      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                          FILED
      this Memorandum Decision shall not be
                                                                                 Feb 11 2019, 10:37 am
      regarded as precedent or cited before any
      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
      Kristin A. Mulholland                                    Curtis T. Hill, Jr.
      Office of the Lake County Public                         Attorney General of Indiana
      Defender – Appellate Division                            J.T. Whitehead
      Crown Point, Indiana                                     Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Gary L. Allgood,                                         February 11, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-1916
              v.                                               Appeal from the Lake Superior
                                                               Court
      State of Indiana,                                        The Honorable Samuel L. Cappas,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               45G04-1712-F2-16



      Mathias, Judge.


[1]   Gary Allgood (“Allgood”) was convicted in Lake Superior Court of Level 5

      felony robbery and Level 6 felony intimidation and ordered to serve an


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1916 | February 11, 2019                   Page 1 of 11
      aggregate six-year sentence, with five years and three months to be served in the

      Department of Correction and nine months to be served in community

      corrections. Allgood appeals and raises two issues, which we restate as:


        I. Whether Allgood knowingly, voluntarily, and intelligently waived his right
           to counsel; and,

       II. Whether his aggregate six-year sentence is inappropriate in light of the
           nature of the offense and the character of the offender.

      We affirm.


                                 Facts and Procedural History
[2]   On December 4, 2017, at approximately 4:30 p.m., Miriam Eckenrode

      (“Miriam”) was grocery shopping at Aldi in Hammond, Indiana. Miriam

      noticed Allgood in the store parking lot as she walked into Aldi. Allgood was

      walking back and forth while speaking on his cell phone.

[3]   Miriam completed her grocery shopping and returned to her vehicle, placing

      her groceries on the front passenger seat. As Miriam began to sit down in the

      driver’s seat of her vehicle, Allgood opened the front passenger side door and

      leaned into the car. Allgood had his hand in his pocket and pointed at Miriam.

      He threatened Miriam and stated, “don’t make me blow your brains out here in

      this parking lot.” Tr. Vol. II, p. 104. Miriam believed that Allgood had a

      weapon in his pocket.

[4]   Miriam tried to give Allgood her purse, but he refused to take it. Instead,

      Allgood demanded that Miriam drive him to an unknown location. Miriam

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1916 | February 11, 2019   Page 2 of 11
      told Allgood to take her car. Allgood threatened her again and then told her to

      shut her car door. Id. at 108.


[5]   Miriam saw a woman nearby, later identified as Meiko Cook (“Cook”), loading

      groceries into her car. Miriam got out of her vehicle and ran toward Cook

      yelling “call the police.” Id. at 110. Allgood followed Miriam calling her

      “Alice.” Id. at 163. Allgood told Cook that Miriam was under the influence of

      drugs and that she owed him money. Id. at 164. Miriam gave Allgood a few

      dollars, told Cook to run, and then she walked into Aldi. Allgood apologized to

      Cook and told her that “Alice” had taken Xanax and he just wanted his money.

      Id. at 165. Allgood then walked away from Aldi toward Walmart.


[6]   Cook went back inside Aldi to return her cart. She saw Miriam, asked if she

      was okay, and learned that the police had been called. Both Miriam and Cook

      gave a description of Allgood to the police. A police officer found a person

      matching Allgood’s description nearby. Miriam and Cook were taken to

      Allgood’s location, and they both identified Allgood as the man in the parking

      lot who demanded money from Miriam.

[7]   On December 6, 2017, the State charged Allgood with Level 2 felony attempted

      kidnapping, Level 5 felony robbery, Level 6 felony intimidation, and Class A

      misdemeanor theft. On June 5, 2018, during a pre-trial conference, Allgood

      informed the trial court that he wanted to proceed pro se. The trial court

      advised Allgood of the disadvantages of self-representation and informed him




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1916 | February 11, 2019   Page 3 of 11
      that he would be held to the same standard as an attorney. The court urged

      Allgood to speak with his attorney and think about whether to proceed pro se.

[8]   Allgood then filed a written motion to proceed pro se, and the trial court held a

      hearing on his motion on June 7, 2018. The court advised Allgood that


              if you’re going to represent yourself at that trial, I have to tell you
              that you are held to the same standards as that of an attorney. So
              you have to know trial procedure. You have to know . . . the
              difference between direct examination and cross examination. I
              mean, leading and non-leading questions, the appropriate
              objections. You have to follow the Rules of Evidence. I am not
              required to give you any leeway, because you don’t have the
              same legal education as the prosecuting attorney will have. [The
              prosecutor] has been here for quite some[]time, and he is very
              thorough. So in your presentation of this case, I don’t know if
              you’re going to know how to object, when to object. If he’s
              introducing evidence, if you know the proper foundation. If you
              know how to question witnesses and engage in proper cross
              examination and impeachment. . . . If you’ve got great evidence
              and you don’t know how to get it out, that’s too bad for you. . . .
              I can’t imagine that you not having gone to law school or studied
              or been trained in trial advocacy could even come close to
              matching an attorney with the lowest level of skill.


