MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                               Mar 12 2019, 9:05 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
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Madison, Indiana                                         Attorney General of Indiana

                                                         Monika Prekopa Talbot
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Christopher Lozier,                                      March 12, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1145
        v.                                               Appeal from the Dearborn Circuit
                                                         Court
State of Indiana,                                        The Honorable James D,
Appellee-Plaintiff.                                      Humphrey, Judge
                                                         The Honorable Eugene Stewart,
                                                         Senior Judge
                                                         Trial Court Cause No.
                                                         15C01-9303-CF-9



Altice, Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019                  Page 1 of 21
                                             Case Summary
[1]   In October 1992, Christopher Lozier, then age eighteen, and two male friends

      were involved in a robbery-turned-murder of a woman as she was making a

      night deposit at the bank after work. Lozier pled guilty to felony murder and

      Class B felony conspiracy to commit robbery and was sentenced to an aggregate

      seventy-year term of imprisonment. After being granted permission to pursue

      successive post-conviction relief in 2017, Lozier filed a petition for post-

      conviction relief, which the post-conviction court granted in May 2018,

      allowing Lozier to file this belated direct appeal of his sentence. He raises two

      issues that we restate as:


              I. Whether Blakely v Washington, 542 U.S. 296 (2004) applies
              retroactively to Lozier’s case and renders his sentence
              unconstitutional; and


              II. Whether Lozier’s sentence is inappropriate in light of the
              nature of the offense and the character of the offender.


[2]   We affirm.


                                   Facts & Procedural History
[3]   In October 1992, Lozier and two friends, Daniel Widener, age seventeen, and

      Shawn Davis, age eighteen, planned a robbery. They all agreed to rob a night

      manager of the Ponderosa restaurant, where Davis had worked before recently

      getting fired. They planned to use Davis’s 22-caliber revolver to scare the

      Ponderosa employee. Over the next few days, the three of them got together at


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 2 of 21
      least twice to finalize their plans. On the night of October 25, 1992, Davis gave

      the revolver to Lozier, and Lozier and Widener walked from a Wal-Mart

      parking lot to an adjacent Star Bank. 1 Lozier placed a concrete block in the

      driveway of the bank so that anyone making a night deposit would have to exit

      his or her vehicle. Lozier and Widener, while wearing masks, crouched

      between parked cars and waited outside the bank for Vanessa Wells,

      Ponderosa’s night manager, to arrive and make the restaurant’s deposit.

      According to Lozier, he placed the revolver on the ground between him and

      Widener.


[4]   When Wells arrived at the bank to make the deposit and got out of her car,

      Lozier and Widener appeared in masks and approached her. Wells screamed

      and ran back to her car and got inside it. Widener fired a shot at Wells through

      a cracked passenger-side window. Widener fired a second shot that penetrated

      Wells’s right hand and lodged in her neck, killing her. One or both of them

      moved her body to the floor of the back seat, where she was shot two more

      times. 2 Lozier drove the car to an area near a landfill, where they hid the car in

      some trees and disposed of coats, gloves, at least one mask, and the money bag

      into pools of water at the landfill. Lozier tossed the handgun into the Ohio

      River. Widener and Lozier returned to Widener’s home and went to sleep.




      1
          By agreement, Davis did not go to the bank.
      2
       At the sentencing hearing, Lozier and Widener each testified that it was the other who shot Wells when she
      was in the back of the car on the floor.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019                 Page 3 of 21
      The proceeds from the robbery were $275.00, part of which Lozier and

      Widener spent the next day at the mall on a movie and food. Wells’s husband

      reported her missing, and, several days later, hunters discovered Wells’s body

      and her car in the landfill area.


[5]   The men continued with their daily lives until they were questioned by police in

      March 1993. Police had received a report from an inmate and a Crime

      Stoppers tip that Lozier and Widener were involved in the robbery and murder

      of Wells.


[6]   In September 1993, while represented by appointed attorney Gary Sorge,

      Lozier pled guilty to felony murder and conspiracy to commit robbery, for

      which he would receive a sixty-year sentence for the felony murder conviction

      and a concurrent twenty-year sentence for the conspiracy conviction. In

      October 1993, attorney Steven Bush entered an appearance for Lozier, and

      Lozier requested and was granted permission to withdraw the plea. Lozier

      entered into a new plea agreement on October 19, 1993, again pleading guilty

      to felony murder and conspiracy to commit robbery, with sentencing left to the

      court’s discretion. Meanwhile Widener pled guilty on October 12, 1993 to

      felony murder and Class B felony conspiracy to commit robbery, and Davis

      pled guilty on October 9, 1993 to Class B felony robbery and Class B felony

      conspiracy to commit robbery. Both Widener’s and Davis’s plea agreements

      left sentencing to the trial court’s discretion.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 4 of 21
[7]   After receiving evidence over the course of several days in December 1993, the

      trial court sentenced Lozier, Davis, and Widener on January 7, 1994, later

      reduced to a written sentencing order on January 11. The court sentenced

      Lozier to forty years on the felony murder conviction, enhanced by twenty

      years, and a consecutive ten-years on the conspiracy conviction, for an

      aggregate seventy-year sentence. Lozier did not appeal. Davis received twenty

      years on the Class B felony robbery conviction and twenty years on the Class B

      felony conspiracy to commit robbery conviction, to be served consecutively.


[8]   Widener, like Lozier, received a seventy-year sentence. However, Widener

      filed a direct appeal, arguing that his sentence was manifestly unreasonable.

      Our Supreme Court determined that valid aggravators existed but that,

      although the trial court “did take into account the youthful ages of all three

      defendants,” the trial court “failed to discuss additional mitigating

      circumstances that we find significant.” Widener v. State, 659 N.E.2d 529, 534

      (Ind. 1995) (J. Dickson, dissenting). The Supreme Court identified the

      following four mitigators: (1) Widener, age seventeen, lacked a significant

      history of criminal involvement and “had not been charged or convicted of any

      criminal acts” prior to the instant charges; (2) Widener pled guilty and saved

      judicial resources; (3) “even though evidence of remorse was rejected by the

      trial court,” Widener’s act of pleading guilty “does show that he was willing to

      accept responsibility for his actions”; and (4) although Widener “actively

      engaged in the murder and robbery,” “the plan was initiated by Lozier and

      formulated primarily by Davis[.]” Id. A majority of the Supreme Court


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 5 of 21
       determined that the mitigating factors rendered the seventy-year sentence

       manifestly unreasonable and thus reduced his sentence to fifty years for the

       felony murder conviction to be served concurrent with his ten-year sentence on

       the conspiracy conviction.


[9]    In 1994 and 1995, Lozier, pro se, filed multiple praecipes for appeal or post-

       conviction relief, seeking permission to pursue direct appeal or other relief to

       have his sentence reviewed and revised, but was unsuccessful in those attempts.

       In 1996, Lozier retained attorney Matt Zerbe, and, pursuant to Ind. Post-

       Conviction Rule 2(1), Lozier filed on May 8, 1996, a petition for a belated

       appeal, which, after a hearing, was denied on July 27, 1998. Lozier did not

       appeal that decision. On March 14, 2006, Lozier filed, pro se, a second P-C.R.

       2(1) petition, which was denied on July 25, 2006. Lozier did not appeal that

       denial.


[10]   In 2009, Lozier retained attorney Ed Massey, and on November 3, 2009, Lozier

       filed a petition for post-conviction relief under P-C.R. 1 alleging sentencing

       errors, but did not raise issues of ineffective assistance of counsel. Following a

       hearing in April 2010, the post-conviction court denied his petition on March 8,

       2011, and denied his motion to correct error. Lozier did not seek appellate

       review.


