MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Mar 06 2020, 9:17 am
court except for the purpose of establishing
                                                                             CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
John Kindley                                             Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Catherine Brizzi
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Larry Allen Miller, III,                                 March 6, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2172
        v.                                               Appeal from the Steuben Circuit
                                                         Court
State of Indiana,                                        The Honorable Allen N. Wheat,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         76C01-1709-F6-706



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2172 | March 6, 2020                    Page 1 of 8
                                             Case Summary
[1]   Larry Allen Miller, III, appeals his five-year aggregate sentence, imposed

      pursuant to an open plea, for battery against a public safety official, resisting

      law enforcement, and theft with a prior conviction, as Level 6 felonies; and

      theft, a Class A misdemeanor. We affirm.


                                                     Issue
[2]   The sole issue on appeal is whether Miller’s sentence is inappropriate in light of

      the nature of his offenses and his character.


                                                     Facts
[3]   On September 27, 2017, the Angola Police Department was dispatched to the

      Auto Zone store in Angola regarding an alleged theft. The suspect stole a

      “flashlight, decal and lighter” and fled to the south. Tr. Vol. II p. 59. Auto

      Zone personnel described the suspect to the police. The suspect proceeded to

      the Advanced Auto store located nearby. Officer Mike Wood observed a man

      who matched the description of the suspect—Miller—entering the Advanced

      Auto store and holding a bag.


[4]   Officer Wood entered the Advanced Auto store and observed Miller kneeling in

      front of a shelf and placing items into the bag. Officer Wood approached and

      stated that Miller was under arrest for theft from Auto Zone and for the theft

      offense that Officer Wood had just witnessed. Miller argued with Officer Wood

      and threw a canned energy drink at Officer Wood; the open can struck Officer

      Wood’s chest. Miller charged at Officer Wood and attempted to run over
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2172 | March 6, 2020   Page 2 of 8
      Officer Wood to evade arrest. As Officer Wood grappled with Miller and

      attempted to subdue him, Miller wheeled around and elbowed Officer Wood in

      the eye. Officer Wood secured Miller in a police hold, but Miller continued to

      thrash about and throw punches. Another officer arrived and warned that

      Miller would be tased if he continued to resist. Miller refused to comply, and

      the officer tased him. Officer Wood suffered a laceration and an injured

      shoulder in the scuffle.


[5]   On September 28, 2017, the State charged Miller with various offenses

      stemming from the events above. On July 1, 2019, Miller pleaded guilty,

      pursuant to an open plea, to Count I, battery against a public safety official and

      Count II, resisting law enforcement, as Level 6 felonies; Count III, theft, a

      Class A misdemeanor; and Count V, theft, with a prior conviction, a Level 6

      felony. The State agreed to dismiss Count IV, theft, a Class A misdemeanor, in

      exchange for Miller’s guilty plea.


[6]   On August 19, 2019, the trial court conducted Miller’s sentencing hearing. In

      imposing its sentence, the trial court found Miller’s juvenile and adult criminal

      history and the prior revocation of Miller’s probation placement as aggravating

      circumstances. The trial court found Miller’s entry of a guilty plea and his

      “diagnose[s] [for] certain mental health issues” to be mitigating circumstances.

      Id. at 64. The trial court sentenced Miller to: Count I, two years; Count II, two

      years; Count III, six months; and Count V, one year. Counts I, II, and V were

      ordered to be served consecutively to one another, and Count III was ordered to



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2172 | March 6, 2020   Page 3 of 8
      be served concurrently with Counts I and II, for an aggregate sentence of five

      years in the Department of Correction. Miller now appeals.


                                                  Analysis
[7]   Miller argues that his five-year aggregate sentence is inappropriate in light of the

      nature of his offenses and his character. Indiana Appellate Rule 7(B) provides

      that this Court may revise a sentence authorized by statute if, after due

      consideration of the trial court’s decision, we find that the sentence “is

      inappropriate in light of the nature of the offense and the character of the

      offender.” The defendant bears the burden to persuade this Court that his or

      her sentence is inappropriate. Wilson v. State, 966 N.E.2d 1259, 1266 (Ind. Ct.

      App. 2012) (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).


[8]   In Indiana, trial courts can tailor an appropriate sentence to the circumstances

      presented; the trial court’s judgment receives “considerable deference.” Sanders

      v. State, 71 N.E.3d 839, 844 (Ind. 2017) (quoting Cardwell v. State, 895 N.E.2d

      1219, 1222 (Ind. 2008)). In conducting our review, we do not look to see

      whether the defendant’s sentence is appropriate or “if another sentence might

      be more appropriate; rather, the question is whether the sentence imposed is

      inappropriate.” Sanders, 71 N.E.3d at 844 (citing King v. State, 894 N.E.2d 265,

      268 (Ind. Ct. App. 2008)).


[9]   When determining whether a sentence is inappropriate, 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. The sentencing range for a

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2172 | March 6, 2020   Page 4 of 8
       Level 6 felony is six months to two and one-half years, with an advisory

       sentence of one year. See Ind. Code § 35-50-2-7. Here, for Miller’s three Level

       6 felony convictions, the trial court imposed a one-year advisory sentence and

       two, enhanced two-year sentences, to be served consecutively, for an aggregate

       five-year term. Although Miller faced a maximum sentence of eight and one-

       half years, Miller received a five-year aggregate sentence. 1


[10]   Our analysis of the “nature of the offense” requires us to look at the extent and

       depravity of the offense rather than comparing the instant facts to other cases.

       Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002). The nature of the

       instant offenses is as follows: Miller stole miscellaneous items from Auto Zone;

       soon thereafter, Miller was caught in the act of stealing and concealing

       merchandise from Advanced Auto. When Officer Wood confronted Miller,

       Miller struck Officer Wood with a canned drink and tried to run over Officer

       Wood in an attempt to flee. When Officer Wood attempted to restrain him,

       Miller elbowed Officer Wood’s eye. Miller threw punches and continued to

       resist until another officer tased him. Miller admits that he was under the

       influence of methamphetamine when he committed the instant offenses.


[11]   Regarding Miller’s character, our assessment of the character of an offender

       requires us to consider the defendant’s background, criminal history, age, and




       1
        The sentencing range for a Class A misdemeanor is a fixed term of not more than one year. See I.C. § 35-
       50-3-2. The trial court imposed a six-month sentence for Miller’s Class A misdemeanor conviction but
       ordered the sentence to be served concurrently with the other counts. Thus, Miller’s Class A misdemeanor
       conviction did not result in additional executed time.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2172 | March 6, 2020                   Page 5 of 8
       remorse. See James v. State, 868 N.E.2d 543, 548-49 (Ind. Ct. App. 2007).

       According to the presentence investigation report, Miller is diagnosed with

       bipolar disorder, paranoid schizophrenia, anxiety, depression, attention deficit

       disorder, and attention deficit hyperactivity disorder. 2 We are sympathetic to

       Miller’s mental health challenges and note that the trial court considered his

       mental health diagnoses in rendering its sentence.


[12]   “The significance of a criminal history in assessing a defendant’s character is

       based on the gravity, nature, and number of prior offenses in relation to the

       current offense.” Boling v. State, 982 N.E.2d 1055, 1060 (Ind. Ct. App. 2013)

       (citing Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007)). Even a

       minor criminal history is a poor reflection of a defendant’s character. Moss v.

       State, 13 N.E.3d 440, 448 (Ind. Ct. App. 2014).


[13]   As a juvenile, Miller was adjudicated as a delinquent for offenses that, if

       committed by an adult would be theft, a Class A misdemeanor (three times);

       theft, a Class D felony; and illegal possession of alcohol, a Class C

       misdemeanor. Miller was placed on supervised probation as a juvenile;




       2
         In his brief, Miller asserts that his “serious diagnosed mental health issues” contributed to his crimes.
       Miller’s Br. p. 6. The State appears to regard Miller’s cursory reference to his diagnoses as an argument that
       the trial court failed to identify a significant mitigating factor. We do not agree because Miller’s assertion
       lacks any meaningful argument or citation to authority. See Ind. App. R. 46(A)(8) (“The argument must
       contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each
       contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the
       Record on Appeal relied on, in accordance with Rule 22.”).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2172 | March 6, 2020                       Page 6 of 8
       however, the juvenile court modified its dispositional order because Miller

       continued to commit new offenses, including testing positive for marijuana.


[14]   As an adult, Miller amassed three felony convictions before the instant offenses.

       Miller’s adult criminal record, including subsequent offenses, 3 includes

       convictions for burglary, a Class B felony; battery with a deadly weapon, a

       Class C felony; theft, a Class D felony4; theft with a prior conviction, a Level 6

       felony; theft, a Level 6 felony; residential entry, a Level 6 felony; possession of

       methamphetamine, a Level 6 felony; and resisting law enforcement, a Class A

       misdemeanor. Miller has also received sentencing grace and conditional liberty

       via a placement in a community corrections program; however, he admitted to

       violating the terms of the program and was remanded to the DOC to serve a

       previously suspended sentence.


[15]   It is clear that Miller has issues with drugs and alcohol. Miller has admitted to

       regular use of alcohol, prescription pills, marijuana, and/or methamphetamine

       since he was thirteen years old. Miller was under the influence of

       methamphetamine when he battered Officer Wood. According to the

       presentence investigation report (“PSI”), Miller admitted to daily drug use for

       the three-month period preceding his “most recent arrest.” Conf. App. Vol. II



       3
         While Miller awaited sentencing for the instant offenses, he committed—and subsequently pleaded guilty
       to—theft with a prior conviction for theft, a Level 6 felony; residential entry, a Level 6 felony; theft, a Class A
       misdemeanor; possession of methamphetamine, a Level 6 felony; and resisting law enforcement, a Class A
       misdemeanor. Miller was sentenced for the instant and subsequent offenses in a consolidated sentencing
       hearing.
       4
           In 2012, Miller was found guilty but mentally ill of theft, a Class D felony.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2172 | March 6, 2020                          Page 7 of 8
       p. 38. Miller’s inability or unwillingness to seek treatment for his substance

       abuse does not aid his effort to persuade us that his sentence is inappropriate.


[16]   Miller has not been deterred from criminal activity by his frequent contacts with

       the justice system or by the leniency of juvenile and trial court judges. Miller

       has been arrested five times since he committed the instant offenses. Sadly,

       Miller’s criminal history is that of an unrepentant 5 thief and reflects his

       complete disregard for the law. Miller’s sentence is not inappropriate.


                                                    Conclusion

[17]   Miller’s sentence is not inappropriate in light of the nature of his offenses and

       his character. 6 We affirm.


[18]   Affirmed.


       Najam, J., and Vaidik, J., concur.




       5
        According the PSI, Miller is “in the VERY HIGH risk category to reoffend” on the IRAS overall risk
       assessment system. Conf. App. Vol. II p. 38 (emphasis in original). The five arrests resulted in additional
       convictions for two misdemeanor offenses and three felonies, including residential entry and theft (twice).
       6
        Miller’s one-paragraph contention that “the behavior that gave rise to the[ ] [instant] charges constituted
       one single episode of physical resistance to law enforcement causing injury” is waived for failure to make a
       cogent argument. See Ind. App. R. 46(A)(8).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2172 | March 6, 2020                      Page 8 of 8
