MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any
                                                                         May 18 2020, 11:14 am
court except for the purpose of establishing
the defense of res judicata, collateral                                        CLERK
                                                                          Indiana Supreme Court
estoppel, or the law of the case.                                            Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Kristin A. Mulholland                                   Tyler G. Banks
Office of the Lake County Public                        Supervising Deputy Attorney
Defender – Appellate Division                           General
Crown Point, Indiana                                    Samantha M. Sumcad
                                                        Josiah Swinney
                                                        Deputy Attorneys General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Donnelle A. Douglas,                                    May 18, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2534
        v.                                              Appeal from the Lake Superior
                                                        Court
State of Indiana,                                       The Honorable Samuel L. Cappas,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        45G04-1706-F3-28



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2534 | May 18, 2020                      Page 1 of 15
[1]   Following a jury trial, Donnelle A. Douglas was convicted in Lake Superior

      Court of two counts of Level 3 felony armed robbery. He was sentenced to

      consecutive terms of sixteen years for each count, for a total of thirty-two years

      in the Department of Correction. Douglas now appeals, raising for our review

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

      and the nature of his offense. Concluding his sentence is not inappropriate, we

      affirm.


                                 Facts and Procedural History
[2]   On June 17, 2017, around 5:00 a.m., Douglas and two others robbed a 7-Eleven

      in Griffith, Indiana. Douglas wielded a handgun, pointed it at the store’s

      cashier, and directed she “hurry up and give him the money.” Tr. Vol. III, p.

      11. He also demanded she hand over three cartons of Newport cigarettes.

      Douglas fled the store, and the 7-Eleven cashier called 911.


[3]   Shortly after the 7-Eleven robbery, Douglas and the others arrived at a White

      Castle in Hammond. The employee working the cash register took Douglas’s

      order and looked down to make change from the twenty-dollar bill he gave her.

      When she looked up, she found a handgun pointed at her; Douglas demanded

      the money in the cash register. A second White Castle employee saw the

      robbery in progress, retreated to the restaurant’s office, and called 911. A third

      employee ran out of the back door and hid behind a dumpster; from there, she

      saw Douglas flee the restaurant and run down an adjacent alley near a Dunkin’

      Donuts.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2534 | May 18, 2020   Page 2 of 15
[4]   Hammond Police Officer Jon Sarlea (“Officer Sarlea”) was on patrol nearby

      when the White Castle robbery report was dispatched over police radios. He

      heard a description of the offender and saw a man, Douglas, who matched the

      description, walking in the alley behind the White Castle and Dunkin’ Donuts

      in question. Officer Sarlea exited his vehicle, yelled for Douglas to stop, and

      observed Douglas take off and discard his jacket. Douglas was arrested. A Hi-

      Point JCP .40 caliber handgun was found in his jacket on the ground. A “large

      wad of cash” was found in Douglas’s pants pocket, and later, at the jail, $308 in

      cash was retrieved from Douglas’s shoe. Tr. Vol. III, pp. 200, 203. The 7-

      Eleven cashier and the White Castle cashier both made positive identifications

      of Douglas as the person who had robbed their stores that morning. Law

      enforcement officials searched a vehicle parked near the White Castle and

      discovered cash register trays and three cartons of Newport cigarettes traceable

      to those stolen from the Griffith 7-Eleven. A search of Douglas’s phone

      revealed a picture of the White Castle’s hours of operation.


[5]   The State charged Douglas with two counts of Level 6 felony armed robbery

      that day, June 17. The charges were later amended to Level 3 felonies. Douglas

      was tried by jury on August 26–29, 2019, and found guilty on both counts. A

      sentencing hearing took place on September 26, 2019. Hammond Police

      Detective Steven Guernsey (“Detective Guernsey”) testified about his

      investigation into the 7-Eleven and White Castle robberies. He learned that the

      Dunkin’ Donuts near the White Castle had also been robbed at gunpoint;

      security footage from the store and Douglas’s jail phone calls indicated that


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2534 | May 18, 2020   Page 3 of 15
      Douglas was also responsible for that robbery, though Douglas was not charged

      with the Dunkin’ Donuts robbery due to witness noncooperation. Detective

      Guernsey also consulted with Illinois law enforcement agencies, who supplied

      images of a man resembling Douglas from two recent armed robberies near

      Skokie. Detective Guernsey testified that Douglas was under investigation by

      the Chicago Police Department for a string of thirteen robberies in that city.


