FOR PUBLICATION



ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:
TERI A. FLORY                                 GREGORY F. ZOELLER
Flory and Smith                               Attorney General of Indiana
Lafayette, Indiana
                                              AARON J. SPOLARICH
                                              Deputy Attorney General
                                              Indianapolis, Indiana
                                                                            FILED
                                                                        Feb 26 2013, 9:30 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                 CLERK
                                                                               of the supreme court,
                                                                               court of appeals and
                                                                                      tax court




PAUL M. BROCK,                                )
                                              )
       Appellant-Defendant,                   )
                                              )
          vs.                                 )        No. 79A04-1208-CR-433
                                              )
STATE OF INDIANA,                             )
                                              )
       Appellee-Plaintiff.                    )

                  APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                      The Honorable Carl E. Van Dorn, Senior Judge
                        The Honorable Randy J. Williams, Judge
                             Cause No. 79D01-1201-FC-1


                                   February 26, 2013
                              OPINION – FOR PUBLICATION

MATHIAS, Judge
       Paul M. Brock (“Brock”) was convicted in Tippecanoe Superior Court of Class C

felony auto theft, Class D felony intimidation, Class A misdemeanor operating a vehicle

while intoxicated, Class A misdemeanor resisting law enforcement, and Class A

misdemeanor striking a law enforcement animal, and was also found to be an habitual

offender. The trial court sentenced Brock to an aggregate sentence of twelve years, with

eleven years executed and one year suspended to probation. Brock appeals and presents

three issues, which we restate as:

       I.     Whether the trial court abused its discretion in considering as an
              aggravating factor that Brock had a history of rules violations when
              previously incarcerated;

       II.    Whether the sentence imposed by the trial court constitutes impermissible
              double enhancement of Brock’s sentence; and

       III.   Whether Brock’s sentence is inappropriate in light of the nature of the
              offenses and the character of the offender.

       We affirm.

                              Facts and Procedural History

       On the night of January 6, 2012, Crystal Cochran (“Cochran”), a manager of a gas

station convenience store in Lafayette, Indiana, was preparing to finish her shift. In

preparation, she started her car and left it running so that it would be warmed up when

she was ready to leave. When she went back inside the store, she saw a regular customer,

later identified as Brock. Shortly after Cochran came back inside, Brock left the store,

got into Cochran’s car, and drove away. Cochran telephoned the police and informed

them that someone had just stolen her car.



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       The police quickly located Brock driving Cochran’s stolen car and stopped the

vehicle. When the police attempted to place handcuffs on Brock, he pulled away from

the officers. One of the officers was accompanied by a police dog, and he used the dog to

help subdue Brock. Brock responded by kicking the dog twice in the head. The police

observed that Brock appeared to be intoxicated. As the police transported Brock to the

hospital, Brock told the officers that he wanted out of the handcuffs so that he could

“whoop [their] ass[es],” and further stated that he would “hunt down” every officer

involved in his arrest and “eat their children, dogs, and entire families when he found

them.” Appellant’s App. p. 15. A blood test taken at the hospital revealed that Brock

had a blood alcohol concentration (“BAC”) of .26.

       On January 11, 2012, the State charged Brock as follows: Count I, Class C felony

auto theft with a prior conviction of auto theft; Count II, Class C felony auto theft; Count

III, Class A misdemeanor resisting law enforcement; Count IV, Class D felony

intimidation; Count V, Class A misdemeanor operating a vehicle while intoxicated

endangering a person; Count VI, Class A misdemeanor operating a vehicle while

intoxicated with a BAC of at least .15; and Count VII, Class A misdemeanor striking a

law enforcement animal. The State later amended Count II to a Class D felony and also

added an allegation that Brock was an habitual offender.

       On July 2, 2012, Brock pleaded guilty to all counts without a plea agreement. The

trial court accepted the plea and held a sentencing hearing on August 2, 2012. The court

found as mitigating that Brock pleaded guilty without a plea agreement, had a history of

employment, and had mental health issues. The trial court found as aggravating that

                                             3
Brock had an extensive criminal history, was on probation at the time of the instant

offenses, had a history of substance abuse, had previously violated rules when

incarcerated, and that prior attempts at rehabilitation had failed.