      Tr. Vol. II, pp. 26–28. After Allgood continued to insist on proceeding pro se,

      the trial court granted his motion. The court also appointed Allgood’s former

      attorney as standby counsel.

[9]   A jury trial was held on June 11–12, 2018. The jury acquitted Allgood of

      attempted kidnapping, but he was found guilty of the robbery, intimidation, and

      theft charges.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1916 | February 11, 2019   Page 4 of 11
[10]   At the July 10, 2018 sentencing hearing, the trial court merged the theft and

       robbery charges. The court then found the following aggravating circumstances:

       1) the victim’s harm, injury, and loss were greater than the elements necessary

       to prove the commission of the offense, 2) Allgood’s criminal history, including

       eight prior felony convictions, and 3) that Allgood is in need of correctional

       rehabilitative treatment that can only be provided by a penal facility. Tr. Vol.

       III, p. 101. The trial court found that Allgood’s attempt to avail himself of two

       jail programs was the only mitigating circumstance. Allgood was ordered to

       serve concurrent terms of six years, with nine months to be served in work

       release, for the robbery conviction and two and one-half years for the

       intimidation conviction. Allgood now appeals.


                                           Waiver of Counsel

[11]   Allgood claims that the trial court “failed to perform a sufficient analysis of

       whether the waiver of his constitutional right to counsel was made knowingly,

       voluntarily, and intelligently.” Appellant’s Br. at 7. A defendant in a criminal

       case has a constitutional right under the Sixth Amendment to proceed without

       the assistance of counsel. Faretta v. California, 422 U.S. 806, 821 (1975) (holding

       that “[t]he Sixth Amendment . . . implies a right of self-representation”). The

       trial court is in the best position to assess whether a defendant has the ability

       and willingness to proceed pro se. See Edwards v. State, 902 N.E.2d 821, 824

       (Ind. 2009); Poynter v. State, 749 N.E.2d 1122, 1128 (Ind. 2001).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1916 | February 11, 2019   Page 5 of 11
[12]   The trial court “must determine that the defendant’s waiver of counsel is

       knowing, voluntary, and intelligent.” Wilson v. State, 94 N.E.3d 312, 320 (Ind.

       Ct. App. 2018). There are no “talking points” a trial court is required to use, but

       it must advise a defendant of the “dangers and disadvantages of proceeding

       without counsel” and “come to a ‘considered determination’ that the defendant

       is making a knowing, voluntary, and intelligent waiver of his right to counsel.”

       Id. at 320–21 (citing Poynter, 749 N.E.2d at 1126).


[13]   To determine whether a waiver of trial counsel was made voluntarily and

       intelligently, our court must consider (1) the extent of the court’s inquiry into

       the defendant’s decision, (2) other evidence of record that establishes whether

       the defendant understood the dangers and disadvantages of self-representation,

       (3) the background and experience of the defendant, and (4) the context of the

       defendant’s decision to proceed pro se. Hopper v. State, 957 N.E.2d 613, 618

       (Ind. 2011). We review the trial court’s conclusion that a defendant knowingly

       and voluntarily waived the right to counsel de novo. Hart v. State, 79 N.E.3d

       936, 940 (Ind. Ct. App. 2017).

[14]   Here, the trial court held two hearings concerning Allgood’s request to proceed

       pro se. At both hearings, Allgood was advised of the dangers of self-

       representation, and the court repeatedly reminded Allgood that attorneys have

       specialized training that Allgood lacks. For example, the court stated:

               Now, if you’re going to represent yourself at that trial, I have to
               tell you that you are held to the same standards as that of an
               attorney. So you have to know trial procedure. You have to

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1916 | February 11, 2019   Page 6 of 11
               know . . . the difference between direct examination and cross
               examination . . . , leading and non-leading questions, the
               appropriate objections. You have to follow the Rules of
               Evidence. I am not required to give you any leeway, because you
               don’t have the same legal education as the prosecuting attorney
               will have. Mr. Bruno has been here for quite some[]time, and he
               is very thorough. So in your presentation of this case, I don’t
               know if you’re going to know how to object, when to object. If
               he’s introducing evidence, if you know the proper foundation. If
               you know how to question witnesses and engage in proper cross
               examination and impeachment.


       Tr. Vol. II, pp. 26–27.

[15]   The trial court advised Allgood if he did not understand how to impeach a

       witness or establish a foundation for admitting exhibits into evidence, he should

       not represent himself at trial. Id. at 13. And the court repeatedly instructed

       Allgood that he would be held to the same standard as an attorney.