[6]   Based on this testimony and on the information contained in Douglas’s pre-

      sentence investigation report, the trial court identified the following mitigating

      and aggravating circumstances in its sentencing order:


              Mitigating Circumstances:


              1. The Court finds that the defendant suffered an unfortunate
                 childhood;


              2. The defendant suffers from Bi-polar disorder and depression
                 and was committed to a mental institution approximately
                 nine (9) times;


              3. The defendant did apologize for his actions. However, the
                 Court finds the defendant’s apology to be perfunctory and
                 insincere; and,


              4. The defendant’s apology is diminished by the fact that the
                 defendant was convicted of two (2) robberies and allegedly
                 participated in seventeen (17) other robberies.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2534 | May 18, 2020   Page 4 of 15
        Aggravating Circumstances:


        1. The defendant has a history of criminal activity beginning as a
           juvenile at age ten (10) including twenty-eight (28) contacts
           with the criminal justice system resulting in eight (8) juvenile
           adjudications, two (2) felony convictions and three (3)
           misdemeanor convictions;


        2. The State admitted photographic exhibits depicting the
           defendant displaying gang symbols with his hands and posing
           with various firearms, for which he should not be in
           possession of [sic]. This is evidence that the defendant is an
           uncharged felon in possession of a firearm, which adversely
           reflects on the defendant’s character.


        3. The defendant has had many opportunities through the
           criminal justice system to engage in rehabilitation, which he
           has failed to do;


        4. The defendant has previously been sentenced to period of
           incarceration which failed to act as a deterrent to future
           criminal behavior;


        5. The State presented evidence that the defendant was a
           participant, as evidenced on video, in seventeen (17) other
           armed robberies, thirteen (13) in Chicago, one (1) in Skokie,
           Illinois, a Dunkin Doughnuts [sic] in Hammond, Indiana,
           one (1) in Oak Brook, Illinois and another in Burbank,
           Illinois. The un-convicted armed robberies reflect extremely
           adversely on the defendant’s character;


        6. The Court finds that coupled with the two (2) that the
           defendant was convicted of, the defendant’s pattern of
           participating in the number of robberies is egregious;

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2534 | May 18, 2020   Page 5 of 15
        7. The Court finds that the defendant lead a drug-addictive
           lifestyle as evidenced in the presentence investigation report;


        8. The Court finds the defendant’s IRAS score to be very high;


        9. The Court finds that the defendant engaged in prolific crime
           sprees which negates any remorse that the defendant
           expressed at sentencing;


        10. The Court finds that a mitigated sentence would depreciate
            the seriousness of this crime;


        11. The Court finds that the harm, loss, or injury suffered by the
            victim is significant and greater than the elements necessary to
            prove the commission of the offense in that as of this date,
            one of the victims still suffers from emotional trauma in the
            form of nightmares, sleepless nights and was off of work for
            two (2) months because of her apprehension to appear at
            work;


        12. The Court finds that one of the guns depicted in photographs
            from the defendant’s phone has a “silencer” on it, which the
            Court doubts the defendant was legally able to possess;


        13. The Court finds that when the defendant was arrested, drugs
            were retrieved from his person and the vehicle that he was in;


        14. The Court finds that as far as armed robberies are concerned,
            this is the worst of the worst;


        15. The Court finds the defendant to be twenty-seven (27) years of
            age and his life of crime started at the age of ten (10). On
            average, the defendant had contact with the criminal justice
            system every of his life [sic] since the age of ten (10); and,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2534 | May 18, 2020   Page 6 of 15
              16. The Court finds that the defendant is in need of correctional
                  or rehabilitative treatment that can only be provided by a
                  penal facility.


              The Court finds that the aggravating circumstances substantially
              outweigh the mitigating circumstances.


      Appellant’s App. pp. 183–85.


[7]   The trial court sentenced Douglas to sixteen years on both counts of Level 3

      felony armed robbery and ordered that the terms be served consecutively, for an

      aggregate sentence of thirty-two years. This appeal followed.


