MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any
court except for the purpose of establishing                       Sep 29 2017, 11:27 am

the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
estoppel, or the law of the case.                                      Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael P. DeArmitt                                      Curtis T. Hill, Jr.
Columbus, Indiana                                        Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Lee Campbell,                                    September 29, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         03A04-1705-CR-1054
        v.                                               Appeal from the Bartholomew
                                                         Circuit Court
State of Indiana,                                        The Honorable Kelly S. Benjamin,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         03C01-1610-F6-5903



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A04-1705-CR-1054 | September 29, 2017   Page 1 of 7
                                       Statement of the Case
[1]   Michael L. Campbell (“Campbell”) appeals his sentence, which was imposed

      following his guilty plea to Level 6 felony theft.1 He argues that his sentence

      was inappropriate under Indiana Appellate Rule 7(B) in light of the nature of

      his offense and his character. We conclude that his sentence was not

      inappropriate and affirm the trial court.

[2]   We affirm.


                                                     Issue
                 Whether Campbell’s sentence was inappropriate in light of the
                 nature of his offense and his character.

                                                     Facts
[3]   On October 28, 2016, the State charged Campbell with theft, which was

      elevated to a Level 6 felony based on Campbell’s prior unrelated conviction for

      theft. Two weeks later, the State charged him with another Level 6 felony theft

      charge in another cause. On March 6, 2017, Campbell pled guilty to Level 6

      felony theft in the instant cause in exchange for the State’s dismissal of the other

      charge against him. The plea agreement left sentencing to the discretion of the

      trial court.




      1
          IND. CODE § 35-43-4-2.


      Court of Appeals of Indiana | Memorandum Decision 03A04-1705-CR-1054 | September 29, 2017   Page 2 of 7
[4]   The trial court held a sentencing hearing on April 13, 2017. During the

      hearing, Campbell admitted that he had stolen two Dyson Ball vacuum cleaners

      from Wal-Mart, which he had hoped to sell for half price to get money for

      drugs. He testified that he had been a heroin addict since he was eighteen years

      old and had many previous convictions for theft because he kept stealing to

      finance his drug addiction. He requested that the trial court impose a sentence

      that would allow him to receive drug addiction treatment and have a slow

      transition back to living on his own.

[5]   The State introduced Campbell’s pre-sentence investigation report (“PSI”),

      which indicated that Campbell had been convicted of forty-seven offenses since

      1992—the equivalent of almost two convictions per year—and had been placed

      on probation twenty-six times. The trial court counted sixty probation

      violations in Campbell’s PSI, but Campbell argued that there had been only

      nine separate petitions to revoke his probation. The trial court agreed that it

      was not clear how many times Campbell had violated probation because some

      of the violations listed in the PSI might have only been status hearings.

      Nevertheless, the trial court concluded that, at a minimum, Campbell had

      violated probation “numerous times.” (Tr. Vol. 2 at 24).

[6]   With respect to Campbell’s request to receive drug treatment, Campbell

      acknowledged that he had received an opportunity for drug treatment in 2007

      and had failed to successfully complete that treatment. He also admitted that

      he had been placed in a treatment program in June 2012 and been terminated

      from that program in February 2014. He testified that the reason for his

      Court of Appeals of Indiana | Memorandum Decision 03A04-1705-CR-1054 | September 29, 2017   Page 3 of 7
      termination was that he had missed a therapy appointment. However, he also

      admitted that he had been charged with four new offenses during his time in the

      program, although he claimed those offenses were not the reason for his

      termination. The offenses were one count of trespass, two counts of driving

      with a suspended license, and one count of theft.

[7]   Also at the sentencing hearing, Campbell admitted that he had a lifetime ban

      from Wal-Mart and had attempted to steal a toy there in front of his three-year-

      old child. He acknowledged that, in spite of the ban, Wal-Mart had “cut [him]

      plenty of breaks” over the years by not calling the police when Wal-Mart

      employees caught him stealing. (Tr. Vol. 2 at 20).

