MEMORANDUM DECISION
                                                                   Nov 25 2015, 8:19 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as 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
Bruce W. Graham                                         Gregory F. Zoeller
Graham Law Firm P.C.                                    Attorney General of Indiana
Lafayette, Indiana
                                                        Paula J. Beller
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Tiffany Mounts,                                         November 25, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        79A04-1505-CR-392
        v.                                              Appeal from the Tippecanoe
                                                        Superior Court
State of Indiana,                                       The Honorable Steven P. Meyer
Appellee-Plaintiff                                      Trial Court Cause No.
                                                        79D02-1411-F3-4



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A04-1505-CR-392 | November 25, 2015   Page 1 of 9
                                           Case Summary
[1]   Tiffany Mounts (“Mounts”) pleaded guilty to Robbery While Armed with a

      Deadly Weapon1 and Criminal Confinement While Armed with a Deadly

      Weapon,2 both as Level 3 felonies. After accepting her guilty plea, the trial

      court sentenced Mounts to thirteen years imprisonment for each offense, with

      four years suspended to probation and the sentences run concurrent to one

      another. Mounts now appeals and presents a single issue for our review, which

      we restate as whether the trial court found an improper aggravating

      circumstance at sentencing.


[2]   We affirm.



                                   Facts and Procedural History
[3]   On November 5, 2014, Mounts, together with Jacob Lumbley (“Lumbley”) and

      Miguel Garcia (“Garcia”) robbed a Village Pantry convenience store in

      Lafayette. During the commission of the offense, Lumbley was armed with a

      shotgun, and Garcia was armed with a knife. Mounts’s role was to take

      money, alcohol, and food from the store during the robbery.


[4]   The trio entered the store, and Lumbley and Garcia ordered two store

      employees to freeze and get on the floor. The employees complied, and



      1
          Ind. Code § 35-42-5-1.
      2
          I.C. §§ 35-42-3-3(a) & (b)(2).


      Court of Appeals of Indiana | Memorandum Decision 79A04-1505-CR-392 | November 25, 2015   Page 2 of 9
      Mounts collected some food, money, cigarettes, and alcohol from the store.

      After the trio left the store, they divided up among themselves the items Mounts

      had taken.


[5]   Officers from the Lafayette Police Department responded to an armed robbery

      call from the convenience store. A K9 search led police to a vacant house

      where Garcia and Mounts were found, along with a shotgun and items similar

      to those reported as having been taken from the store. Mounts and Garcia were

      arrested; Lumbley was identified by Mounts and Garcia, and was arrested on

      November 6, 2014.


[6]   On November 12, 2014, the State charged Mounts with Conspiracy to Commit

      Robbery While Armed with a Deadly Weapon, Robbery While Armed with a

      Deadly Weapon, and two counts of Criminal Confinement While Armed with

      a Deadly Weapon, all as Level 3 felonies; and two counts of Theft, as Class A

      misdemeanors.


[7]   On April 1, 2015, Mounts and the State entered into a plea agreement, whereby

      Mounts agreed to plead guilty to one count each of Robbery While Armed with

      a Deadly Weapon and Criminal Confinement While Armed with a Deadly

      Weapon, as Level 3 felonies, and to cooperate with the State’s efforts to

      prosecute Garcia and Lumbley. In return, the State agreed to dismiss the other

      charges against Mounts. Sentencing was left to the discretion of the trial court.


[8]   On April 1, 2015, the trial court accepted the plea agreement and entered

      judgments of conviction against Mounts. A sentencing hearing was conducted

      Court of Appeals of Indiana | Memorandum Decision 79A04-1505-CR-392 | November 25, 2015   Page 3 of 9
       on May 1, 2015. At the conclusion of the sentencing hearing, the trial court

       sentenced Mounts to thirteen years imprisonment for each of her two

       convictions. The court suspended four of these years to probation; two years of

       the probationary period were to be served in the Tippecanoe County

       Community Corrections, and two years were to be served on supervised

       probation.


[9]    This appeal ensued.



