MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Jul 31 2019, 10:56 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
Yvette M. LaPlante                                       Curtis T. Hill, Jr.
LaPlante LLP                                             Attorney General of Indiana
Evansville, Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jarvice Sears,                                           July 31, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-478
        v.                                               Appeal from the Vanderburgh
                                                         Superior Court
State of Indiana,                                        The Honorable Robert Pigman,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         82D03-1510-F1-6635



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-478 | July 31, 2019                       Page 1 of 14
                                Case Summary and Issue
[1]   Following a jury trial, Jarvice Sears was found guilty of two counts of Level 1

      felony burglary, one count of Level 2 felony attempted robbery, four counts of

      Level 3 felony attempted robbery, and two counts of Level 3 felony aggravated

      battery. The trial court sentenced Sears to an aggregate sentence of sixty-nine

      years executed in the Indiana Department of Correction (“DOC”). On direct

      appeal, Sears alleged that several of his convictions violated double jeopardy

      and that his sentence was inappropriate. See Sears v. State, No. 82A01-1708-CR-

      1815 (Ind. Ct. App. July 17, 2018). We concluded that Sears’s convictions for

      two counts of Level 1 felony burglary could not stand and remanded with

      instructions to vacate a burglary conviction. We also remanded with

      instructions to vacate Sears’s convictions for the two counts of Level 3 felony

      aggravated battery. We chose not to address Sears’s contention that his sixty-

      nine-year sentence was inappropriate, finding such review premature, and we

      instructed the trial court to resentence him. At resentencing, Sears was

      sentenced to fifty-nine years in the DOC. Sears now appeals, raising one issue

      for our review, that is, whether his sentence is inappropriate in light of the

      nature of the offenses and his character. Concluding that the sentence is not

      inappropriate, we affirm.



                            Facts and Procedural History
[2]   We summarized the facts and procedural history of this case in Sears’s direct

      appeal:

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-478 | July 31, 2019   Page 2 of 14
        There are two upstairs apartments above the 711 Tavern on 711
        West Virginia Street in Evansville, Apartments A and B, which
        are accessed by a common hallway. In October of 2015, Jeremy
        Herbert lived in Apartment A, and Logan Orth used the
        apartment to deal marijuana. On October 25, 2015, Diego
        Thomas and Marquell Jackson decided to rob Orth because
        Thomas knew that Orth was a drug dealer and believed that he
        would have money and drugs. On October 26, 2015, Thomas
        went [to] the home of his cousin Sears to retrieve his rifle and
        asked Sears to procure an additional firearm. Jackson recruited
        O’Neil Bruin and Cory Cain to participate in the robbery.


        Later[,] on October 26, 2015, Bruin, Jackson, Thomas, and Sears
        exited their vehicle at 711 West Virginia Street, while Cain, the
        driver, stayed behind. The quartet entered the building and went
        upstairs, and three of them entered Apartment A with masks on
        and guns drawn. Orth, Herbert, Emily Todisco, Leah Walker,
        Colton Claybrooks, Kaylee Rocca, Brayden Scott, and three of
        Herbert’s friends were smoking marijuana in Apartment A at the
        time. Sears threw a bag on the table and demanded that
        everyone in the room fill it with their valuables. Orth managed
        to retrieve his handgun from under a couch and attempted to fire
        it twice at the intruders, but it misfired. Sears shot Orth in the
        throat and chest.


        Meanwhile, Cameron Kendall was helping his brother, who lived
        in Apartment B, move out that evening. Kendall happened to
        have a concealed-carry permit and was armed. Kendall’s brother
        was loading items into a vehicle when Kendall heard shots, and
        he decided to check on his brother. As soon as Kendall opened
        the door to Apartment B, Sears shot him in the abdomen.
        Kendall returned fire until he ran out of ammunition, shooting
        Bruin in the right leg and left shoulder, Thomas in the hip, and
        Sears in the chest and back.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-478 | July 31, 2019   Page 3 of 14
              The State ultimately proceeded to jury trial on charges of two
              counts of Level 1 felony burglary resulting in serious bodily
              injury where Orth and Kendall were the victims; Level 2 felony
              attempted robbery resulting in serious bodily injury where Orth
              was the victim; four counts of Level 3 felony attempted robbery
              threatening to use force while armed where Herbert, Todisco,
              Walker, and Claybrooks were the victims; and two counts of
              Level 3 felony aggravated battery where Orth and Kendall were
              the victims. The jury found Sears guilty as charged. The trial
              court entered judgment of conviction on all of the jury’s verdicts
              but did not impose sentences for Level 2 felony attempted
              robbery or the two counts of Level 3 felony aggravated battery
              due to double jeopardy concerns. The trial court sentenced Sears
              to thirty years of incarceration for each of the Level 1 felony
              burglary convictions, to be served consecutively, and nine years
              for each of the Level 3 felony attempted robbery convictions, to
              be served concurrent with each other but consecutive to the
              burglary sentences, for an aggregate sentence of sixty-nine years.


