in the present case and was also

       perpetrated against Hicks, the same victim as in this case. The fact that Gibson

       committed a substantially similar crime against the same victim reveals, as the

       State contends, that Gibson may be willing to repeat the offense in the future.

       Additionally, affording Gibson a reduced sentence would undermine the

       criminal system because he was given the opportunity for rehabilitation when

       he was placed on probation for the first offense, but he chose to commit the

       same offense against the same victim.


[13]   Gibson has not persuaded us that his aggregate two-year sentence for his Level

       6 felony convictions is inappropriate in light of the nature of the offense and his

       character. Therefore, we affirm the trial court’s sentence.


[14]   Dismissed in part and affirmed in part.


       Kirsch, J., and Riley, J., concur.




       on reh’g, 875 N.E.2d 218 (Ind. 2007). Additionally, even a limited criminal history will suffice as an
       aggravating factor. See Atwood v. State, 905 N.E.2d 479, 488 (Ind. Ct. App. 2009).

       Court of Appeals of Indiana | Memorandum Decision 39A01-1512-CR-2326 | June 14, 2016                Page 7 of 7
