MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Oct 30 2019, 9:37 am

court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Indiana Attorney General
Brooklyn, Indiana                                        Lauren A. Jacobsen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dereck E. Worthington,                                   October 30, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1357
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John T. Roach,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         84D01-1807-F1-2509



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1357 | October 30, 2019                  Page 1 of 7
                                       Statement of the Case
[1]   Dereck E. Worthington appeals his twenty-five-year sentence after he pleaded

      guilty to robbery, as a Level 2 felony. Worthington raises a single issue for our

      review, namely, whether his sentence is inappropriate in light of the nature of

      the offense and his character. We affirm.


                                 Facts and Procedural History
[2]   On July 8, 2018, Worthington and another man broke into the residence of

      Curtis Pike in Terre Haute. The two intruders were armed. They pointed their

      firearms at Pike, battered him, tied him to a chair, and cut the line to Pike’s

      oxygen tank. Worthington and the other man then stole $1,200, two debit

      cards, some jewelry, and Pike’s oxygen tank.


[3]   Terre Haute Police Department officers responded to a panic alarm at Pike’s

      residence. When they arrived, officers observed Pike “bleeding from the back

      of the head.” Appellant’s App. Vol. 2 at 16. He also “was having [a] hard time

      breathing” and “needed oxygen.” Id. Later, Pike identified Worthington’s

      confederate as Jon Marshall, Pike’s former stepson.


[4]   The State charged Worthington with attempted murder, as a Level 1 felony;

      robbery, as a Level 2 felony; criminal confinement, as a Level 3 felony; battery,

      as a Level 5 felony; and pointing a firearm, as a Level 6 felony. Worthington

      agreed to plead guilty to robbery, as a Level 2 felony. In exchange, the State

      agreed to dismiss the remaining counts. The plea agreement left sentencing



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1357 | October 30, 2019   Page 2 of 7
      open to the trial court. 1 The trial court accepted Worthington’s plea agreement

      and entered its judgment of conviction against him for robbery, as a Level 2

      felony.


[5]   Following a hearing, the court sentenced Worthington as follows:


              The following aggravating factors are established: the harm
              suffered by the victim is significant and greater than the elements
              necessary to prove [the] crime; defendant has a serious criminal
              history, including multiple violent felonies and multiple failures
              on probation; the victim was . . . seventy-three . . . years old; and
              the victim was physically infirm. The nature and circumstances
              of this planned, heinous attack on an elderly, infirm[] veteran[,]
              which left him bloodied, without oxygen[,] and terrified for hours
              as he tried to free himself[] also aggravate the sentence in this
              matter.


              The court gives some mitigating weight to defendant’s history of
              mental health issues, but no mitigating weight to his substance
              abuse issues as he has been given numerous opportunities to
              address the same[] but apparently has failed—his statements
              about his substance use are inconsistent. Defendant received a
              significant benefit from the dismissal of the other charges herein
              in exchange for his guilty plea. And, while he accepted
              responsibility by pleading guilty, his statement not only failed to
              demonstrate remorse or contrition for the victim, it was replete
              with attempts to minimize his own culpability.


              On balance, the court finds an aggravated sentence is necessary
              and appropriate. The defendant is sentenced to [the] Indiana



      1
        The agreement purported to cap the executed term of Worthington’s imprisonment at thirty years, which is
      the maximum term for imprisonment for a Level 2 felony. As such, that provision was of no consequence.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1357 | October 30, 2019               Page 3 of 7
              Department of Correction for an executed term of . . . twenty-five
              (25) years. When defendant has served fifteen (15) years, he may
              ask the court to consider a modification. The court recommends
              all appropriate substance abuse and mental health counseling.


      Id. at 90-91. This appeal ensued.


                                     Discussion and Decision
[6]   Worthington asserts that his sentence is inappropriate under Indiana Appellate

      Rule 7(B). Indiana Appellate Rule 7(B) provides that “[t]he 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.” This Court has often

      recognized that “[t]he advisory sentence is the starting point the legislature has

      selected as an appropriate sentence for the crime committed.” Sanders v. State,

      71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana Supreme Court has

      explained that “[t]he principal role of appellate review should be to attempt to

      leaven the outliers . . . but not achieve a perceived ‘correct’ result in each case.

      Defendant has the burden to persuade us that the sentence imposed by the trial

      court is inappropriate.” Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017)

      (citations omitted; omission in original).


[7]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

      sentence to the circumstances presented, and the trial court’s judgment “should

      receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

      2008). Whether we regard a sentence as inappropriate at the end of the day

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1357 | October 30, 2019   Page 4 of 7
      turns on “our sense of the culpability of the defendant, the severity of the crime,

      the damage done to others, and myriad other facts that come to light in a given

      case.” Id. at 1224. The question 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). 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).


[8]   Pursuant to Indiana Code Section 35-50-2-4.5 (2019), a person who commits a

      Level 2 felony “shall be imprisoned for a fixed term of between ten (10) and

      thirty (30) years, with the advisory sentence being seventeen and one-half (17

      1/2) years.” Again, Worthington’s plea agreement left sentencing under that

      statute open to the trial court, and the court imposed a twenty-five-year

      executed sentence.


[9]   Worthington asserts that his sentence is inappropriate in light of the nature of

      the offense because, while the offense was “egregious,” Marshall, not

      Worthington, was the one who “cut[] the victim’s oxygen line and t[ook] his

      tank.” Appellant’s Br. at 8. Worthington further asserts that his sentence is

      inappropriate in light of his character because he “accepted responsibility for his

      actions by pleading guilty”; he “suffers from two serious mental health

      disorders,” namely, “depression and anxiety”; he has “struggled with both

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1357 | October 30, 2019   Page 5 of 7
       alcohol and drug addiction”; and “[m]uch of his prior criminal history can be

       attributed to this struggle.” Id. at 8-9. Worthington also asserts that he

       “recognized the suffering he had caused” and “believed that he should receive

       an aggravated sentence.” Id. at 9.


[10]   But we cannot say that his twenty-five-year sentence is inappropriate. The

       nature of the offense was serious—Worthington participated in a violent

       robbery of an infirm, elderly veteran, whom Worthington struck viciously over

       the head and helped confine to a chair. While Worthington might not

       personally have cut his victim’s oxygen line or taken the oxygen tank, nothing

       about the record on appeal presents “compelling evidence portraying in a

       positive light the nature of the offense (such as accompanied by restraint,

       regard, and lack of brutality).” Stephenson, 29 N.E.3d at 122.


[11]   Further, the record amply reflects Worthington’s poor character. He has at

       least five prior felony convictions, four of which were for burglary, and he has

       had several probation violations. He received a substantial benefit from his plea

       agreement here when the State agreed to dismiss all other counts, which

       included a charge of attempted murder. And the trial court acknowledged and

       accounted for Worthington’s alleged mental health issues, substance abuse, and

       assertions of remorse when it tailored its sentence to him. We cannot say that

       Worthington’s twenty-five-year sentence, which includes an opportunity to seek

       a modification after fifteen years, is inappropriate in light of the nature of the

       offense or Worthington’s character. We affirm his sentence.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1357 | October 30, 2019   Page 6 of 7
[12]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1357 | October 30, 2019   Page 7 of 7