      Id. at *1-2. Sears was nineteen years old at the time the crimes were committed.


[3]   On direct appeal, Sears’s appellate counsel raised three issues: (1) his two

      convictions for Level 1 felony burglary violated prohibitions against double

      jeopardy, (2) his convictions for Level 2 felony attempted robbery and Level 3

      felony aggravated battery violated common-law prohibitions against multiple

      punishment for the same harm, and (3) his sixty-nine-year sentence was

      inappropriate. Id. at *1. A panel of this court affirmed in part, reversed in part,

      and remanded with instructions to “(1) vacate Sears’s Level 1 felony burglary

      conviction . . . , (2) vacate his two convictions for Level 3 felony aggravated

      battery, and (3) resentence him. Id. at *4. We chose not to review Sears’s

      sentence for appropriateness, finding the issue premature.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-478 | July 31, 2019   Page 4 of 14
[4]   On February 14, 2019, the trial court vacated one of Sears’s burglary

      convictions and both of his aggravated battery convictions. The trial court

      subsequently resentenced Sears to thirty years on the remaining burglary

      conviction, twenty years on the Level 2 attempted robbery conviction, and nine

      years for each of his four convictions for Level 3 attempted robbery. The Level

      3 sentences were ordered to be served concurrent with each other but

      consecutive to the burglary and Level 2 attempted robbery sentences. Sears

      received an aggregate sentence of fifty-nine years executed at the DOC. Sears

      now appeals. Additional facts will be supplied as necessary.



                                 Discussion and Decision
                                   I. Inappropriate Sentence
[5]   Sears argues his sentence is inappropriate in light of the nature of his offenses

      and his character. Sears contends that his sentence is an “outlier that this Court

      should remedy.” Appellant’s Reply Brief at 7. He asks this court to revise his

      sentence “to a term of years consistent with that of his [codefendants] and

      other[s] who commit these types of crimes.” Id.


[6]   At his original sentencing hearing, the trial court found as follows regarding

      aggravating and mitigating circumstances:


              The most significant aggravating circumstance here is the nature
              and circumstances of the offense. This is a shocking level of
              violence for a civilized society. Besides yourself Mr. Sears, four
              other human beings were shot with guns, just abhorrent. That
              can’t – civilized society cannot tolerate that kind of behavior.
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-478 | July 31, 2019   Page 5 of 14
              Four other human beings besides yourself were shot [and] at least
              three of them were seriously injured, could have had serious and
              significant risks of death to at least two of them and at least one
              of them still suffers from permanent – apparently permanent
              injuries as a result of what happened. A shoot[-]out in a city in a
              residential setting is just, is just shocking to common sensibilities
              and morality and decency. There were six different victims here.
              Two of them that were seriously injured, two of your
              confederates were shot besides yourself. There were handguns
              and weapons that had been deliberately procured and
              deliberately made a part of this, this scheme. That’s the
              aggravating circumstance that outweighs everything else in the,
              in the case. It was a deliberate plan to arm yourselves and do
              whatever it takes, use whatever amount of force was necessary to
              get some marijuana and some money and, and as a result, four,
              five people, I include you in this, were hurt pretty bad.


      [Prior Case] Transcript of Evidence, Volume 4 at 153-54. The trial court

      sentenced Sears to thirty years for each of the Level 1 felony burglary

      convictions, to be served consecutively, and nine years for each of the Level 3

      felony attempted robbery convictions, to be served concurrent with each other

      but consecutive to the burglary sentences, for an aggregate sentence of sixty-

      nine years. The trial court determined that consecutive sentences were

      warranted because of the “aggravating nature and circumstances of the

      offenses[,]” and because “each victim deserve[d] their own sentence.” Id. at

      154.