                                     Discussion and Decision
[8]   Douglas contends that the thirty-two-year sentence imposed for his convictions

      for two counts of Level 3 felony armed robbery is inappropriate in light of his

      mental illness and his addiction to drugs and alcohol. He argues that his

      sentence be reduced to ten years and that he be considered for purposeful

      incarceration. Article 7, Sections 4 and 6, of the Indiana Constitution authorize

      independent appellate review and revision of a sentence—including where a

      trial court has acted within its lawful discretion in imposing that sentence—

      through Appellate Rule 7(B). The rule permits us to revise a sentence “if, after

      due consideration of the trial court’s decision, we find the sentence is

      inappropriate in light of the nature of the offense and the character of the

      offender.” Gibson v. State, 51 N.E.3d 204, 205 (Ind. 2016). The purpose of this

      express authority to review and revise sentences is to ensure that justice is done


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2534 | May 18, 2020   Page 7 of 15
      in Indiana courts and to provide unity and coherence in judicial application of

      the laws. Pruitt v. State, 834 N.E.2d 90, 121 (Ind. 2005).


                                         Standard of Review
[9]   On appeal, the defendant bears the burden of persuading us that his sentence is

      inappropriate. Gibson, 51 N.E.3d at 215. Sentence review under Appellate Rule

      7(B) is “very deferential” to the trial court. Conley v. State, 972 N.E.2d 864, 876

      (Ind. 2012). Because a trial court’s judgment receives considerable deference,

      our principal role is to “leaven the outliers,” and not to achieve a perceived

      correct result. Hamilton v. State, 955 N.E.2d 723, 726 (Ind. 2011) (citing Cardwell

      v. State, 895 N.E.2d 1219, 1222 (Ind. 2008)). Accordingly, our deference to the

      trial court’s judgment prevails “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). Whether a sentence is inappropriate

      ultimately depends upon “the culpability of the defendant, the severity of the

      crime, the damage done to others, and a myriad of other factors that come to

      light in a given case.” Dilts v. State, 80 N.E.3d 182, 188-89 (Ind. Ct. App. 2017),

      trans. denied. We may look to any factors appearing in the record for such a

      determination. Stokes v. State, 947 N.E.2d 1033, 1038 (Ind. Ct. App. 2011),

      trans. denied.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2534 | May 18, 2020   Page 8 of 15
                                                         I. Waiver

[10]   First, we address the State’s contention that Douglas waived his challenge to

       the inappropriateness of his sentence because he did not proffer a specific

       argument that his sentence is inappropriate in light of the nature of his offenses.

       A Rule 7(B) argument may be waived where a defendant “invokes the rule but

       sets forth no reasons supporting that claim.” Connor v. State, 58 N.E.3d 215, fn.3

       (Ind. Ct. App. 2016); see, e.g., Boyle v. State, 868 N.E.2d 435, 437 (Ind. 2007).


[11]   A defendant’s choice to focus his argument on just one of the two prongs, while

       perhaps inadvisable, does not result in waiver of our appellate authority to

       review and revise his sentence. Shoun v. State, 67 N.E.3d 635 (Ind. 2017)

       (declining to find Rule 7(B) argument waived where defendant did not dispute

       the “severe nature of the crime and focus[ed] his argument on his character”);

       see also Connor, 58 N.E.3d at 220 (defendant’s acknowledgment of the

       egregiousness of his offense did not constitute waiver, but “his burden of

       persuading us that his sentence is inappropriate . . . may be heightened by the

       need to prove the nature of his character should overcome the admittedly

       serious nature of his offense”).1




       1
         In two recent memorandum decisions, however, our court has determined the 7(B) argument is waived
       where defendants failed to address both prongs of the rule. See contra Waller v. State, 18A-CR-1401, 2018 WL.
       5668599 at *1 (Ind. Ct. App. Nov. 1, 2018) (argument “not sufficient to invoke this court’s authority to revise
       a sentence under Indiana Appellate Rule 7(B)” where defendant argued his sentence was inappropriate solely
       in light of his character); accord Kruger v. State, 18A-CR-1144, 2019 WL 1071580 at *5 (Ind. Ct. App. March
       7, 2019) (same result, acknowledging in footnote seven the waiver disagreement), trans, denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2534 | May 18, 2020                      Page 9 of 15
[12]   Here, Douglas made a perfunctory argument regarding the nature of his

       offenses and devoted the bulk of his brief to an explanation of why his character

       as an offender warrants revision of his sentence. Accordingly, Douglas has not

       waived his challenge to the inappropriateness of his sentence. However, his

       burden remains to persuade us that his character as an offender overcomes the

       egregious nature of his offenses.


