MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be
                                                                             Mar 29 2019, 6:34 am
regarded as precedent or cited before any
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
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Benjamin J. Shoptaw
                                                         Angela Sanchez
                                                         Lyubov Gore
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Lewis Klayton Kratzer,                                   March 29, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1885
        v.                                               Appeal from the Parke Circuit
                                                         Court
State of Indiana,                                        The Honorable Sam A. Swaim,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         61C01-1601-F3-11



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1885 | March 29, 2019                       Page 1 of 5
                                       Statement of the Case
[1]   Following a remand for sentencing, Lewis Kratzer (“Kratzer”) appeals the

      fifteen-year aggregate sentence imposed after being convicted of Level 5 felony

      attempted robbery1 and Level 4 felony unlawful possession of a firearm by a

      serious violent felon.2 He argues that his sentence is inappropriate in light of

      the nature of his offenses and his character. Concluding that the sentence is not

      inappropriate, we affirm Kratzer’s sentence.


[2]   We affirm.


                                                     Issue
                               Whether Kratzer’s sentence is inappropriate.

                                                     Facts
[3]   The facts underlying Kratzer’s convictions were stated by this Court in his first

      direct appeal as follows:


                 On January 12, 2016, a man later identified as Kratzer entered
                 the Montezuma Quick Stop in Parke County, pointed a handgun
                 at the clerk, and demanded money. When the clerk called out to
                 her supervisor, Kratzer left the store.

                 Later that night, Terre Haute police officers were dispatched to
                 investigate a report of a suspicious vehicle at the Red Roof Inn.
                 As the officers approached the vehicle, the driver disregarded
                 commands to stop and drove off. Eventually, the vehicle stopped
                 and the driver and passenger both fled on foot. They were



      1
          IND. CODE § 35-42-5-1.
      2
          I.C. § 35-47-4-5.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1885 | March 29, 2019   Page 2 of 5
              apprehended and arrested. Kratzer, the passenger, was wearing
              clothing like that worn by the would-be robber of the Montezuma
              Quick Stop. Inside the vehicle, there was a handgun.

      Kratzer v. State, No. 61A01-1707-CR-1680 (Ind. Ct. App. Feb. 27, 2018).


[4]   Kratzer was originally convicted of Level 3 felony attempted robbery. On

      direct appeal, this Court reduced the Level 3 felony conviction to a Level 5

      felony conviction on double jeopardy grounds and remanded for sentencing.

      On remand, the trial court reduced Kratzer’s attempted robbery conviction to a

      Level 5 felony and sentenced him to five (5) years. The trial court also

      increased Kratzer’s Level 4 felony sentence to ten (10) years, an increase of two

      years. The trial court ordered the sentences to be served consecutively, for an

      aggregate sentence of fifteen (15) years. Kratzer now appeals.


                                                  Decision
[5]   Kratzer argues that his aggregate sentence of fifteen years is inappropriate in

      light of the nature of the offenses and his character. This Court may revise a

      sentence if it is inappropriate in light of the nature of the offenses and the

      character of the offender. Ind. Appellate Rule 7(B). “The 7(B)

      ‘appropriateness’ inquiry is a discretionary exercise of the appellate court’s

      judgment, not unlike the trial court’s discretionary sentencing determination.”

      Knapp v. State, 9 N.E.3d 1274, 1291-92 (Ind. 2014), cert. denied. “On appeal,

      though, we conduct that review with substantial deference and give due

      consideration to the trial court’s decision—since the principal role of our review

      is to attempt to leaven the outliers, and not to achieve a perceived correct


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1885 | March 29, 2019   Page 3 of 5
      sentence.” Id. at 1292 (internal quotation marks, internal bracket, and citation

      omitted). “Appellate Rule 7(B) analysis is not to determine whether another

      sentence is more appropriate but rather whether the sentence imposed is

      inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal

      quotation marks and citation omitted), reh’g denied. The defendant has the

      burden of persuading the appellate court that his sentence is inappropriate.

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


[6]   “‘[R]egarding the nature of the offense, the advisory sentence is the starting

      point the Legislature has selected as an appropriate sentence for the crime

      committed.’” Bowman v. State, 51 N.E.4d 1174, 1181 (Ind. 2016) (quoting

      Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d

      218 (Ind. 2007)). Here, Kratzer was convicted of one Level 5 felony and one

      Level 4 felony. The sentencing range for a Level 5 felony is “for a fixed term of

      between one (1) and six (6) years, with the advisory sentence being three (3)

      years.” I.C. § 35-50-2-6(b). The sentencing range for a Level 4 felony is “for a

      fixed term of between two (2) and twelve (12) years, with the advisory sentence

      being six (6) years.” I.C. § 35-50-2-5.5. The trial court sentenced Kratzer to

      five (5) years for his Level 5 felony conviction and ten (10) years for his Level 4

      felony conviction. As noted above, the trial court ordered the sentences to run

      consecutively, resulting in an aggregate sentence of fifteen (15) years.


[7]   As to the nature of Kratzer’s offenses, he attempted to rob a convenience store

      by pointing a firearm at the store clerk. Kratzer, who was a convicted felon,

      was not allowed to possess a firearm. Not only did he possess a firearm, but he

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1885 | March 29, 2019   Page 4 of 5
       used it during the commission of another crime by pointing it at the store clerk

       and demanding money. The fact that Kratzer “fled the store with nothing[]”

       does not lessen the seriousness of his attempted robbery. (Kratzer’s Br. 9).


[8]    When considering the character-of-the-offender prong of our inquiry, one

       relevant consideration is the defendant’s criminal history. Rutherford v. State,

       866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance of a defendant’s

       prior criminal history will vary “based on the gravity, nature and number of

       prior offenses as they relate to the current offense.” Smith v. State, 889 N.E.2d

       261, 263 (Ind. 2008) (internal quotation marks and citation omitted).


[9]    Regarding Kratzer’s character, the trial court noted that he “has four prior adult

       felony convictions[.]” (Tr. 12). Kratzer’s disregard for the property rights of

       others has increased in seriousness and is part of a pattern of ignoring the

       criminal laws of Indiana, which reflects negatively on his character.

       Additionally, the fact that Kratzer was on probation for burglary when he

       attempted the armed robbery of the convenience store demonstrates his choice

       to repeatedly engage in criminal conduct. Kratzer has not persuaded us that the

       nature of the offenses and his character make his sentence inappropriate.

       Therefore, we affirm the sentence imposed by the trial court.


[10]   Affirmed.


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1885 | March 29, 2019   Page 5 of 5