[7]   On remand, the trial court resentenced Sears to an aggregate sentence of fifty-

      nine years, specifically:



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-478 | July 31, 2019   Page 6 of 14
              Count two, the burglary a [L]evel one felony be thirty years in
              the Indiana Department of Corrections. Count 5, the robbery a
              [L]evel two will be twenty years in the Indiana Department of
              Corrections those sentences will be served consecutively and the
              remanding [sic] counts, seven, eight, nine and ten[, all Level 3
              felonies,] will all be nine years executed. Those are all the
              presumptive [sic] sentences in this cases [sic]. Those will be
              concurrent to each other, but consecutive to counts two and
              counts five for a total sentence of fifty-nine years. That sentence
              will be executed.


      [Remand] Transcript of Evidence, Volume 2 at 6. The trial court did not

      discuss any additional mitigating or aggravating circumstances, apparently

      relying upon those set forth at Sears’s original sentencing.


                                      II. Standard of Review
[8]           We may review and revise criminal sentences pursuant to the
              authority derived from Article 7, Section 6 of the Indiana
              Constitution. Indiana Appellate Rule 7(B) empowers us to revise
              a sentence “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.” Because
              a trial court’s judgment “should receive considerable
              deference[,]” our principal role is to “leaven the outliers.”
              Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008). “Such
              deference should prevail unless overcome by compelling
              evidence portraying in a positive light the nature of the offense
              (such as accompanied by restraint, regard, and lack of brutality)
              and the defendant’s character (such as substantial virtuous traits
              or persistent examples of good character).” Stephenson v. State, 29
              N.E.3d 111, 122 (Ind. 2015). The defendant bears the burden to
              persuade this court that his or her sentence is inappropriate,
              Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006), and we may
              look to any factors appearing in the record for such a

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-478 | July 31, 2019   Page 7 of 14
              determination, Stokes v. State, 947 N.E.2d 1033, 1038 (Ind. Ct.
              App. 2011), trans. denied.


      Reis v. State, 88 N.E.3d 1099, 1101-02 (Ind. Ct. App. 2017). The question under

      Appellate Rule 7(B) analysis is “not whether another sentence is more

      appropriate” but rather “whether the sentence imposed is inappropriate.” King

      v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Whether a sentence is

      inappropriate “turns on our sense of the culpability of the defendant, the

      severity of the crime, the damage done to others, and myriad other factors that

      come to light in a given case.” Cardwell, 895 N.E.2d at 1224. Generally,

      multiple victims justify the imposition of enhanced and consecutive sentences.

      Tyler v. State, 903 N.E.2d 463, 468 (Ind. 2009). Although we need not compare

      the sentences of codefendants, we are not precluded from comparing sentences

      among those convicted of the same or similar crimes. Knight v. State, 930

      N.E.2d 20, 22 (Ind. 2010).


[9]   We begin with the advisory sentence in determining the appropriateness of a

      sentence. Childress, 848 N.E.2d at 1081. Since the advisory sentence is the

      starting point our General Assembly has selected as an appropriate sentence for

      the crime committed, the defendant bears a particularly heavy burden in

      persuading us that his sentence is inappropriate when the trial court imposes

      the advisory sentence. Golden v. State, 862 N.E.2d 1212, 1216 (Ind. Ct. App.

      2007), trans. denied. The advisory sentence for a Level 1 felony is thirty years,

      with a minimum sentence of twenty years and a maximum sentence of forty

      years. Ind. Code § 35-50-2-4(b). The sentencing range for a Level 2 felony is “a

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-478 | July 31, 2019   Page 8 of 14
       fixed term of between ten (10) and thirty (30) years, with the advisory sentence

       being seventeen and one-half (17½) years.” Ind. Code § 35-50-2-4.5. A

       Level 3 felony carries a sentencing range of three to sixteen years, with an

       advisory sentence of nine years. Ind. Code § 35-50-2-5(b). Sears was sentenced

       to the advisory sentence for the Level 1 and Level 3 felonies. For the Level 2

       felony, his sentence was only two and one-half years longer than the advisory

       sentence but twelve and one-half years shorter than the maximum sentence.


                                   III. Nature of the Offenses
[10]   Sears does not attempt to mitigate the seriousness of his offenses, which are

       egregious. He argues, however, that the nature of the offenses does not warrant

       a fifty-nine-year sentence because he did not shoot until he was shot at, and his

       attempts to retreat were met with an individual using deadly force. We

       disagree.