       The trial court merged Count II into Count I and Count V into Count VI. The

court then sentenced Brock to seven years on the Class C felony conviction in Count I,

two years on the Class D felony conviction in Count IV, and one year each on the Class

A misdemeanor convictions in Counts III, VI, and VII. The sentences on Counts I, IV,

and VI were ordered to be served consecutively to each other, and the sentences on

Counts III and VII were ordered to be served concurrently with the other sentences. The

trial court attached the habitual offender enhancement to Count IV, enhancing the Class

D felony conviction for intimidation by two years. Thus, the trial court sentenced Brock

to an aggregate term of twelve years. The trial court also ordered Brock to serve eleven

of these years executed, with one of the years executed in community corrections, and

suspended one year to probation. Brock now appeals.

                             I. Improper Aggravating Factor

       Brock first claims that the trial court abused its discretion by considering an

improper aggravating factor, i.e., that Brock had a history of rules violations during his

previous periods of incarceration. Sentencing decisions “rest within the sound discretion

of the trial court and are reviewed on appeal only for an abuse of discretion.” Anglemyer

v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. A trial

court may abuse its sentencing discretion by: (1) failing to enter a sentencing statement,

(2) finding aggravating or mitigating factors unsupported by the record, (3) omitting

                                              4
mitigating factors clearly supported by the record and advanced for consideration, or (4)

giving reasons that are improper as a matter of law. Id. at 490-91. Because a trial court

no longer has any obligation to weigh aggravating and mitigating factors against each

other when imposing a sentence under the advisory sentencing scheme, it cannot now be

said to have abused its discretion in failing to properly weigh such factors. Id. at 491.

       Brock acknowledges that a defendant’s behavior during incarceration may be

considered as an aggravating factor, as it relates to the risk that the defendant will commit

another crime. See Anderson v. State, 798 N.E.2d 875, 880-81 (Ind. Ct. App. 2003).

However, Brock claims that there was an insufficient factual basis for the trial court’s

finding that he had violated the rules when previously incarcerated. We disagree.

       The pre-sentencing investigation report (“PSI”) included a document prepared by

the Kansas Department of Corrections indicating that six disciplinary reports had been

filed against Brock while incarcerated in that state. Appellant’s App. p. 154-55. Brock

had the opportunity to review the PSI but made no objection to the information therein

pertaining to his behavior while incarcerated. See Tr. p. 33-34. Thus, Brock did have the

opportunity to challenge the factual basis of the aggravating factor he now challenges on

appeal, but failed to do so. And he cannot now challenge this factual basis for the first

time on appeal.

       Still, even if we were to agree with Brock with regard to the propriety of this

aggravating factor, remand for resentencing is an appropriate remedy only if we cannot

say with confidence that the trial court would have imposed the same sentence had it

properly considered reasons that enjoy support in the record. Anglemyer, 868 N.E.2d at

                                              5
490. Here, the trial court found several other aggravating factors, including: Brock’s

significant criminal history, which includes ten prior felony convictions and over twenty

prior misdemeanor convictions; that Brock was on probation at the time of the current

offense; and that prior attempts at rehabilitation have failed. Given these aggravating

factors, none of which Brock challenges on appeal, we can say with confidence that the

trial court would have imposed the same sentence even if it had not considered Brock’s

behavior while incarcerated as an aggravating factor.1

                              II. Habitual Offender Enhancement

        Brock next claims that the trial court erred in ordering the sentence enhanced by

the general habitual offender statute to run consecutively with his sentence for auto theft.

Our supreme court has held that “a defendant convicted under a progressive penalty

statute ‘may not have his or her sentence enhanced under the general habitual offender

statute by proof of the same felony . . . .’ used to elevate the underlying charge.” Beldon

v. State, 926 N.E.2d 480, 483 (Ind. 2010) (quoting Mills v. State, 868 N.E.2d 446, 452

(Ind. 2007) (emphasis supplied in Beldon).

