      MEMORANDUM DECISION
                                                                       Jul 31 2015, 10:02 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
      Leanna Weissmann                                          Gregory F. Zoeller
      Lawrenceburg, Indiana                                     Attorney General of Indiana

                                                                Angela N. Sanchez
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Todd Crane,                                              July 31, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               15A04-1501-CR-9
              v.                                               Appeal from the Dearborn Superior
                                                               Court
      State of Indiana,                                        The Honorable Sally A.
      Appellee-Plaintiff                                       McLaughlin, Judge

                                                               Cause No. 15D02-1403-FD-105




      Najam, Judge.


                                         Statement of the Case
[1]   Todd Crane appeals his sentence after he pleaded guilty, without the benefit of

      a plea bargain, to a number of charges. Crane presents one issue for our review,


      Court of Appeals of Indiana | Memorandum Decision 15A04-1501-CR-9 | July 31, 2015        Page 1 of 7
      namely, whether his sentence is inappropriate in light of the nature of the

      offenses and his character. We affirm Crane’s sentence, but we vacate his

      conviction for criminal mischief, as a Class A misdemeanor, because that

      conviction violates the prohibition against double jeopardy. We, therefore,

      remand to the trial court with instructions to correct its orders.


                                 Facts and Procedural History
[2]   After a “two-day paint[-]huffing bender,” on March 1, 2014, Crane was evicted

      from a local homeless shelter. Appellant’s Br. at 7. With nowhere else to go,

      Crane went to an apartment belonging to his mother, Nancy Smith. Crane left

      after about thirty minutes but returned later that night at about 9:15 p.m. When

      Crane returned, he was high on inhalants, namely spray paint. Smith fed Crane

      dinner, but, after dinner, Crane refused to leave. Instead, Crane went to the

      back of Smith’s apartment where his niece—Smith’s granddaughter, R.R.—was

      asleep and awoke her by shaking her violently. Smith took R.R. from Crane,

      and Smith fled her apartment with R.R. to a neighbor’s apartment where Smith

      called the police. R.R. suffered head pain as a result of Crane shaking her.


[3]   Before the police arrived, Crane ransacked Smith’s apartment and, in the

      process, destroyed “multiple DVR[ boxes], [a] desktop computer, [a] laptop

      computer, eyeglasses, [a] flat screen television, [a] bathroom mirror, [a] cellular

      telephone, [and a] digital camera.” Tr. at 20. The damage to Smith’s property

      exceeded $2,500.




      Court of Appeals of Indiana | Memorandum Decision 15A04-1501-CR-9 | July 31, 2015   Page 2 of 7
[4]   Officers with the Lawrenceburg Police Department responded to Smith’s call.

      When Crane opened the door for the officers, the officers attempted to arrest

      him, but Crane fought the officers and yelled obscenities at them. After several

      minutes and “multiple Taser applications,” the officers managed to handcuff

      Crane and place him in the back of a police car. Appellant’s App. at 6. Once in

      the police car, Crane proceeded to yell and “spit all over the back of [the] car.”

      Id.


[5]   On March 3, 2014, the State charged Crane with (1) battery, as a Class D

      felony; (2) criminal mischief, as a Class D felony; (3) resisting law enforcement,

      as a Class A misdemeanor; (4) criminal trespass, as Class A misdemeanor; (5)

      criminal mischief, as a Class A misdemeanor; and (6) inhaling toxic vapors, a

      Class B misdemeanor. On November 5, 2014, Crane pleaded guilty to all

      charges without the benefit of a plea agreement. At the plea hearing, the State

      informed the trial court that “the Class A, Criminal Mischief [charge] . . . is

      duplicative of” the Class D felony criminal mischief charge. