MEMORANDUM DECISION
                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),                          Jun 02 2016, 8:16 am
this Memorandum Decision shall not be
                                                                     CLERK
regarded as precedent or cited before any                        Indiana Supreme Court
                                                                    Court of Appeals
court except for the purpose of establishing                          and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Anthony S. Churchward                                    Gregory F. Zoeller
Deputy Public Defender                                   Attorney General of Indiana
Fort Wayne, Indiana
                                                         Brian Reitz
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tahj R. Thomas,                                          June 2, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A04-1511-CR-2069
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D06-1503-FA-3



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A04-1511-CR-2069 | June 2, 2016      Page 1 of 7
                                Case Summary and Issue
[1]   Tahj R. Thomas pleaded guilty to rape and criminal deviate conduct, both

      Class A felonies. The trial court accepted Thomas’s plea and sentenced him to

      forty years on each count, to be served consecutively, for an aggregate sentence

      of eighty years executed in the Department of Correction. Thomas appeals,

      raising the sole issue of whether his sentence is inappropriate in light of the

      nature of the offenses and his character. Concluding Thomas’s sentence is not

      inappropriate, we affirm his sentence.



                            Facts and Procedural History
[2]   Shortly after midnight on April 29, 2014, D.L. arrived at the apartment

      complex where she lived. Her four-year-old daughter was sleeping in the back

      seat of her vehicle. As she exited her vehicle, a man appeared and pointed a

      gun at her as he instructed her to “give him what she had.” Appellant’s

      Appendix at 14. D.L. dropped her purse, and a second armed man appeared.

      The men instructed D.L. to walk away from her vehicle. When D.L. was

      approximately two cars away, the second man, later identified as Thomas,

      pointed a gun at her and ordered her to undress. As the first man walked back

      to D.L.’s vehicle, eighteen-year-old Thomas ordered D.L. to get on the ground,

      crawl toward him, and perform oral sex. D.L. complied. Thomas threatened

      to kill D.L. and pointed the gun at D.L.’s head and back as she performed oral

      sex. Thomas also forced D.L. to have sexual intercourse. At some point, he

      noticed she was wearing an engagement ring and ordered her to take it off. He

      Court of Appeals of Indiana | Memorandum Decision 02A04-1511-CR-2069 | June 2, 2016   Page 2 of 7
      pocketed the ring before warning D.L. he would “come back every night to f***

      and rape her.” Id. Thomas and the other man eventually fled with D.L.’s

      belongings. As soon as the men were gone, D.L. retrieved her daughter and ran

      to her apartment. The police were called, and D.L. was transported to a

      medical facility for a sexual assault examination. A DNA profile recovered

      from D.L.’s underwear matched Thomas’s profile in the Combined DNA Index

      System (CODIS). Subsequent forensic testing confirmed the DNA profile

      recovered from D.L.’s underwear matched Thomas’s DNA.


[3]   The State charged Thomas with rape as a Class A felony, criminal deviate

      conduct as a Class A felony, and robbery as a Class B felony. Thomas pleaded

      guilty to rape and criminal deviate conduct. In exchange, the State dismissed

      the robbery charge, but other than requiring the sentence run consecutive to

      sentences imposed under several other cause numbers, the agreement left

      sentencing to the discretion of the trial court. The trial court found as

      mitigating factors Thomas’s decision to plead guilty and his remorse. It

      considered the following factors aggravating: (1) Thomas’s criminal history; (2)

      the nature and circumstances of the offenses; (3) the extraordinary impact on

      the victim; (4) that Thomas was out on bond when he committed the offenses;

      and (5) that he previously received services through the juvenile court which

      had proven unsuccessful. The trial court sentenced Thomas to forty years on

      each count, to be served consecutively, for an aggregate sentence of eighty

      years. The trial court ordered this sentence be served consecutive to the




      Court of Appeals of Indiana | Memorandum Decision 02A04-1511-CR-2069 | June 2, 2016   Page 3 of 7
      aggregate forty-year sentence he received on four separate armed robbery cases.

      This appeal followed.



