Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                 FILED
                                                               Dec 31 2012, 11:44 am
any court except for the purpose of
establishing the defense of res judicata,                             CLERK
                                                                    of the supreme court,
collateral estoppel, or the law of the case.                        court of appeals and
                                                                           tax court




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

LEANNA WEISSMANN                                   GREGORY F. ZOELLER
Lawrenceburg, Indiana                              Attorney General of Indiana

                                                   MICHAEL GENE WORDEN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

ALBERT JACKSON COUNCE,                             )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 15A05-1206-CR-296
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE DEARBORN SUPERIOR COURT
                          The Honorable Sally A. Blankenship, Judge
                               Cause No. 15D02-1109-FB-39


                                       December 31, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
        Albert Jackson Counce agreed to plead guilty to Class B felony robbery resulting in

injury1 in exchange for the State’s dismissal of a count of Class D felony theft2 and an

allegation that he was an habitual offender.3 The agreement left sentencing to the trial court’s

discretion, and the court sentenced Counce to twenty years, which is the maximum sentence

for a Class B felony.4 Counce appeals his sentence, arguing it is inappropriate in light of the

nature of his offense and his character. We affirm.

                           FACTS AND PROCEDURAL HISTORY

        On September 2, 2011, police were called to the Hollywood Casino to investigate a

robbery. T.M. had cashed out a little over a thousand dollars in winnings, placed the money

in his pants pocket, and stopped to use the restroom before leaving the casino. When T.M.

was at the urinal, a man pushed him into the urinal, causing an abrasion to T.M.’s forearm,

reached into T.M.’s right front pants pocket, grabbed the cash, and ran. T.M. gave chase, but

the man pushed him out of the way. When officers reviewed casino video, they identified

Counce as the robber.

        The State charged Counce with Class B felony robbery causing injury and Class D

felony theft. Later the State alleged Counce was an habitual offender. Counce pled guilty to

Class B felony robbery, in exchange for the State dismissing other charges. The court

entered the following findings:



1
  Ind. Code § 35-42-5-1.
2
  Ind. Code § 35-43-4-2(a).
3
  Ind. Code § 35-50-2-8.
4
  See Ind. Code § 35-50-2-5 (“A person who commits a Class B felony shall be imprisoned for a fixed term of
between six (6) and twenty (20) years, with the advisory sentence being ten (10) years.”).
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      1.     The Defendant is at risk to commit another crime due to his prior
             criminal history and has recently violated conditions of parole. The
             Defendant’s criminal history includes theft in 1989, armed robbery in
             the first degree in 1992, armed robbery in the second degree in 1992,
             burglary in 1993, and robbery in the first degree in 1997. The
             Defendant received a thirty year sentence and was on parole for the
             robbery in the first degree at the time this offense was committed.
             Further, the Defendant escaped from the Kansas City Community
             Release Center in 1995 and committed the robbery for which he was
             convicted in 1997 while he was an escapee. In addition, the Defendant
             had multiple violations while in custody in Missouri as outlined in the
             presentence investigation.
      2.     The victim in this matter is over 65 years of age.
      3.     The Defendant although voluntarily entering a plea of guilty did so in
             return for the State dismissing the Habitual Offender enhancement.
      4.     The Defendant has expressed remorse, has shown an ability to follow
             jail rules at the Dearborn County Law Enforcement Center and has
             expressed a desire for assistance with substance abuse. However, the
             Court finds these circumstances are far outweighed by the Defendant’s
             history contained herein and in the pre-sentence investigation.

      Wherefore the Court finds that the Defendant is a grave risk for community
      safety and is a risk to commit another criminal offense due to prior history of
      convictions for crimes of violence towards innocent individuals and history of
      escape and the fact that this crime was committed while on parole and the
      victim is over 65 years of age. The Court finds the Defendant is in need of
      correctional treatment best provided by a penal facility.

(App. at 92-93.) The court then sentenced Counce to twenty years of incarceration, the

maximum sentence possible for a Class B felony.

                           DISCUSSION AND DECISION

      Although Counce understands he “operates under a heavy burden,” (Br. at Appellant

at 3), he asks that we revise his sentence. We may revise a sentence authorized by statute

“where it is inappropriate in light of the nature of the offense and the character of the

offender.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (citing Ind. Appellate Rule

                                            3
7(B)). Nevertheless, “Appellate Rule 7(B) preserves for the trial court the central role in

sentencing.” Kucholick v. State, 977 N.E.2d 351, 351 (Ind. 2012). Our question is not

whether a different sentence would be more appropriate; rather the question is whether the

sentence assigned is inappropriate. Conley, 972 N.E.2d at 876. “The principal role of

appellate 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.” Kucholick, 977 N.E.2d at 351

(quoting Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). The defendant has the

burden to demonstrate to us that his sentence is inappropriate. Conley, 972 N.E.2d at 876.

       1.     Nature of the Offense

       When considering the nature of the offense, the advisory sentence is the starting point

to determine the appropriateness of a sentence. Anglemyer v. State, 868 N.E.2d 482, 494

(Ind. 2001), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). As we noted above, the court

pronounced a twenty-year sentence, which is the maximum sentence for a Class B felony.

Counce argues T.M.’s injuries were not sufficient to support a maximum sentence. Although

T.M.’s physical injuries were not serious, Counce has not provided authority suggesting that

is not the only criterion by which we may evaluate the nature of an offense.

       Counce attacked sixty-six year old T.M. in a restroom, as T.M. was using a urinal,

which is a time when a man would be more vulnerable and unable to defend himself. T.M.

reported he has been afraid since the robbery to enter a public restroom alone. Counce

pushed T.M. into the urinal, which caused the injury to T.M.’s arm, and then took thirteen

                                              4
hundred dollars from T.M.’s right front pocket. Counce knew T.M. had a large amount of

money in that pocket because, security videos revealed, Counce had been following T.M.

around the casino as he played, cashed out, and placed his money in his right front pocket.

When T.M. chased after Counce and yelled that he had been robbed, Counce ran back toward

T.M. and pushed him. While these facts do not compel imposition of a maximum sentence,

neither do they suggest a maximum sentence is inappropriate.

       2.     Character of the Offender.

       When considering the character of the offender, one relevant fact is criminal history.

Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance of criminal

history in assessing a defendant’s character varies based on the gravity, nature, and number

of prior offenses in relation to the current offense. Id.

       Counce has an extensive history of criminal activity similar in nature to the instant

offense, including prior separate convictions for theft, burglary, and three counts of robbery.

The robbery for which he was convicted in 1997 occurred after he escaped from the Kansas

City Community Release Center, and he committed the instant offense while on parole from

the thirty-year sentence imposed for that 1997 robbery.

       Although Counce expressed remorse and was made a trustee at his current

correctional facility, that does not mitigate his prior criminal history. Counce admits using

cocaine for nearly thirty years on a nearly daily basis, when not incarcerated. He has not

sought assistance for that drug problem, choosing instead to continue committing crimes to

support his drug habit. That decision further demonstrates his disdain for the law. Counce’s

                                              5
character does not suggest a shorter sentence is appropriate.

                                     CONCLUSION

       In light of his character and offense, we see nothing inappropriate about Counce’s

twenty-year sentence. Accordingly, we affirm.

       Affirmed.

ROBB, C.J., and PYLE, J., concur.




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