[11]   In 2013 or 2014, Lozier retained attorney Sorge. On February 14, 2014, Lozier

       filed a petition for sentence modification, which, after a hearing, was denied on

       May 30, 2014. Lozier appealed, and by unpublished decision, this court


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 6 of 21
       affirmed the trial court’s denial of Lozier’s request for modification, finding that

       the trial court did not have authority to modify because “Lozier did not have

       the approval of the prosecuting attorney as required by statute” under the

       circumstances of Lozier’s case. Lozier v. State, No. 15A01-1503-CR-105, slip op.

       at *2 (Ind. Ct. App. Nov. 20, 2015). Although the court affirmed the denial of

       Lozier’s petition for sentence modification, the Lozier court determined that

       Lozier was not foreclosed from filing a request for successive post-conviction

       relief.


[12]   In 2017, Lozier secured representation by attorney Patrick McGrath. On

       September 14, 2017, Lozier sought permission from the Indiana Court of

       Appeals to pursue successive post-conviction relief, and to that end, he filed

       with the Court of Appeals a form for successive post-conviction relief and

       petition for post-conviction relief. On November 3, 2017, the Court of Appeals

       issued an order allowing Lozier to file the petition for post-conviction relief on

       the issue of ineffective assistance of counsel.


[13]   On November 13, 2017, Lozier filed in the trial court his petition alleging

       ineffective assistance of counsel. At the hearing, attorneys Bush, Massey, and

       Sorge testified. On May 2, 2018, the post-conviction court issued an order

       granting Lozier’s petition for post-conviction relief. Its findings of fact and

       conclusions of law included:


                 6. In January of 1994, Lozier, represented by Bush and
                 following Bush’s advice, entered an open plea to the trial court,



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 7 of 21
        and was subsequently sentenced to an aggregated executed
        sentence of seventy (70) years.


        7. Following sentencing, Bush advised Lozier that he should
        “wait one year” before pursuing direct appeal and/or
        modification of his sentence.


                                              ****


        9. Lozier’s co-defendant, Widener, did perfect direct appeal. In
        1995, the Indiana Supreme Court revised Widener’s sentence to
        an aggregate executed sentence of fifty (50) years. The Indiana
        Supreme Court found that Widener was the shooter and Lozier
        was an accomplice. The Indiana Supreme Court found that the
        significant mitigating factors including: young age, lack of
        substantial criminal history, entry of a plea, willingness to accept
        responsibility, and the formulation of the plan by a third party,
        Davis, warranted a revised sentence to fifty (50) years. The
        Indiana Supreme Court did not revise Widener’s sentence as a
        result of inappropriate aggravators.


        10. All of the substantial mitigating circumstances cited by the
        Indiana Supreme Court would have also applied to Lozier.
        Additionally, Lozier would have had the mitigating factor of not
        being the principle whom actually fired the weapon causing
        death. It is very likely that Lozier would have received similar or
        the same revision of his sentence had his direct appeal been
        perfected.


                                              ****


        24. Lozier is still serving his original sentence in the Indiana
        Department of Correction[] and his anticipated out date is March
        of 2024.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 8 of 21
        25. Lozier’s co-defendant, Widener, has completed his
        sentence[] and been released from incarceration.


                                              ****


        2. Bush’s conduct fell below an objective standard of
        reasonableness and deprived Lozier of his Sixth Amendment
        Protection. Bush promised to secure a better sentence; counsel
        ethically and realistically cannot promise results from a trial
        court, thus, Bush’s promise was objectively unreasonable. Bush
        advised and represented Lozier through an open plea to murder
        and robbery without obtaining the court’s or prior counsel’s file
        containing all pleadings, orders and discovery; Bush’s
        representation and advice were objectively unreasonable as no
        duly qualified and careful attorney would advise or enter into an
        open plea on a murder case without obtaining all necessary
        information. Bush advised Lozier to “wait one year” before
        pursuing direct appeal or other relief; Bush’s advice was
        objectively unreasonable as waiting one year resulted in Lozier’s
        waiver of direct appeal and motion to modify. Bush promised
        Lozier he would perfect a direct appeal from any adverse ruling
        of the trial court; Bush’s failure to secure a direct appeal or seek
        court appointed assistance in doing so was objectively
        unreasonable. Each of Bush’s failures resulted in Lozier being
        deprived of Sixth Amendment protection at sentencing and in
        pursuit of his right to appeal.


