      MEMORANDUM DECISION
                                                                       Aug 11 2015, 10:10 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Donald E.C. Leicht                                       Gregory F. Zoeller
      Kokomo, Indiana                                          Attorney General of Indiana

                                                               Jesse R. Drum
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Levi E. Gross,                                           August 11, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               34A02-1501-CR-013
              v.                                               Appeal from the Howard Superior
                                                               Court 1

      State of Indiana,                                        Cause No. 34D01-1406-FB-431
      Appellee-Plaintiff
                                                               The Honorable William C. Menges,
                                                               Judge.




      Friedlander, Judge.

[1]   Levi Gross was charged with dealing in methamphetamine, a class B felony

      (Count I), possession of chemical reagents or precursors with intent to

      manufacture a controlled substance, a class D felony (Count II), and theft, a


      Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-013 | August 11, 2015    Page 1 of 5
      class D felony (Count III). Pursuant to a plea agreement, Count I was

      dismissed and Gross pleaded guilty to Counts II and III. The court sentenced

      him to the Department of Correction (DOC) for consecutive three-year terms,

      resulting in an aggregate sentence of six years. On appeal, Gross contends that

      his sentence is inappropriate in light of the nature of the offenses and his

      character.

      We affirm.

[2]   The facts as admitted by Gross are that on the morning of June 5, 2014, the

      town marshal received a tip that Gross and his wife Rebekah were running a

      methamphetamine lab in their home. Acting on the tip, law enforcement

      visited the Grosses’ residence and Rebekah consented to a search of the

      premises. The search produced a substantial amount of drug-related evidence.

      Law enforcement found in the garage, a lithium battery, punctured solvent

      cans, Prestone starting fluid, a half-empty bottle of drain cleaner, grinder blades

      with white residue, a gas mask, and two glass smoking devices that tested

      positive for marijuana. In a shed, officers found a green garden hose and

      coolers; both items tested positive for ammonia gas. Grow lights, ballasts,

      fertilizer, plastic potting containers, a marijuana plant, and other marijuana

      paraphernalia were also in the house.

[3]   Mr. Gross arrived during the search. When officers asked Gross about their

      findings, he said, “Everything here is mine.” Appellant’s Appendix at 92. Gross

      admitted to acting alone in stealing the anhydrous ammonia from a nearby


      Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-013 | August 11, 2015   Page 2 of 5
      farm tank, and requested that law enforcement leave his marijuana grow lights

      and his book on cultivating marijuana.

[4]   On December 17, 2014, Gross pleaded guilty to Counts II and III as set out

      above. At the sentencing hearing, Gross argued that the trial court should

      sentence him pursuant to the Probation Department’s recommendation.1 The

      trial court, however, sentenced Gross to consecutive terms of three years for

      each count. The court stated, “I will recommend to the [DOC] that the

      defendant be placed in Therapeutic Community. Upon successful completion

      of Therapeutic Community the court will reserve the right to modify the

      defendant’s sentence.” Transcript at 22. On appeal, Gross contends that his six-

      year aggregate sentence is inappropriate and requests that we sentence him

      according to the recommendation made by the Probation Department.


[5]   “We have the constitutional authority to revise a sentence if, after careful

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

      inappropriate in light of the nature of the offense and character of the offender.”

      Davis v. State, 971 N.E.2d 719, 725 (Ind. Ct. App. 2012). “Sentencing review

      under Appellate Rule 7(B) is very deferential to the trial court.” Schaadt v. State,

      30 N.E.3d 1, 4 (Ind. Ct. App. 2015). A defendant has the burden of persuading




      1
       The Probation Department recommended that Gross be ordered to the DOC for three years- two years
      executed on in-home detention with appropriate credit time given, and one year suspended to be served on
      supervised probation. Probation also recommended that Gross attend, complete, and pay for an alcohol and
      drug program and pay restitution to the victim.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-013 | August 11, 2015         Page 3 of 5
      the court that his or her sentence is inappropriate. Davis v. State, 971 N.E.2d

      719.

[6]   Sentences for class D felonies range from six months to three years, with an

      advisory sentence of one and one-half years. See Ind. Code Ann. § 35-50-2-7

      (West, Westlaw current with all 2015 First Regular Session of the 119th

      General Assembly legislation). Here, Gross was sentenced to maximum

      consecutive sentences. To determine whether the sentence is inappropriate, we

      look at the nature of the offense and Gross’s character. Ind. App. R. 7; Davis v.

      State, 971 N.E.2d 719.


[7]   We turn first to the nature of the offenses. Gross stole a tank of anhydrous

      ammonia from a local farmer, which he admittedly planned to sell for $500-

      $1000 per gallon. At Gross’s home, officers found several tools and ingredients

      commonly used to manufacture methamphetamine. Although Gross received

      the maximum sentence, the State dismissed Count I, dealing in

      methamphetamine, which would have potentially subjected Gross to twenty

      additional years. See I.C. § 35-50-2-5 (West, Westlaw current with all 2015

      First Regular Session of the 119th General Assembly legislation).

[8]   With respect to Gross’s character we observe, like the trial court, that his

      criminal history is particularly aggravating. “The significance of a criminal

      history in assessing a defendant’s character and an appropriate sentence varies

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

      current offense.” Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007).


      Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-013 | August 11, 2015   Page 4 of 5
[9]    Gross’s actions in the present case are a continuation of a troubling pattern for

       him. He has one misdemeanor conviction for public intoxication and three

       felony convictions for possession of methamphetamine, maintaining a common

       nuisance, and dealing in methamphetamine. Despite past incarceration,

       probation, and treatment, he has remained undeterred in his criminal drug

       behavior. Indeed, Gross acknowledged as much during the sentencing hearing:

                I think it is very unfortunate that I, having known better, still decided
               to make the wrong choices surrounding this matter and in private
               matters of Rebekah[‘s] and [my] life. It was very poor in character for
               me to think that stealing and getting high was going to solve any of our
               problems. I [realize] that there is no honest living in that type of
               thinking and behavior.
       Appellant’s Appendix at 72.


[10]   The Indiana Appellate Rule 7(b) requires Gross to demonstrate that his

       sentence is inappropriate in light of both the nature of his offenses and his

       character. He has not done so; therefore, we conclude that his sentence to

       consecutive terms of three years for each count is not inappropriate.

[11]   Judgment affirmed.

[12]   Riley, J., and Brown, J., concur.




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