[11]   Evidence presented at trial indicated that Sears knew of his codefendants’ plan

       to rob a drug dealer and that Sears was a willing participant. Prior to arriving at

       the scene of the crime, Sears armed himself with a .45 caliber semi-automatic

       handgun. Evidence was presented that Sears had an opportunity to call-off the

       robbery but chose to proceed.


[12]   Video surveillance footage showed that Sears led his group of codefendants into

       the apartment building, up the stairs, and to the apartment where Orth

       conducted his business. Once inside the apartment, Sears pointed a loaded

       handgun at the ten occupants of the apartment, putting them in fear for their

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-478 | July 31, 2019   Page 9 of 14
       lives, then threw a backpack on the table and demanded that they place their

       valuables into the bag. The fact that Orth tried to thwart the robbery, by pulling

       out his firearm and attempting to shoot Sears, does not attenuate the

       egregiousness of Sears’s next act, that is, firing his handgun multiple times in a

       confined area, first wounding Orth, then, minutes later, wounding Kendall—an

       innocent bystander. Orth was shot in the throat and chest. He testified that the

       gunshots “blew out my [main] artery in my shoulder[,] which is the main one

       that pumps through the top of your body.” [Prior Case] Tr., Vol. 3 at 125. His

       injuries could have proved fatal had he waited for an ambulance rather than

       being transported to the hospital by friends. Kendall was shot in the abdomen

       and testified that as a result of the shooting, his right leg is “still half[-]way

       numb[;]” he had to have two feet of his intestines removed; and he suffers from

       a slipped disc in his lower back. [Prior Case] Tr., Vol. 4 at 42. Given the

       nature of the offenses, we find that Sears’s sentence is not inappropriate.


[13]   Sears also contends that his sentence is inappropriate because he is no more or

       less culpable than his codefendants, Marquell Jackson, O’Neil Bruin, and

       Diego Thomas, yet he “is serving twenty-four years more than any other person

       who was involved [in the] crime.” Appellant’s Brief at 12. According to Sears,


               when three other individuals all involved in the same crime have
               received significantly lighter sentences, it seems clear that this
               Court must provide some balance between the punishment Sears
               received and those received by his [codefendants], especially
               since there is no evidence to suggest that Sears was the ringleader
               or had more culpability than any other [codefendant].


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-478 | July 31, 2019   Page 10 of 14
       Id. at 13. Sears argues that his sentence should, therefore, be in a range similar

       to his codefendants.1 Sears also invites this court to “look at [his] sentence

       against the scope of all sentences, rather than just comparing his sentence to

       that of his codefendants[;]” and, for guidance, “look at statutory guides for

       offenses where consecutive sentences are given[,]” as the “legislature has

       capped consecutive sentences in some instances.” Id.


[14]   Even if we do compare sentences, which we are not required to do, we find that

       Sears’s aggregate sentence is appropriately longer than his codefendants. While

       Sears testified at trial that he did not know that the codefendants were planning

       to rob Orth and that his only plan that day was to purchase $1,000.00 worth of

       marijuana, additional evidence was presented that Sears’s involvement in the

       robbery stemmed from his willingness to provide a gun for the heist. When

       Sears and his codefendants arrived at the apartment building, Sears served as a

       scout and surveilled the scene of the impending robbery. He then led his group

       of codefendants into the apartment building, up the stairs, and to the apartment

       where Orth conducted his business. Once inside the apartment, Sears pointed a




       1
         Jackson is serving thirty-five years for his role in the crime after an appeal and being resentenced by the
       Vanderburgh Circuit Court. See mycase.IN.gov, State v. Jackson, Cause No. 82C01-1510-F1-6686,
       https://public.courts.in.gov/mycase/#/vw/Search (last accessed July 17, 2019). Bruin was sentenced to
       twenty years. See mycase.IN.gov, State v. Bruin, 82C01-1510-F1-6636, https://public.courts.in.gov/mycase/
       #/vw/Search (last accessed July 17, 2019). Thomas was sentenced to fifteen years, with the first forty-two
       months executed and the balance suspended on the condition that he complete a drug abuse probation
       services program. See mycase.IN.gov, State v. Thomas, Cause No. 82D03-1510-F1-6634,
       https://public.courts.in.gov/mycase/#/vw/ Search (last accessed July 17, 2019). Codefendant Corey Cain,
       the getaway driver, is serving six years. See mycase.IN.gov, State v. Cain, Cause No. 82D03-1510-F1-6676,
       https://public.courts.in.gov/mycase/#/vw/Search (last accessed July 17, 2019). Thomas and Bruin testified
       in Sears’s trial and pleaded guilty to their roles in the crime.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-478 | July 31, 2019                   Page 11 of 14
       loaded handgun at the ten occupants of the apartment and attempted to rob

       them. Sears fired the handgun multiple times, first wounding Orth then,

       minutes later, wounding Kendall—an innocent bystander. Both Orth and

       Kendall were critically wounded.