                                   Discussion and Decision
                                        I. Standard of Review
[4]   Thomas contends his sentence is inappropriate in light of the nature of the

      offenses and his character.1 Indiana Appellate Rule 7(B) provides, “The 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.” The defendant

      bears the burden of persuading this court that his or her sentence is

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

      we regard a sentence as inappropriate turns on “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 v. State, 895 N.E.2d 1219, 1224

      (Ind. 2008). We “focus on the forest—the aggregate sentence—rather than the

      trees—consecutive or concurrent, number of counts, or length of the sentence

      on any individual count” in reviewing a defendant’s sentence. Id. at 1225. The

      question is not whether another sentence is more appropriate, but rather

      whether the sentence imposed in inappropriate. King v. State, 894 N.E.2d 265,




      1
       A person who pleads guilty is entitled to contest on direct appeal the merits of a trial court’s sentencing
      decision where, as here, the trial court exercised discretion. Collins v. State, 817 N.E.2d 230, 231 (Ind. 2004).

      Court of Appeals of Indiana | Memorandum Decision 02A04-1511-CR-2069 | June 2, 2016                   Page 4 of 7
      268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] 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).


                                 II. Inappropriate Sentence
[5]   As to the nature of the offense, the advisory sentence is the starting point the

      legislature has selected as an appropriate sentence for the crime the defendant

      committed. Childress, 848 N.E.2d at 1081. Thomas pleaded guilty to rape and

      criminal deviate conduct, both Class A felonies. A Class A felony carries a

      possible sentence of twenty to fifty years, with an advisory sentence of thirty

      years. Ind. Code § 35-50-2-4(a). The trial court sentenced Thomas to forty

      years on each count, to be served consecutively, for an aggregate sentence of

      eighty years.


[6]   We conclude the nature of the offenses supports the sentence imposed. Thomas

      forced D.L. to strip in a parking lot, ordered her to crawl towards him on her

      hands and knees, and then raped her at gun point in close proximity to her four-

      year-old daughter. As he departed, he took her engagement ring and said he

      planned to “come back every night to f*** and rape her.” Appellant’s App. at

      14. As the State observed, Thomas “attempted to be particularly humiliating

      and degrading to this victim.” Sentencing Hearing Transcript at 18. His cruelty




      Court of Appeals of Indiana | Memorandum Decision 02A04-1511-CR-2069 | June 2, 2016   Page 5 of 7
      and complete disregard for human dignity warrants the eighty-year sentence the

      trial court imposed.


[7]   As to his character, Thomas argues we should consider his criminal history in

      light of his age. We acknowledge Thomas’s five prior felony convictions arise

      from arrests occurring when he was only seventeen or eighteen years old, but

      we view this circumstance as reflecting poorly on his character. Thomas

      committed at least five robberies in the span of nine months. He has four prior

      convictions for armed robbery and a prior conviction for possession of a

      handgun with altered identifying marks. While he was out on bond on two of

      these cases, he robbed and raped D.L. at gunpoint, and he continued to commit

      robberies thereafter.


[8]   Although a defendant’s youth can, in some cases, constitute a significant

      mitigating factor warranting leniency, this is not always the case. Coleman v.

      State, 952 N.E.2d 377, 385 (Ind. Ct. App. 2011). As our supreme court

      explained, “Focusing on chronological age is a common shorthand for

      measuring culpability, but for people in their teens and early twenties it is

      frequently not the end of the inquiry. There are both relatively old offenders

      who seem clueless and relatively young ones who appear hardened and

      purposeful.” Ellis v. State, 736 N.E.2d 731, 736 (Ind. 2000). In this case, we are

      not persuaded Thomas’s sentence is inappropriate because of his age. His spree

      of armed robberies demonstrates an indifference to the law that cannot be




      Court of Appeals of Indiana | Memorandum Decision 02A04-1511-CR-2069 | June 2, 2016   Page 6 of 7
       attributed to youthful indiscretion. Both the nature of the offenses and

       Thomas’s character support the sentence imposed by the trial court.2



                                                 Conclusion
[9]    Thomas’s sentence is not inappropriate in light of the nature of the offenses and

       his character. We therefore affirm his sentence.


[10]   Affirmed.


       Najam, J., and Crone, J., concur.




       2
        To the extent Thomas contends his sentence violates Article 1, Section 18 of the Indiana Constitution, our
       supreme court has held particularized claims “are not reviewable under Article 1, Section 18 because Section
       18 applies to the penal code as a whole and does not protect fact-specific challenges.” Ratliff v. Cohn, 693
       N.E.2d 530, 542 (Ind. 1998) (emphasis in original).

       Court of Appeals of Indiana | Memorandum Decision 02A04-1511-CR-2069 | June 2, 2016              Page 7 of 7