        3. There is a reasonable probability that had Bush provided
        effective representation the result in Lozier’s case would have
        been different. Lozier’s co-defendant had his sentence revised by
        the Indiana Supreme Court as a result of the Court’s
        consideration of substantial mitigators which were equally
        applicable to Lozier. Had Lozier been able to pursue direct
        appeal he likely would have had his sentence reduced as well. As
        a result Widener has been released, Lozier continues to serve his
        sentence.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 9 of 21
        4. Zerbe’s conduct fell below an objective standard of
        reasonableness and deprived Lozier of his Sixth Amendment
        Protection. Zerbe promised to perfect direct appeal of any
        adverse decision of the court; Zerbe’s failure to perfect direct
        appeal or seek court appointed assistance to do so was objectively
        unreasonable and deprived Lozier of his Sixth Amendment
        protection and his right to appeal.


        5. There is a reasonable probability that had Zerbe provided
        effective representation the result in Lozier’s case would have
        been different. Lozier had made several significant efforts to
        secure belated appeal on a pro se basis prior to retaining Zerbe.
        Lozier only failed to perfect direct appeal earlier due to the
        ineffective advice of Bush. The Indiana Courts of review and
        trial courts do not elevate form over substance and prefer to
        resolve cases on the merits. Lozier likely would have secured the
        right to belated appeal on direct [] appeal of the denial of his
        P[CR]2 request.


        6. Massey’s conduct fell below an objective standard of
        reasonableness and deprived Lozier of his Sixth Amendment
        Protection. Massey pursued PCR relief on the grounds of: 1.) the
        jury did not determine the aggravator, 2.) Lozier was present but
        did not commit the murder, 3.) Widener’s sentence was revised
        due to the improper aggravators. Massey’s basis for PCR was
        without any support in law or fact and was an objectively
        unreasonable PCR Petition. Under Indiana Law, the jury was
        not required to determine aggravators on an open plea, Lozier’s
        felony murder conviction did not require proof that he personally
        committed the murder, and the co-defendant’s sentence was no[t]
        revised due to inappropriate aggravators. Massey’s petition was
        further objectively unreasonable in that he failed to address
        known past ineffective assistance of counsel and he failed to
        address the substantial mitigating factors which resulted in the
        revision of the co-defendant’s sentence. Massey’s conduct
        further fell below ‘the objectively reasonable standard by failing

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 10 of 21
               to perfect direct appeal or seek court appointed assistance in
               doing so on Lozier’s behalf. Lozier was deprived of his Sixth
               Amendment protection and right to appeal.


               7. There is a reasonable probability that had Massey provided
               effective representation the result in Lozier’s case would have
               been different. Lozier had two prior instances of ineffective
               assistance of counsel and a significant likelihood of success on
               that issue. Had Massey presented those issues and/or perfected
               appeal from an adverse ruling on those issue[s], Lozier would
               have likely received relief.


       Appellant’s Appendix Vol. 7 at 223-229. The post-conviction court “granted

       [Lozier] the right to pursue belated direct appeal of his sentence.” Id. at 230.

       Lozier now appeals.


                                         Discussion & Decision
                                                     1. Blakely

[14]   The trial court imposed forty years for felony murder, enhanced by twenty

       years, 3 and, in support of the enhancement, the trial court found the following

       aggravators:


               a. The Court finds that the manner in which the crime was
               committed was peculiarly heinous, cold blooded and callous in
               that the defendant shot at the victim after she had been




       3
         At the time, the presumptive sentence for felony murder was forty years, to which no more than twenty
       years could be added for aggravating circumstances and not more than twenty years subtracted for mitigating
       circumstances. Ind. Code § 35-50-2-3.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019                Page 11 of 21
         immobilized by the co-defendant, Widener; 4 That the bizarre
         disposition of the body by throwing it in the back floorboards of
         the car, stuffing the legs in the car and firing at it again, taking it
         to the city dump and leaving it in the car abandoned in a marshy
         wooded area, is offensive to human decency;


         b. The defendant exhibited a surprising lack of remorse or
         concern exhibited by the calculated and careful disposition of the
         gun, the bullets, the mask and the bank bag immediately after the
         body had been abandoned in the Lawrenceburg city dump; and
         further considering the events of the next day, within a few hours
         of the killing, which involved a trip to the shopping center, a
         movie and other recreational and play activities with the
         proceeds of the robbery display a callous lack of remorse which
         shocks and offends the human conscience;


         c. That defendant and co-defendant, Widener, acted in concert
         in the robbery and the killing;


         d. That the imposition of any reduced or suspended sentence
         would depreciate the seriousness of this crime;


         e. That the defendant has an extensive criminal history of
         increasing severity;


         f. That efforts having been previously made to reform the
         defendant have failed, and the defendant is in need of




4
 We note that, although the court’s written sentencing order indicates that Lozier fired the shots at Wells
when she was on the floor in the back seat of the car, the trial court at the sentencing hearing told Lozier, “It
doesn’t matter who fired those other shots into the victim after she was . . . in the back. What you did, you
did together. . . . I do not have to decide who did that when it came to the second shots.” Supplemental
Record of Proceedings at 11.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019                      Page 12 of 21
               correctional treatment that can best be provided by a lengthy
               commitment to a penal facility.


       Appellant’s Appendix Vol. 3 at 163. The trial court’s reasons for ordering the ten-

       year sentence for the Class B felony conspiracy to commit robbery conviction to

       be served consecutively included some of the above-listed aggravators, plus the

       fact that “[a] human being met her death as the result of the conspiracy.” Id. at

       164. In this belated appeal, Lozier asserts that “none of the facts used as

       aggravators by the trial court were presented for consideration [to] the jury” and

       that his sentence is unconstitutional under Blakely. Appellant’s Brief at 22. As

       explained below, however, we find that Blakely does not apply here.


[15]   On June 24, 2004, the United States Supreme Court decided Blakely, which

       held: “‘Other than the fact of a prior conviction, any fact that increases the

       penalty for a crime beyond the prescribed statutory maximum must be

       submitted to a jury, and proved beyond a reasonable doubt.’” Blakely v.

       Washington, 542 U.S. 296, 301 (2004) (quoting Apprendi v. New Jersey, 530 U.S.

       466, 490 (2000)). Under Blakely a trial court may not enhance a sentence based

       on additional facts, unless those facts are either (1) a prior conviction; (2) facts

       found by a jury beyond a reasonable doubt; (3) facts admitted by the defendant;

       or (4) facts found by the sentencing judge after the defendant has waived

       Apprendi rights and consented to judicial factfinding. Gutermuth v. State, 868

       N.E.2d 427, 431 (Ind. 2007).


