Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                         FILED
any court except for the purpose of                        Dec 27 2012, 8:52 am
establishing the defense of res judicata,
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ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

JOHN C. BOHDAN                                  GREGORY F. ZOELLER
Deputy Public Defender                          Attorney General of Indiana
Fort Wayne, Indiana
                                                GARY R. ROM
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

LEE E. DAVIS, JR.,                              )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 02A04-1205-CR-241
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Frances C. Gull, Judge
                            Cause No. 02D06-1108-FB-167


                                    December 27, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

SHARPNACK, Senior Judge
                              STATEMENT OF THE CASE

       Lee Davis Jr. appeals the sentence he received for his conviction of robbery, a

Class B felony. Ind. Code § 35-42-5-1 (1984).

       We affirm.

                                          ISSUE

       Davis presents one issue for our review: whether his sentence is inappropriate.

                        FACTS AND PROCEDURAL HISTORY

       On July 28, 2011, Davis and three other individuals robbed a McDonald’s

restaurant in Fort Wayne while at least one of them was armed with a gun. The men

pointed a gun at the heads of two employees, and, while brandishing the gun, the men

ordered the employees to the floor and took the manager to the safe. After obtaining

money from the safe, the men left the restaurant. As they were crossing through the yard

of a home, they encountered its resident. The men ordered the resident to lie on the

ground at gunpoint and hit him in the head with a bag. The men were later apprehended,

and Davis was charged with robbery.

       Davis pleaded guilty without a plea agreement, and the trial court sentenced him to

fifteen years. It is from this sentence that he now appeals.

                             DISCUSSION AND DECISION

       Davis contends that his fifteen-year sentence is inappropriate. Particularly, he

argues that he should have received no more than the advisory sentence because he

accepted responsibility for his criminal behavior by pleading guilty.

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         We may revise a sentence authorized by statute if, after due consideration of the

trial court’s decision, we determine that the sentence is inappropriate in light of the nature

of the offense and the character of the offender. Ind. Appellate Rule 7(B). A defendant

bears the burden of persuading the appellate court that his or her sentence has met the

inappropriateness standard of review. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.

2007), clarified on reh’g, 875 N.E.2d 218 (2007).

         To assess the appropriateness of the sentence, we look first to the statutory range

established for the class of the offense. Here, the offense is a Class B felony, for which

the advisory sentence is ten years, with a minimum sentence of six years and a maximum

sentence of twenty years. Ind. Code § 35-50-2-5 (2005). Davis was sentenced to fifteen

years.

         Next, we look to the nature of the offense and the character of the offender. As to

the nature of the current offense, Davis and his companions robbed a restaurant at

gunpoint, terrorizing the employees and the customers. They also accosted a man in his

own yard, striking him in the head.

         With regard to the character of the offender, we observe that Davis has a notable

criminal history. He was placed on informal adjustment three times as a juvenile. As an

adult who was just twenty-two years old at the time of sentencing, he had already

accumulated three misdemeanor convictions and one felony conviction.                 He had

previously had his probation revoked, and he was on parole at the time he committed the

instant offense. According to his presentence investigation report, Davis is at high risk to

                                              3
reoffend. Moreover, although Davis attended substance abuse treatment, he indicated

that he has used marijuana daily since age eighteen, cocaine three times per week since

age nineteen, and that he has experimented with ecstasy.

       In his brief, Davis points out that his act of pleading guilty is a mitigating

circumstance and that there are insufficient indicators to suggest he was an inappropriate

candidate for a suspended sentence. At sentencing, the trial court acknowledged the

mitigating quality of Davis’ plea, but also recognized that Davis’ juvenile and criminal

record and failed efforts at rehabilitation were aggravating circumstances.

       Although Davis pleaded guilty to this charge, we note the pragmatism of this

decision based upon the evidence against him. See Wells v. State, 836 N.E.2d 475, 479

(Ind. Ct. App. 2005) (guilty plea does not rise to level of significant mitigation where

evidence against defendant is such that decision to plead guilty is merely pragmatic one),

trans. denied. Additionally, he has several convictions and has violated his probation.

Moreover, he was on parole at the time he committed the instant offense. It is clear that

prior leniency has proven ineffective to rehabilitate Davis, and this offense is further

proof that a longer period of incarceration is appropriate. Davis has not carried his

burden of persuading this Court that his sentence has met the inappropriateness standard

of review. See Anglemyer, 868 N.E.2d at 494. We do not find his sentence to be

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

                                      CONCLUSION

       Based upon the foregoing, we conclude that Davis’ sentence is not inappropriate.

                                              4
      Affirmed.

MATHIAS, J., and PYLE, J., concur.




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