        Here, Brock’s conviction for auto theft was elevated to a Class C felony based on

his prior conviction for auto theft in 2011. See Appellant’s App. p. 7. However, this

same offense was not then used again to support the general habitual offender

enhancement. To the contrary, the predicate offenses supporting the general habitual

1
  Furthermore, if we conclude that the trial court has abused its discretion in sentencing, we need not
remand for resentencing if the sentence imposed is not inappropriate. Chappell v. State, 966 N.E.2d 124,
134 n.10 (Ind. Ct. App. 2012), trans. denied; see also Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007)
(noting that when trial court errs in sentencing defendant, court on appeal may exercise authority to
review and revise sentence instead of remanding for resentencing). As discussed infra, we conclude that
Brock’s sentence is not inappropriate.
                                                    6
offender enhancement were Brock’s 1998 conviction for Class D felony residential entry

and his 2006 conviction for Class D felony theft. Thus, in the present case, there is no

issue with using the same prior felony conviction to both elevate the charge and support

an enhancement under the general habitual offender statute.

       Still, our supreme court in Beldon also stated that “‘[A]bsent explicit legislative

direction, a sentence imposed following conviction under a progressive penalty statute

may not be increased further under either the general habitual offender statute or a

specialized habitual offender statute.’” Id. (quoting State v. Downey, 770 N.E.2d 794,

796 (Ind. 2002)). Brock claims that his conviction for auto theft was a progressive

penalty conviction because it was elevated to a Class C felony based on his prior

conviction for auto theft. We agree. See Davis v. State, 935 N.E.2d 1215, 1218 (Ind. Ct.

App. 2010) (treating conviction for Class C felony auto theft as a conviction under a

progressive penalty statute), trans. denied.

       We disagree, however, with Brock’s assertion that his conviction under this

progressive penalty statute was further enhanced by the general habitual offender statute.

The trial court here clearly attached the habitual offender enhancement to Brock’s

conviction for Class D felony intimidation, not his elevated conviction for Class C felony

auto theft.

       This case is therefore distinguishable from Dye v. State, 972 N.E.2d 853 (Ind.

2012). In Dye, the defendant was convicted of possession of a firearm by a serious

violent felon (“SVF”) based upon his 1998 conviction for battery with a deadly weapon.

Dye’s sentence on his SVF conviction was then enhanced under the general habitual

                                               7
offender statute based upon his 1998 conviction for possession of a handgun within 1,000

feet of a school and his 1993 conviction for forgery. Our supreme court held that the

SVF conviction was pursuant to a progressive penalty statute and that, therefore, the

sentence on this conviction could not be further enhanced by the general habitual

offender statute. Id. at 858.

        In contrast, here Brock’s sentence for auto theft was elevated to a Class C felony

under a progressive penalty statute, but was not further enhanced by the general habitual

offender statute. Instead, the trial court explicitly attached the general habitual offender

enhancement to Brock’s sentence for intimidation.2

        Brock nevertheless claims that he was subject to double enhancement because the

trial court ordered his sentence for intimidation, which was enhanced by the general

habitual offender statute, to run consecutively to the sentence for auto theft, which was

elevated under a progressive penalty statute. But this does not mean that the sentence for

auto theft was itself enhanced under the general habitual offender statute.

        We acknowledge our supreme court’s opinion in Sweatt v. State, 887 N.E.2d 81

(Ind. 2008), but find it readily distinguishable.                In Sweatt, the defendant’s SVF

conviction and his status as an habitual offender were both based on the same prior rape

2
  This is a significant difference. Had the trial court attached the general habitual offender enhancement
to the already-elevated conviction for Class C felony auto theft, Brock would have been subject to an
habitual offender enhancement of four to twelve years. See Ind. Code § 35-50-2-8 (providing habitual
offender enhancement must be equivalent to at least the advisory sentence but no more than three times
the advisory); Ind. Code § 35-50-2-6 (providing that advisory sentence for a Class C felony is four years).
Such double enhancement is prohibited. See Beldon, 926 N.E.2d at 483. However, because the trial
court was required by case law to attach the general habitual offender enhancement to the Class D felony
intimidation conviction, Brock was subject to an enhancement of only one and one-half to four and one-
half years. See I.C. § 35-50-2-8; Ind. Code § 35-50-2-7 (providing that advisory sentence for Class D
felony is one and one-half years).
                                                    8
conviction.   But the habitual offender enhancement was applied to the defendant’s

conviction for burglary, not his SVF conviction. Our supreme court held that this “d[id]

not . . . create a double enhancement” because the prior rape conviction supported

enhancements that operated on separate counts. Id. at 84. However, the court held that

“where separate counts are enhanced based on the same prior felony conviction, ordering

the sentences to run consecutively has the same effect as if the enhancements both

applied to the same count.” Id.