[16]   In response to Blakely, our Supreme Court in Smylie v. State, 823 N.E.2d 679,

       686-87 (Ind. 2005), cert. denied, 546 U.S. 976 (2005), held that Indiana’s pre-
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 13 of 21
       2005 sentencing scheme violated the Sixth Amendment because it provided for

       an enhanced sentence based on facts neither found by a jury nor admitted by

       the defendant. 5 In addressing the question of Blakely’s applicability to pre-

       Blakely sentences, the Smylie Court recognized the rule from Griffith v. Kentucky,

       479 U.S. 314, 328 (1987) providing that “a new rule for the conduct of criminal

       prosecutions is to be applied retroactively to all cases, state or federal, pending

       on direct review or not yet final.” (Emphasis added). Smylie determined that

       Blakely constituted a “new rule” for purposes of retroactivity and held that

       Blakely would be applied “retroactively to all cases on direct review at the time

       Blakely was announced.” Smylie, 823 N.E.2d at 690-91. Relying on this

       principle, Lozier maintains that his sentence “is being challenged on ‘direct

       review’” and “revision of his sentence should be mandatory.” Id. at 23. We

       cannot agree.


[17]   While Smylie directed that Blakely would be applied retroactively to all cases

       “on direct review” at the time Blakely was announced, Smylie did not consider

       whether an unappealed sentence is “not yet final” based on the potential

       availability of a belated appeal. Our Supreme Court expressly did so, however,

       in Gutermuth, where the Court addressed whether Blakely applies in belated

       appeals under P-C.R. 2. The Gutermuth Court clarified that a belated appeal “is

       treated as though it was filed within the time period for a timely appeal” and “is



       5
         Shortly after Smylie, Indiana’s General Assembly adopted a new sentencing scheme in April 2005
       providing for advisory sentences and allowing a trial court to impose any sentence that is authorized by
       statute regardless of the presence or absence of aggravating or mitigating circumstances.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019                  Page 14 of 21
       subject to the law that would have governed a timely appeal.” 868 N.E.2d at

       433. That is, “parties to a belated appeal should not receive a different result

       because the new law has been handed down that would not have been available

       if a timely appeal had been taken.” Id. at 434. The Gutermuth Court held that

       “a defendant’s case becomes ‘final’ for purposes of retroactivity when the time

       for filing a timely direct appeal has expired.” Id. at 435. Applying that

       principle, the Court held that “Blakely is not retroactive for Post-Conviction

       Rule 2 belated appeals because such appeals are neither ‘pending on direct

       review’ nor ‘not yet final’ under Griffith.” Id. Accordingly, “belated appeals of

       sentences entered before Blakely . . . are not subject to the holding in that case.”

       Id. at 428.


[18]   This is a belated appeal pursuant to P-C.R. 2. Lozier was sentenced in January

       1994. His case was final for purposes of retroactivity when the time for filing a

       direct appeal expired, which was long before Blakely was decided in 2004.

       Because Lozier’s case was neither “pending on direct review” nor “not yet

       final” when Blakely was decided, Blakely does not apply retroactively to him.


                                         2. Inappropriate Sentence

[19]   Lozier claims that his seventy-year aggregate sentence is inappropriate.

       Pursuant to Ind. Appellate Rule 7(B), this 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.” Our Supreme Court has explained that the

       principal role of appellate review should be to attempt to leaven the outliers,
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 15 of 21
       “not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895

       N.E.2d 1219, 1225 (Ind. 2008). “‘[W]e must and should exercise deference to a

       trial court’s sentencing decision, both because Rule 7(B) requires us to give ‘due

       consideration’ to that decision and because we understand and recognize the

       unique perspective a trial court brings to its sentencing decisions.’” Rogers v.

       State, 878 N.E.2d 269, 275 (Ind. Ct. App. 2007) (quoting Stewart v. State, 866

       N.E.2d 858, 866 (Ind. Ct. App. 2007)), trans. denied. “Such deference should

       prevail 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).


[20]   The determination of whether we regard a sentence as inappropriate “turns on

       our sense of the culpability of the defendant, the severity of the crime, the

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

       case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013). The question under

       App. R. 7(B) is “not whether another sentence is more appropriate” but rather

       “whether the sentence imposed is inappropriate.” Miller v. State, 105 N.E.3d

       194, 196 (Ind. Ct. App. 2018). Lozier bears the burden of persuading us that

       his sentence is inappropriate. Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct.

       App. 2013), trans. denied.