[8]   At the conclusion of the hearing, the trial court sentenced Campbell to two and

      one half (2½) years executed in the Department of Correction. The court found

      that Campbell’s criminal history, which included thirty-four misdemeanor

      convictions and thirteen felony convictions, was an aggravating factor, as was

      the fact that he had been terminated from probation at least five times. The

      court noted that fourteen of Campbell’s previous convictions were for theft, the

      same offense he was convicted of here. The court also noted that Campbell had

      previously been offered treatment, and could have pursued treatment on his

      own, but he had not successfully completed treatment. The trial court did not

      find any mitigating circumstances. Instead, the court concluded: “The

      community needs to be protected from you for the maximum time of [sic] that

      can be gained because you’re right, every time you go out, you just go steal

      again.” (Tr. 29). Campbell now appeals.

      Court of Appeals of Indiana | Memorandum Decision 03A04-1705-CR-1054 | September 29, 2017   Page 4 of 7
                                                   Decision
[9]    On appeal, Campbell argues that his sentence was inappropriate in light of the

       nature of his offense and his character.


[10]   We may revise a sentence under Appellate Rule 7(B) 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 persuading us that his

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       The principal role of a 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). “Appellate Rule 7(B) analysis is not to determine whether another

       sentence is more appropriate but rather whether the sentence imposed is

       inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal

       quotation marks and citation omitted), reh’g denied. 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.” Cardwell, 895 N.E.2d at 1224.


[11]   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.

       Campbell was convicted of a Level 6 felony, which carries a sentencing range of


       Court of Appeals of Indiana | Memorandum Decision 03A04-1705-CR-1054 | September 29, 2017   Page 5 of 7
       six (6) months to two and one-half (2½) years, with an advisory sentence of one

       (1) year. Accordingly, Campbell received the maximum sentence possible for

       his Level 6 felony conviction.


[12]   Our review of the nature of Campbell’s offense reveals that he stole two

       vacuum cleaners from Walmart totaling $329.02. He argues that the amount he

       stole was not egregious because the threshold amount to be charged with a

       Level 6 felony is seven hundred fifty dollars ($750). See I.C. § 35-43-4-2(a)(1).

       However, he was charged with a Level 6 felony because he had a “prior

       unrelated conviction” for theft, so the level of his offense was not dependent on

       the amount of merchandise he stole. See id.


[13]   Regardless of the nature of Campbell’s offense, we conclude that his sentence

       was not inappropriate in light of his character. See Sanders v. State, 71 N.E.3d

       839, 843 (Ind. Ct. App. 2017) (noting that Rule 7(B) “plainly requires” that the

       appellant demonstrate that his sentence in inappropriate in light of “both the

       nature of the offense[] and his character”) (emphasis in original), trans. denied.

       As the trial court summarized, Campbell has forty-seven prior convictions,

       including fourteen convictions for theft, which is the same offense as his

       underlying conviction in the instant cause. He has stolen from Wal-Mart so

       many times that he has a lifetime ban from Wal-Mart. Additionally, he admits

       that his convictions do not reflect all the times that he has committed theft as

       Wal-Mart has “cut [him] plenty of breaks” over the years by not calling the

       police when he has been caught stealing. (Tr. Vol. 2 at 20). This egregious

       criminal history demonstrates that Campbell has no respect for the law or for

       Court of Appeals of Indiana | Memorandum Decision 03A04-1705-CR-1054 | September 29, 2017   Page 6 of 7
       others’ property. Likewise, he has multiple convictions for escape and failure to

       return to lawful detention, which also demonstrate his lack of respect for the

       law.


[14]   Campbell acknowledges that he has a significant criminal history but argues

       that his sentence should be rehabilitative rather than punitive and, thus, the trial

       court should have sentenced him to community corrections so that he could

       receive drug addiction treatment and transition slowly back to the community.

       We are not persuaded by this argument as Campbell was offered drug abuse

       treatment in the past and did not take advantage of those treatment

       opportunities. Instead, he has been terminated from every drug treatment

       program in which he has participated. Further, we have long held that

       “[p]lacement on probation or in a community corrections program is a matter

       of grace and not a right.” Johnson v. State, 62 N.E.3d 1224, 1229 (Ind. Ct. App.

       2016). The trial court has granted Campbell leniency and placed him on

       probation twenty-six times in the past. Campbell’s repeated violations of those

       placements on probation indicate that further leniency is not likely to cause him

       to reform.

[15]   In light of the above factors regarding the nature of Campbell’s offense and his

       character, we conclude that his sentence was not inappropriate.

[16]   Affirmed.


       Riley, J., and Robb, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 03A04-1705-CR-1054 | September 29, 2017   Page 7 of 7