                                 Discussion and Decision
[10]   On appeal, Mounts challenges the trial court’s sentencing decision, arguing that

       the trial court abused its discretion in finding aggravating circumstances. Our

       supreme court has held:


               [T]he imposition of sentence and the review of sentences on
               appeal should proceed as follows:


               1. The trial court must enter a statement including reasonably
               detailed reasons or circumstances for imposing a particular
               sentence.


               2. The reasons given, and the omission of reasons arguably
               supported by the record, are reviewable on appeal for abuse of
               discretion.


               3. The relative weight or value assignable to reasons properly
               found or those which should have been found is not subject to
               review for abuse.


       Court of Appeals of Indiana | Memorandum Decision 79A04-1505-CR-392 | November 25, 2015   Page 4 of 9
               4. Appellate review of the merits of a sentence may be sought on
               the grounds outlined in Appellate Rule 7(B).


       Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218 (Ind. 2007).


[11]   We review sentencing decisions for an abuse of discretion. Id. at 490. While a

       trial court may abuse its discretion by issuing a sentencing statement that

       “omits reasons that are clearly supported by the record and advanced for

       consideration,” a trial court can no longer “be said to have abused its discretion

       in failing to ‘properly weigh’ such factors.” Id. (quoting Jackson v. State, 729

       N.E.2d 147, 155 (Ind. 2000); Morgan v. State, 675 N.E.2d 1067, 1073-74 (Ind.

       1996)). Where the trial court has abused its discretion, we will not reverse a

       sentence if it is not inappropriate under Appellate Rule 7(B). Felder v. State, 870

       N.E.2d 554, 558 (Ind. Ct. App. 2007) (citing Windhorst v. State, 868 N.E.2d 504,

       507 (Ind. 2007)).


[12]   Here, Mounts argues that the trial court abused its discretion because it relied

       upon the material element of a crime as an aggravating circumstance. As our

       supreme court held in Anglemyer, “a trial judge may impose any sentence within

       the statutory range without regard to the existence of aggravating or mitigating

       factors.” 868 N.E.2d at 489. “[U]nder this scheme trial courts technically do

       not ‘enhance’ sentences upon the finding of aggravators; accordingly there is no

       impermissible double enhancement where the trial court relies on the material

       element of a crime as an aggravating circumstance.” Gomillia v. State, 13

       N.E.3d 846, 852 (Ind. 2014). But reliance upon a material element of a crime is
       Court of Appeals of Indiana | Memorandum Decision 79A04-1505-CR-392 | November 25, 2015   Page 5 of 9
       improper “in some circumstances.” Id. “Where a trial court’s reason for

       imposing a sentence greater than the advisory sentence includes material

       elements of the offense, absent something unique about the circumstances that

       would justify deviating from the advisory sentence, that reason is ‘improper as a

       matter of law.’” Id. at 852-53 (quoting Anglemyer, 868 N.E.2d at 491).


[13]   Here, Mounts contends that the trial court abused its discretion when it found

       as aggravating circumstances:


               [I]t’s already a serious offense because it’s a robbery while armed
               with a deadly weapon and the seriousness … is that it was [a]
               robbery of a local convenience store here and that placed some
               victims in fear by the use of the deadly weapon and so that’s the
               factor in which I was trying to get at when I, when I used the
               seriousness of the offense.


       Tr. at 62. Mounts argues that because her convictions for Robbery and

       Criminal Confinement, as Level 3 felonies, both required the use of a deadly

       weapon and placing someone in fear, the trial court improperly found as an

       aggravating circumstance Mounts’s having “placed some victims in fear by the

       use of a deadly weapon.”