[15]   Even if the exchange of gunfire was completely unexpected, this does not

       change the fact that Sears participated in a robbery in which he provided the

       gun, brandished the gun, and ultimately fired the gun—critically wounding two

       individuals. Given the circumstances of Sears’s involvement in the crime, the

       fact that Sears received a longer sentence than his codefendants received does

       not support his claim that his sentence is an “outlier” and, therefore,

       inappropriate.


                                   IV. Character of the Offender
[16]   As to his character, Sears argues that he has no prior adult criminal history; he

       has not previously served a long-term executed sentence; he was categorized as

       having a moderate risk to reoffend on the Indiana Risk Assessment tool; this is

       his first felony conviction; he is the youngest of his codefendants and “was not

       thought to be the ringleader” of the heist; he has a child;2 and he held jobs after




       2
         The child that Sears claims to have is actually his girlfriend’s child. At sentencing, Sears’s counsel clarified
       Sears’s relationship with the child as follows: “This young man talked about that kid as his child but stated
       to me no, that’s not my kid[,] . . . so we deliberately set out to correct that[.] . . . [W]e never set out to
       deliberately claim this [child] as a dependent.” [Prior Case] Tr., Vol. 4 at 153.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-478 | July 31, 2019                         Page 12 of 14
       his high school graduation. Id. at 17. We are unpersuaded that Sears’s

       character warrants a reduction of his sentence.


[17]   Sears has no prior adult criminal history, however, he has a history of juvenile

       adjudications, including adjudications for what would have been burglary (in

       2009), theft (2009 and 2012), and trespass and false informing (2012) if

       committed by an adult. He was placed on probation, but was twice

       unsatisfactorily released from probation. Since the age of seventeen, he has

       used marijuana daily, and at the time of his arrest, he was smoking

       approximately three to four grams of marijuana each day.


[18]   While the State agreed that Sears’s age (nineteen years old) at the time he

       committed the crimes was a mitigating circumstance, the State argued, and we

       agree, that it was not a significant mitigator. Our supreme court has held that a

       young age does not “automatically” qualify as a significant mitigator. Gross v.

       State, 769 N.E.2d 1136, 1141 n.4 (Ind. 2002). In fact, it “is neither a statutory

       nor a per se mitigating factor. There are cunning children and there are naïve

       adults.” Sensback v. State, 720 N.E.2d 1160, 1164 (Ind. 1999). Accordingly,

       when a defendant is in his teens or early twenties, chronological age is only the

       starting point. Monegan v. State, 756 N.E.2d 499, 504 (Ind. 2001). What really

       must be determined is whether the young offender is “clueless” or “hardened

       and purposeful.” Id.


[19]   Sears was not “clueless” when he armed himself and willingly participated in

       the robbery. As the State noted, Sears was not fifteen or sixteen years old when


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-478 | July 31, 2019   Page 13 of 14
       he committed the crimes. He was nineteen, and as the State pointed out at

       sentencing, he is “mature, lives on his own and holds two jobs, [and] gets good

       grades[,]” and should have appreciated that robbing individuals at gunpoint

       carries consequences. [Prior] Tr., Vol. 4 at 150. Sears’s contacts with the

       juvenile justice system, his inability to complete probation, his disregard for the

       law, and his willing participation in a robbery that, due to his decision to arm

       himself, escalated to a shocking level of violence reveals character that does not

       merit sentence revision under Appellate Rule 7(B).


[20]   Under these facts and circumstances, we cannot conclude that Sears’s fifty-nine-

       year sentence is inappropriate in light of the nature of his offenses and his

       character. We decline to revise it under Appellate Rule 7(B).



                                               Conclusion
[21]   In conclusion, Sears’s sentence is not inappropriate given the nature of the

       offenses and his character.


[22]   Affirmed.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-478 | July 31, 2019   Page 14 of 14
