MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                               Aug 10 2018, 6:00 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Marielena Duerring                                       Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles A. Pickering,                                    August 10, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1711-CR-2785
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Elizabeth C.
Appellee-Plaintiff.                                      Hurley, Judge
                                                         Trial Court Cause No.
                                                         71D08-1704-F3-24



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2785 | August 10, 2018      Page 1 of 6
                                       Statement of the Case
[1]   Charles Pickering appeals his sentence following his convictions for rape, as a

      Level 3 felony, and battery, as a Level 6 felony. He presents a single issue for

      our review, namely, whether his maximum sentence is inappropriate in light of

      the nature of the offenses and his character. We affirm.


                                 Facts and Procedural History
[2]   On January 11, 2017, Pickering met S.B., a sixty-three-year-old homeless

      woman, at a shelter in South Bend, and he invited her to come with him to an

      apartment where he was staying. Pickering and S.B. drank some beer and

      vodka, and then Pickering started to undress. S.B. told Pickering that she did

      not want to have sex with him, but he grabbed her hair and forced her to

      perform fellatio on him. Pickering hit S.B. hard in the face multiple times. S.B.

      tried to push him away, and he eventually backed off. Approximately fifteen

      minutes later, Pickering called S.B. a “b****” and forcibly removed her clothes.

      Tr. Vol. II at 112. S.B. repeatedly told him “No,” but he attempted to have

      anal sex with her. Id. When that was unsuccessful, Pickering forcibly

      penetrated S.B.’s vagina with his penis. All the while, Pickering was pulling

      S.B.’s hair and hitting her, and S.B. was telling him to stop.


[3]   At some point, S.B. was able to dial 9-1-1 on her cell phone, but Pickering

      grabbed her phone and threw it out of a window. S.B. finally made her way out

      of the apartment, and she found a South Bend Police Officer. After she

      informed the police officer of what had occurred, she was taken to a hospital


      Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2785 | August 10, 2018   Page 2 of 6
      where she was examined and treated for her several injuries. Officers then

      obtained a warrant, found Pickering in the apartment, and arrested him.


[4]   The State charged Pickering with three counts of rape, as Level 3 felonies, and

      one count of battery, as a Level 6 felony. A jury found Pickering guilty of one

      count of rape and battery but acquitted him on the other two counts of rape.

      Following a sentencing hearing, the trial court sentenced Pickering to

      consecutive executed sentences of sixteen years for the Level 3 felony and two

      and one-half years for the Level 6 felony, for an aggregate sentence of eighteen

      and one-half years. This appeal ensued.


                                     Discussion and Decision
[5]   Pickering asserts that his sentence is inappropriate in light of the nature of the

      offenses and his character. As we have explained:


              Indiana Appellate Rule 7(B) permits an Indiana appellate court
              to “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.” We assess the trial court’s
              recognition or nonrecognition of aggravators and mitigators as an
              initial guide to determining whether the sentence imposed was
              inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct.
              App. 2006). The principal role of appellate review is to “leaven
              the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
              2008). A defendant must persuade the appellate court that his or
              her sentence has met the inappropriateness standard of review.
              Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).


      Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).

      Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2785 | August 10, 2018   Page 3 of 6
[6]   Here, the trial court imposed the maximum possible, fully executed sentence on

      each conviction and ordered that the sentences run consecutively. Pickering

      contends that the nature of the offenses does not support “the absolute

      maximum allowed by law,” and he asks that we revise his aggregate sentence

      down to twelve years. Appellant’s Br. at 10. And he asserts that his sentence is

      inappropriate in light of his character because his criminal history does not

      support the sentence imposed and because he has mental health and substance

      abuse issues. Pickering maintains that he is not “the worst of the worst” and

      does not, therefore, deserve the maximum sentence. Id. at 9.


[7]   We first address Pickering’s contention that he is not “the worst of the worst.”

      Id. As we have observed,


              [a]lthough the maximum possible sentences are generally most
              appropriate for the worst offenders, this rule is not an invitation
              to determine whether a worse offender could be imagined, as it is
              always possible to identify or hypothesize a significantly more
              despicable scenario, regardless of the nature of any particular
              offense and offender.


      Kovats v. State, 982 N.E.2d 409, 416 (Ind. Ct. App. 2013). By stating that

      maximum sentences are ordinarily appropriate for the “worst offenders,” we

      refer generally to the class of offenses and offenders that warrant the maximum

      punishment, which encompasses a considerable variety of offenses and

      offenders. Id. Accordingly, “[w]e concentrate less on comparing the facts of

      this case to others, whether real or hypothetical, and more on focusing on the

      nature, extent, and depravity of the offense for which the defendant is being

      Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2785 | August 10, 2018   Page 4 of 6
      sentenced, and what it reveals about the defendant’s character.” Wells v. State,

      904 N.E.2d 265, 274 (Ind. Ct. App. 2009), trans. denied.


[8]   Here, regarding the nature of the offenses, Pickering acknowledges that rape “is

      a serious offense which by its very nature carries with it emotional and physical

      trauma to the victim.” Id. Further, S.B. testified that she feared for her life

      during the attack. We cannot say that the nature of the offenses does not

      support the maximum sentence.


[9]   Regarding his character, Pickering’s criminal history includes twenty-two prior

      convictions, including three felony burglary convictions, and probation

      violations. Pickering suggests that, because his previous crimes “are mostly

      misdemeanor convictions” and are “dissimilar” and not “close in proximity” to

      the instant offenses, “the weight to which [his] criminal history should be given

      is much less than what the trial court focused upon.” Id. at 8. But the sheer

      number of convictions, coupled with probation violations, shows Pickering’s

      consistent inability to lead a law-abiding life. Regarding his alleged mental

      illness, beyond a statement in his presentence investigation report that he has

      suffered from manic depression for many years, Pickering does not direct us to

      any evidence to support his claim that he is mentally ill. And Pickering does

      not explain how his history of substance abuse and consumption of alcohol on

      the day of the offenses reflects positively on his character. We cannot say that

      Pickering’s aggregate eighteen and one-half years executed sentence is

      inappropriate in light of the nature of the offenses and his character, and we

      affirm his sentence.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2785 | August 10, 2018   Page 5 of 6
[10]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2785 | August 10, 2018   Page 6 of 6