[13]   We observe, too, that Appellate Rule 7(B) requires us to consider both prongs

       in determining whether a sentence is inappropriate. See Payton v. State, 818

       N.E.2d 493, 498 (Ind. Ct. App. 2004) (“[I]t is clear that [the defendant’s]

       character falls within the category of the worst offenders. However, we are also

       obliged to consider the nature of the offenses.” (emphasis added)), trans. denied.

       “Our courts have frequently treated the two prongs as separate inquiries to

       ultimately be balanced in determining whether a sentence is inappropriate.”

       Connor, 58 N.E.3d at 218. Nevertheless, in balancing the two prongs, “we often

       exercise our review and revise power where only one of the prongs weighs

       heavily in favor of either affirming or revising the sentence.” Id. at 219; see, e.g.,

       Eckelbarger v. State, 51 N.E.3d 169, 170–171 (Ind. 2016) (revising defendant’s

       sentence from thirty-two years to sixteen years upon finding the nature of his

       offenses did not warrant consecutive sentences, without also discussing whether

       his character warranted revision); Cardwell, 895 N.E.2d at 1226 (revising

       defendant’s sentence on the basis of the nature of the offenses alone because the

       record contained inconclusive information on the nature of the defendant’s

       character).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2534 | May 18, 2020   Page 10 of 15
[14]   It is with this understanding of our authority under Appellate Rule 7(B) that we

       review Douglas’s character as an offender and the nature of his offenses,

       compelling evidence portraying in a positive light either or both of which is

       necessary to overcome our deference to the trial court’s judgment.


                                        II. Character of the Offender

[15]   Douglas argues that his sentence is inappropriate in light of his character as an

       offender, pointing to his significant mental illness and long-term drug and

       alcohol abuse. In assessing a defendant’s character, we engage in a broad

       consideration of his qualities. Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App.

       2014). “The character of the offender is found in what we learn of the offender’s

       life and conduct.” Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011).


[16]   At the time of his sentencing, Douglas was twenty-seven years old. Appellant’s

       App. p. 184. At age seven, he was diagnosed with bipolar disorder, Attention

       Deficit Hyperactivity Disorder, and anxiety. Appellant’s Conf. App. p. 157. His

       pre-sentence investigation report indicates that he began abusing drugs as a

       child and endured an adolescence without many of the familial and educational

       supports to which children are entitled. Id. at 156–58. Douglas has been treated

       in a mental institution nine times, and he has attempted suicide three times,

       most recently while incarcerated in the Lake County Jail. Id. at 157. As a result,

       proceedings in this cause were continued upon the filing of a motion for

       insufficient comprehension and the court’s order that Douglas undergo a

       competency evaluation. Appellant’s App. pp. 80–82. Two of three court-

       appointed psychiatrists found Douglas to not have sufficient comprehension to
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2534 | May 18, 2020   Page 11 of 15
       assist counsel in his defense, and, in October 2018, the trial court ordered him

       committed to psychiatric confinement with the Indiana Family & Social

       Services Administration. Id. at 85. As of a status hearing on February 26, 2019,

       Douglas had not yet been transported from Lake County Jail to the Department

       of Mental Health. Id. at 86. Then, on April 9, 2019, the court’s prior transport

       order was stayed upon defense counsel’s motion, and Douglas’s case proceeded

       to trial in August 2019. Id. at 89–91.


[17]   Also relevant to our review of an offender’s character is his criminal history, the

       significance of which varies based on the gravity, nature, and number of prior

       offenses in relation to the current offenses. Rutherford v. State, 866 N.E.2d 867,

       874 (Ind. Ct. App. 2007). Douglas has an extensive history of juvenile

       delinquency and adult criminal convictions. Appellant’s Conf. App. pp. 150–

       55. These include seven juvenile adjudications; four prior misdemeanor

       convictions; and two prior felony convictions: Escape/Violation of Electronic

       Monitoring, for which Douglas was sentenced to thirty months, and Possession

       of a Weapon in a Penal Institution, for which he was sentenced to four years.