[16]   At the first hearing, the trial court advised Allgood to think about his request to

       proceed pro se and to seek advice from his appointed counsel. The trial court

       questioned Allgood about his mental health and determined that he does not

       suffer from any mental disease or defect. Id. at 14. Allgood informed the court

       that he graduated from high school and attended three years of college. And

       Allgood has significant experience with the criminal justice system. At the

       second hearing, the trial court granted Allgood’s motion to proceed pro se after

       he continued to insist that he wanted to represent himself.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1916 | February 11, 2019   Page 7 of 11
[17]   Allgood complains that he should not have been permitted to proceed pro se

       because he demonstrated that he did not understand the nature of the attempted

       kidnapping charge (of which he was acquitted), how to impeach a witness, or

       lay a foundation to admit evidence. But the trial court repeatedly told Allgood

       that if he did not understand how to conduct himself as a trained attorney, he

       should not represent himself. Allgood ignored the trial court’s warning and

       continued his request to proceed pro se. For all of these reasons, we conclude

       that Allgood’s waiver of counsel was knowing, intelligent, and voluntary.


                                       Inappropriate Sentence

[18]   Allgood also claims that his aggregate six-year sentence is inappropriate in light

       of the nature of the offense and the character of the offender. 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.” In conducting our review, “[w]e do not look to determine if

       the sentence was appropriate; instead we look to make sure the sentence was

       not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012).

       “[S]entencing is principally a discretionary function in which the trial court’s

       judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d

       1219, 1222 (Ind. 2008).

[19]   Thus, although we have the power to review and revise sentences, 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
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1916 | February 11, 2019   Page 8 of 11
       improvement of the sentencing statutes, but not to achieve a perceived ‘correct’

       result in each case.” Id. at 1225. It is Allgood’s burden on appeal to establish

       that his sentence is inappropriate. Grimes v. State, 84 N.E.3d 635, 645 (Ind. Ct.

       App. 2017), trans. denied.


[20]   When considering the nature of the offense, we observe that “the advisory

       sentence is the starting point the Legislature selected as appropriate for the

       crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). Allgood

       received the maximum six-year sentence for his Level 5 felony robbery

       conviction. See I.C. § 35-50-2-6(b). His concurrent term of two and one-half

       years for Level 6 felony intimidation is also the maximum allowable sentence.

       See I.C. § 35-50-2-7(b). Citing Hamilton v. State, 955 N.E.2d 723, 727 (Ind.

       2011), Allgood argues that the maximum sentence “should be reserved for the

       worst of the worst,” and “this case does not fit that description.” Appellant’s Br.

       at 13.


[21]   Concerning the nature of the offense, Allgood argues that he did not have a

       weapon, no one suffered physical injury, and Miriam’s financial loss was not

       significant. We acknowledge those facts but also observe that Miriam has

       suffered significant and lasting emotional trauma as a result of Allgood’s

       crimes. She suffers from panic attacks, sleepless nights, and fear of leaving her

       home after dark. Tr. Vol. III, pp. 81–82. Miriam also stated that she has

       suffered financially because she is “unable to work in public this summer due to

       the anxiety[.]” Id. at 82. In addition, the stress caused by Allgood’s offenses has



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1916 | February 11, 2019   Page 9 of 11
       aggravated her preexisting neurological condition, and she has incurred

       additional medical expenses not covered by her insurance. Id.


[22]   Allgood also argues that his “character does not constitute the worst” because

       he “comported himself well during trial” and he has secured two jobs so that he

       can be a productive member of society. Appellant’s Br. at 13. But Allgood’s

       criminal history is significant and reflects poorly on his character.

[23]   Fifty-one-year-old Allgood has spent much of his adult life on probation or in

       prison. In 1987, he was convicted of felony passing forged instruments in Texas

       and sentenced to ten years. In 1989, Allgood was convicted of two felony

       robberies in Illinois and sentenced to serve three years in the Illinois

       Department of Corrections. In 1992, he was convicted of felony aggravated

       criminal sexual assault, felony armed violence, and felony home invasion in

       Illinois and ordered to serve twenty years in the Illinois Department of

       Corrections. In 1993, Allgood was convicted in Illinois of felony obtaining

       substance by fraud. In 2009 and 2010, he was convicted of misdemeanor

       domestic assault and four misdemeanor domestic batteries for offenses that

       occurred in 2007 and 2009. And in 2010, Allgood was convicted of felony

       burglary and sentenced to twelve years in the Illinois Department of

       Corrections. Allgood’s criminal history establishes his poor character and

       inability to lead a law-abiding life.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1916 | February 11, 2019   Page 10 of 11
[24]   For all of these reasons, we conclude that Allgood’s six-year aggregate sentence

       is not inappropriate in light of the nature of the offense and the character of the

       offender.


                                                 Conclusion
[25]   Allgood knowingly, intelligently, and voluntarily waived his right to counsel.

       And his six-year aggregate sentence is not inappropriate.

[26]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1916 | February 11, 2019   Page 11 of 11