[21]   As this court has recognized, “[t]he nature of the offense is found in the details

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

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 16 of 21
       participation.” Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). Lozier

       argues that he was one of three young men “who entered into an ill-conceived

       agreement to attempt what they thought would be an easy robbery” and

       highlights that Davis provided the target and the gun and that Widener

       discharged the gun and “accelerated the robbery into a murder.” Appellant’s

       Brief at 14. Lozier acknowledges that he “played his part in the crime,” but

       maintains that his participation “was minimal” in comparison to Widener’s,

       whose “panicked and unnecessary conduct” resulted in Wells’s death. Id. at 18.

       Lozier thus suggests that his culpability was less than Widener’s, who, after

       appeal, received a fifty-year aggregate sentence, and that his sentence should be

       revised to a fifty-year aggregate term. We disagree that the nature of the offense

       warrants a reduction in his sentence.


[22]   Lozier and his co-defendants decided to rob the night manager of Ponderosa to

       get some cash. While wearing masks, Lozier and Widener crouched in hiding

       for the victim to arrive. They brought Davis’s gun with them. Lozier placed a

       cement block in the bank driveway so that the driver would need to exit her car.

       The first shot to Wells injured her and the second killed her. Thereafter, Lozier

       and/or Widener moved her to the back seat. One or both of them shot her two

       additional times. Lozier drove the car to a landfill area and hid the car amongst

       trees. Lozier and Widener continued with their lives until being questioned

       four or five months later, in March 1993. The nature of the offense displays a

       callous disregard for human life. Lozier has not shown that a sentence

       reduction is warranted based on the nature of the offense.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 17 of 21
[23]   “The character of the offender is found in what we learn of the offender’s life

       and conduct.” Croy, 953 N.E.2d at 664. Lozier urges that he had “significant

       trauma” in his childhood, which included being raised by an alcoholic mother

       and abusive stepfather. Appellant’s Brief at 19. At his sentencing hearing, Lozier

       described being abused by his biological father who “forcibly injected” Lozier

       with heroin when Lozier was in eighth grade and allowed others to rape Lozier.

       Id. At some point his mother temporarily lost custody of him and his siblings,

       who temporarily lived in foster care. When they returned to her care, Lozier

       stated that he became primarily responsible for protecting and providing for his

       siblings and that he “resorted to stealing to try to keep his family afloat.” Id.


[24]   As to his character, Lozier also emphasizes that when law enforcement

       interviewed him in March 1993, he confessed, expressed remorse, and

       voluntarily participated in multiple interviews. He also provided law

       enforcement with details, taking police to where he and Widener had disposed

       of clothing and a mask, and where he had thrown the gun, which allowed law

       enforcement to recover the gun from the river. He obtained his GED while

       awaiting sentencing. In arguing for sentence revision, Lozier reminds us that in

       1995 our Supreme Court reduced Widener’s sentence to fifty years given

       mitigating circumstances including Widener’s youth, plea of guilty, and limited

       criminal history, and, as a result, Widener was released in April 2016, yet

       “Lozier remains incarcerated when the man who pulled the trigger walks free.”

       Id. at 21. Lozier argues that his character warrants “at least as much

       consideration as Widener received” and that we should revise his sentence to


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 18 of 21
       fifty-year aggregate term and remand with instructions to release him. Id. We

       do not find, however, that Lozier’s character warrants sentence revision.


[25]   While Lozier emphasizes that he did not pull the trigger and that it was

       Widener’s panicked and impulsive reaction that turned a blundered robbery

       into a “serious and heinous crime[,]” we examine more than who pulled the

       trigger. Id. at 17. Lozier chose to actively plan and participate in the robbery.