       Id. at 155. Douglas also admits to being a “past member” of the Black Stones

       Gang in Chicago. Id. at 157. As the trial court observed, “[a]ny previous

       incarceration has failed to deter you from a life of crime. You’ve led a drug-

       addicted lifestyle that possibly fuels your activity.” Tr. Vol. IV, p. 211. We

       agree, though this is not the end of the inquiry.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2534 | May 18, 2020   Page 12 of 15
                                           III. Nature of the Offenses

[18]   In considering the nature of an offense, “the advisory sentence is the starting

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

       committed.” Abbott v. State, 961 N.E.2d 1016, 1019 (Ind. 2012). Douglas was

       sentenced to sixteen years for each Level 3 felony armed robbery offense, which

       is the maximum sentence deemed appropriate by the legislature; the advisory

       sentence is nine years, and the minimum sentence is three years.2 See I.C. § 35-

       50-2-5(b). Generally, a trial court should “reserve maximum sentences for

       classes of offenses that constitute the worst of the worst.” Hamilton, 955 N.E.2d

       at 727.


[19]   Where a sentence exceeds the advisory sentence, we consider whether there is

       anything more egregious about the offense as committed by the defendant that

       “makes it different from the ‘typical’ offense accounted for by the legislature

       when it set the advisory sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind.

       Ct. App. 2011). The nature of the offense is “found in the details and

       circumstances of the commission of the offenses and the defendant’s

       participation.” Croy, 953 N.E.2d at 664.


[20]   Douglas committed back-to-back robberies of two businesses during which he

       held their cashiers at gunpoint. This terrifying experience prevented one cashier



       2
        Because armed robbery is a crime of violence (see I.C.§ 35-50-1-2(a)(13)), Douglas’s sentences were properly
       ordered to be served consecutively, for a total of thirty-two years. We note that the twenty-year total
       established by Indiana Code § 35-50-1-2(d)(4) for consecutive terms of imprisonment is inapplicable here,
       because Douglas’s convictions arose from separate episodes of criminal conduct.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2534 | May 18, 2020                    Page 13 of 15
       from returning to work for two months. We cannot say that Douglas’s

       commission of these offenses was accompanied by particular regard for his

       victims. Nor were the offenses accompanied by restraint: the trial court heard

       evidence during sentencing that Douglas was suspected of committing a spate

       of armed robberies spanning the Indiana-Illinois state line. At the time of his

       sentencing, Douglas had not been charged with those crimes; nevertheless, the

       trial court’s sentencing order noted that Douglas’s “pattern of participating in

       the number of robberies is egregious.” Appellant’s App. p. 184. The trial court

       found that Douglas “engaged in prolific crime sprees which negates any

       remorse that the defendant expressed at sentencing,” and that “as far as armed

       robberies are concerned, this is the worst of the worst.” Id. Evidence of

       Douglas’s participation in contemporaneous armed robberies not only “reflects

       extremely adversely on the defendant’s character,” as the trial court rightly

       observed, it also differentiates the nature of Douglas’s offenses from the typical

       offense as accounted for by the legislature when it devised an appropriate

       sentencing range for Level 3 felonies. Id.


[21]   Based on our review of the circumstances of Douglas’s offenses and his

       character as an offender, we find that Douglas has not carried his burden of

       showing that his sentence is inappropriate under Appellate Rule 7(B). This

       conclusion comports with our tendency to “reserve our 7(B) authority for

       ‘exceptional’ cases.” Taylor v. State, 86 N.E.3d 157, 165 (Ind. 2017). We are

       mindful, too, that our appellate review should “focus on the forest—the

       aggregate sentence—rather than the trees—consecutive or concurrent, number


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2534 | May 18, 2020   Page 14 of 15
       of counts, or length of the sentence on any individual count.” Cardwell, 895

       N.E.2d at 1225. The deference we owe to trial courts in sentencing persuades us

       that it was not inappropriate for the trial court to impose an aggregate sentence

       of thirty-two years.


                                                 Conclusion
[22]   For all of these reasons, we conclude that Douglas’s thirty-two-year sentence is

       not inappropriate in light of his character and the nature of his offenses, and we

       affirm the trial court’s sentence.


[23]   Affirmed.


       Riley, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2534 | May 18, 2020   Page 15 of 15