[14]   The statutory elements for the offense of Criminal Confinement do not, by their

       terms, require that a victim have been placed in fear. The statute requires only

       use of a deadly weapon as a means of imposing the confinement. I.C. § 35-42-

       3-3. And while the Robbery statute includes placing someone in fear as an

       element, it does so in the alternative: “A person who knowingly or

       intentionally takes property from another person or from the presence of
       Court of Appeals of Indiana | Memorandum Decision 79A04-1505-CR-392 | November 25, 2015   Page 6 of 9
       another person: (1) by using or threatening the use of force on any person; or (2)

       by putting any person in fear.” I.C. § 35-42-5-1 (emphasis added). The facts

       used to establish Mounts’s guilt for purposes of her guilty plea indicated both

       that force was threatened and that the store employees were afraid. Moreover,

       the trial court noted the presence of two store employees, which also

       distinguishes the offenses Mounts committed from their statutory definitions.

       The trial court’s finding of fear as an aggravating circumstance was not an

       abuse of discretion.


[15]   Mounts also argues that, even if the aggravating circumstances were not

       improperly found, nevertheless her sentence is inappropriate in light of the

       nature of her offenses and her character. Mounts was convicted of two Level 3

       felonies. For each conviction, Mounts faced a sentencing range of between

       three and sixteen years imprisonment, with an advisory term of nine years. I.C.

       § 35-50-2-5(b). Mounts was sentenced to terms of thirteen years for each of her

       offenses, with the sentences run concurrent with one another, and a total of four

       years of the aggregate sentence suspended to probation.


[16]   With respect to the nature of the offenses, Mounts, in cooperation with two

       other individuals, participated in the robbery of a convenience store. Mounts

       did not personally threaten the employees of the store, but nevertheless acted in

       confederation with individuals wielding a knife and a shotgun. These actions

       placed multiple persons in fear. Mounts and her cohorts took a small amount

       of property from the store, consisting of food, alcohol, cigarettes, and some



       Court of Appeals of Indiana | Memorandum Decision 79A04-1505-CR-392 | November 25, 2015   Page 7 of 9
       money. Elevation of her sentence beyond the statutory advisory is, under these

       circumstances, not improper.


[17]   Mounts’s character speaks very poorly for her. Mounts was nineteen years of

       age when she committed the instant offenses, but her first encounter with the

       juvenile justice system occurred in 2001. From 2009 onward, Mounts was in

       near-constant contact with the juvenile justice system. In January 2010,

       Mounts was adjudicated a juvenile delinquent for conduct that, if committed by

       an adult, would have constituted Dealing in a Controlled Substance, as a Class

       B felony; Possession of a Controlled Substance, as a Class C felony; and

       Intimidation, as a Class A misdemeanor. While on house arrest as a result of

       this adjudication, Mounts ran away from her placement and used illegal drugs.

       Upon being placed in alternate housing, Mounts committed numerous

       disciplinary violations, including smoking, disrespectful behavior, running

       away from the home, tampering with the belongings of a fellow resident with

       special needs, and planning to feed human waste to an individual with special

       needs. Mounts was again adjudicated a juvenile delinquent in January 2013,

       for conduct that would constitute Escape, as a Class C felony, if committed by

       an adult. As an adult, in September 2013, Mounts was convicted of

       misdemeanor driving offenses.


[18]   Mounts was homeless at the time of the instant offenses, and had prior mental

       health and substance use problems. However, efforts to treat her mental health

       issues were frustrated because, by her own admission, she would sell the

       prescribed medications.

       Court of Appeals of Indiana | Memorandum Decision 79A04-1505-CR-392 | November 25, 2015   Page 8 of 9
[19]   Mounts’s conduct after her arrest for the present offenses also does not speak

       well of her character. Though she obtained a GED while awaiting trial, she

       also committed numerous violations of jail conduct rules, including tattooing,

       flooding jail areas, and destroying property. As a result, Mounts had been

       placed into a segregation unit in the jail. And while Mounts entered a guilty

       plea in this case and cooperated with law enforcement, she benefited from her

       plea by having four of the six criminal counts against her dismissed.


[20]   In light of the nature of Mounts’s offenses and her character, we do not

       consider as inappropriate an aggregate term of imprisonment of thirteen years.


[21]   Affirmed.


[22]   Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1505-CR-392 | November 25, 2015   Page 9 of 9