       Indeed, in Widener’s appeal, our Supreme Court found that “the plan was

       initiated by Lozier[.]” Widener, 659 N.E.2d at 534. After Wells was shot,

       Lozier moved her body, either on his own or with Widener’s help, to the floor

       of the back seat, and after one of them shot her again, Lozier drove the car and

       hid it. Lozier took the gun and threw it in the Ohio River. Lozier and Widener

       also discarded other items including gloves, a mask, and the money bag. The

       day after the murder, Lozier went to the mall, saw a movie, and spent proceeds.

       While Lozier emphasizes that he confessed to police and cooperated, that

       occurred months later when police already were armed with information from

       two sources that Lozier and Widener were involved in the crimes. Lozier’s

       planning, commission, and hiding of the crime reflect poorly on his character.

       We do not dispute, nor are we unsympathetic to, Lozier’s characterization that

       he had a “wretched childhood.” Appellant’s Brief at 20. However, “Our

       supreme court has ‘consistently held that evidence of a difficult childhood

       warrants little, if any, mitigating weight.’” Patterson v. State, 909 N.E.2d 1058,

       1062 (Ind. Ct. App. 2009) (quoting Ritchie v. State, 875 N.E.2d 706, 725 (Ind.

       2007)); see also Carter v. State, 44 N.E.3d 47, 56 (Ind. Ct. App. 2015)


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 19 of 21
       (recognizing defendant’s “horrendous” childhood but rejecting claim that

       subsequent criminal activity was “inevitable”).


[26]   “When considering the character of the offender, one relevant fact is the

       defendant’s criminal history,” and “[t]he significance of criminal history varies

       based on the gravity, nature, and number of prior offenses in relation to the

       current offense.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017)

       (quoting Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans.

       denied), trans. denied. The trial court may consider not only the defendant’s

       adult criminal history but also his juvenile delinquency record in determining

       whether his criminal history is significant. Id.


[27]   On appeal, Lozier does not mention having any criminal history. In its written

       sentencing order, however, the trial court observed that Lozier “has an

       extensive criminal history of increasing severity.” 6 Appellant’s Appendix Vol. 3 at

       163. The record reflects that as a juvenile Lozier had an informal adjustment

       for criminal mischief for causing property damage. When he was eighteen, he

       was convicted of Class A misdemeanor theft, originally charged as a felony,

       and placed on probation for a year. While on probation, he was charged with

       burglary and theft. While out on bond on those charges, and still on probation




       6
         When discussing Lozier’s criminal history, the State indicates that “because Defendant has chosen not to
       include his pre-sentence investigation report in the record, this Court will not be able to review that criminal
       history but will simply have to take the trial court’s observation in that regard at face value.” Appellee’s Brief
       at 14. However, Lozier’s 1993 pre-sentence investigation report was included in the record at Appellant’s
       Confidential Appendix Vol. 6.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019                       Page 20 of 21
       for theft, he committed the current offenses. After the death of Wells, he pled

       guilty to Class D felony theft and was sentenced to three years that would be

       served concurrent with whatever sentence would be imposed in the felony

       murder and robbery cause. We find that Lozier had amassed several offenses,

       increasing in severity, and he committed them while out on bond and

       probation. This is distinguishable from Widener, who had virtually no criminal

       history before or after the robbery and murder and had “never been convicted of

       a criminal act nor formally adjudicated a delinquent.” 7 Prior Record of

       Proceedings Vol. 2 at 85. We conclude that Lozier has not shown that his

       character renders the sentence inappropriate.


[28]   We reiterate that our task on appeal is not to determine whether another

       sentence might be more appropriate; rather, the inquiry is whether the imposed

       sentence is inappropriate. Barker, 994 N.E.2d at 315. Lozier has failed to carry

       his burden of establishing that his sentence is inappropriate in light of the nature

       of the offense and his character.


[29]   Judgment affirmed.


       Najam, J. and Pyle, J., concur.




       7
        According to the record, Widener had one informal adjustment as a juvenile in April 1992 for “minor
       consuming.” Prior Record of Proceedings Vol. 2 at 85.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019               Page 21 of 21
