                                                                                           FILED
MEMORANDUM DECISION                                                                    Apr 21 2016, 9:19 am

                                                                                           CLERK
Pursuant to Ind. Appellate Rule 65(D), this                                            Indiana Supreme Court
                                                                                          Court of Appeals
Memorandum Decision shall not be regarded as                                                and Tax Court

precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                  Gregory F. Zoeller
Brooklyn, Indiana                                      Attorney General of Indiana
                                                       Tyler G. Banks
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Dustin J. Spence,                                          April 21, 2016

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           84A01-1509-CR-1414

        v.                                                 Appeal from the Vigo Superior
                                                           Court
State of Indiana,                                          The Honorable John T. Roach,
                                                           Judge
Appellee-Plaintiff
                                                           Trial Court Cause No. 84D01-1501-
                                                           F4-267




Bradford, Judge.



                                      Case Summary
Part of a group that calls itself “The Squad” (Appellant’s App. 8), Defendant-

Appellant Dustin Spence drove two friends to a residence, knowing they

Court of Appeals of Indiana | Memorandum Decision 84A01-1509-CR-1414| April 21, 2016             Page 1 of 5
      intended to commit theft therein. Appellee-Plaintiff the State of Indiana (“the

      State”) charged Spence with burglary and theft. Pursuant to a plea agreement,

      Spence pled guilty to burglary in exchange for dismissal of the theft and gang

      enhancement charges. The trial court sentenced Spence to six years of

      incarceration. Spence argues that his sentence is inappropriate because his role

      in the burglary was minor and his character evinces rehabilitation. Because

      Spence has failed to establish his sentence was inappropriate, we affirm.



                            Facts and Procedural History
[1]   Spence, Matt Hensley, and Steven Perry were part of a group who called

      themselves the “The Squad.” Appellant’s App. p. 8. On January 5, 2015,

      Spence drove Hensley and Perry to the residence of Veronica Kraemer and

      Dustin Nally in Terre Haute, Vigo County. Spence knew that Hensley and

      Perry entered the residence with intent to commit theft, though Spence did not

      enter the residence himself.


[2]   On January 29th, the State charged Spence with burglary and theft of Kraemer

      and Nally’s two video-gaming systems, video games, and a fifty-two-inch flat-

      screen television. Under his plea agreement, Spence agreed to plead guilty to

      Level 4 felony burglary in return for dismissal of the theft and gang

      enhancement charges. Spence’s plea agreement capped his sentence at six

      years.




      Court of Appeals of Indiana | Memorandum Decision 84A01-1509-CR-1414| April 21, 2016   Page 2 of 5
[3]   At sentencing, the trial court found Spence’s criminal history exemplifies a

      “typical escalation” and no evidence that his criminal activity is nonrecurring.

      Tr. p. 26. Accordingly, the trial court sentenced Spence to six years: four to be

      executed as a direct commitment to In-Home Detention and the other two

      suspended to formal probation. Spence contends that given certain mitigating

      circumstances, his sentence was inappropriate.


                                 Discussion and Decision
                                Appropriateness of Sentence
[4]   This court “may revise a sentence authorized by statute if, after due

      consideration of the trial court's decision, the Court finds that the sentence 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

      persuading this court that his sentence is inappropriate. See Hollar v. State, 916

      N.E.2d 741, 743 (Ind. Ct. App. 2009) (citing Reid v. State, 876 N.E.2d 1114,

      1116 (Ind. 2007)). Furthermore, when considering an inappropriateness

      challenge, “[w]e must exercise great restraint in reviewing and revising

      sentences and recognize the special expertise of the trial bench in making

      sentencing decisions.” Wells v. State, 836 N.E.2d 475, 480 (Ind. Ct. App. 2005).


[5]   As to the nature of the offense, Spence argues that his role in the burglary was

      minor compared to Hensley and Perry’s roles. Spence emphasizes that he did

      not participate in the actual burglary itself but merely drove Hensley and Perry

      to the victim’s house. However, a person who assists in a crime is nevertheless

      Court of Appeals of Indiana | Memorandum Decision 84A01-1509-CR-1414| April 21, 2016   Page 3 of 5
      equally culpable as those who committed the crime, Ind. Code 35-41-2-4, as

      Spence acknowledged. Moreover, no authority requires that co-participants

      receive proportional sentencing. Lopez v. State, 527 N.E.2d 1119, 1133 (Ind.

      1988).


[6]   As to his character, Spence argues that his voluntary life changes should be

      acknowledged as a reflection on his character and justify a reduction in his

      sentence. Specifically, Spence claims he has broken ties with Hensley and

      Perry, become employed, attempted to enroll in school, and complied with all

      the conditions imposed upon him while on pretrial home detention.

      Notwithstanding these life changes, we find that several other circumstances

      outweigh them.


[7]   Defendants’ criminal records can be relevant in determining their character,

      revealing whether they are deterred from committing future offenses. See Cotto

      v. State, 829 N.E.2d 520, 526 (Ind. 2005). Even a minor criminal record can be

      relevant in assessing character. Rutherford v. State, 866 N.E.2d 867, 874 (Ind.

      Ct. App. 2007). Whether prior offenses are significant depend on “the gravity,

      nature and number of prior offenses as they relate to the current offense.”

      Wooley v. State, 716 N.E.2d 919, 929 n.4 (Ind. 1999).


[8]   From 2010 to 2013, Spence committed six offenses, four of which were felony

      property crimes. Specifically, one of those four was for burglary. We agree

      with the trial court that Spence’s criminal record indicates “typical escalation,”

      tr. p. 26, given that these past offenses are similar to the current offense and that


      Court of Appeals of Indiana | Memorandum Decision 84A01-1509-CR-1414| April 21, 2016   Page 4 of 5
       Spence has not been deterred by his prior contacts with the criminal justice

       system.


[9]    Additionally, Spence argues that his guilty plea should be taken into

       consideration as a reflection of character because his plea shows that he has

       accepted responsibility and it saves the State time and expenses by foregoing

       trial. First, after review of the probable cause affidavit in Spence’s case, the

       State clearly had substantial evidence of Spence’s guilt. Second, Spence

       received substantial benefit from his plea agreement. The maximum sentence

       for a Level 4 felony is twelve years and Spence’s sentence was capped at six.

       Ind. Code § 35-50-2-5.5. The State also agreed to drop the theft and gang

       enhancement charges against Spence. Spence was not ordered to serve any of

       his six-year sentence in the Department of Correction; instead, he was allowed

       to execute four of those years on In-Home Detention and the other two were

       suspended to formal probation.


[10]   Defendant has failed to persuade us that his sentence was inappropriate. The

       judgment of the trial court is affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A01-1509-CR-1414| April 21, 2016   Page 5 of 5