       Here, the trial court did order both the sentence on the elevated conviction for auto

theft and the enhanced sentence for intimidation to be served consecutively. But here,

unlike in Sweatt, these enhancements were not based on the same prior felony conviction.

We therefore conclude that Sweatt is not controlling and that the trial court’s imposition

of consecutive sentences does not constitute improper double enhancement under the

facts and circumstances of the present case.

                                  III. Appellate Rule 7(B)

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

appellate review and revision of a sentence imposed by the trial court. This appellate

authority is implemented through Indiana Appellate Rule 7(B), which provides that a

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 our review of sentences under this rule,

“we 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

                                               9
understand and recognize the unique perspective a trial court brings to its sentencing

decisions.” Trainor v. State, 950 N.E.2d 352, 355 (Ind. Ct. App. 2011), trans. denied.

And although we have the power to review and revise sentences, “[t]he 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 improvement of the sentencing statutes,

but not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895

N.E.2d 1219, 1225 (Ind. 2008). It is the defendant’s burden on appeal to persuade us that

the sentence imposed by the trial court is inappropriate. Trainor, 950 N.E.2d at 355;

Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       Here, the nature of Brock’s offenses support the trial court’s sentencing decision.

Brock’s BAC was .26, over three times the statutory threshold of .08, and almost double

the .15 required to elevate his OWI conviction to a Class A misdemeanor.               Brock

brazenly stole a running vehicle and resisted the police when they attempted to arrest

him, kicking a police dog twice in the head. Brock threatened not only to physically

attack the officers, but also threatened to “hunt down” and “eat” the officers’ children,

families, and pets. Appellant’s App. p. 15.

       Moreover, the character of the offender alone would support the trial court’s

sentencing decision. Brock has a lengthy criminal history that includes ten prior felony

convictions for crimes such as battery causing serious bodily injury, battery causing

bodily injury, battery by bodily waste, intimidation, burglary, residential entry, theft, auto

theft, resisting law enforcement, and possession of marijuana. See Appellant’s App. pp.

122-27. Brock has also accumulated over twenty prior misdemeanor convictions. His

                                              10
criminal history also includes convictions for the same crimes he committed in the instant

case, i.e. auto theft, intimidation, resisting law enforcement, and operating a vehicle while

intoxicated. See Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007) (noting

that the significance of a defendant’s criminal history in assessing his character varies

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

offense).   Brock’s criminal history reveals that he is a violent offender, and prior

showings of leniency and attempts of rehabilitation have failed. Indeed, Brock has

repeatedly violated the terms of his probation and had his probation revoked, and Brock

was on probation at the time of the instant offenses.

       Although Brock now claims that his criminal history is the result of untreated

mental illness, there is no indication that he has sought treatment for any mental illness.

Indeed, the State notes that Brock had over twenty years to seek treatment, but has failed

to do so. Under these facts and circumstances, we are unable to say that Brock’s

aggregate sentence of twelve years, with one year suspended to probation, is

inappropriate in light of the nature of the offenses and the character of the offender.

                                        Conclusion

       The trial court did not abuse its discretion in considering Brock’s behavior while

incarcerated as an aggravating factor, and even if it did abuse its discretion, any error was

harmless. Nor did the trial court subject Brock to impermissible double enhancement

when it ordered his elevated sentence for auto theft to be served consecutively to the

sentence for intimidation that was enhanced under the general habitual offender statute.



                                             11
Lastly, Brock’s sentence of twelve years, with one year suspended to probation, is not

inappropriate in light of the nature of the offenses and the character of the offender.

       Affirmed.

KIRSCH, J., and CRONE, J., concur.




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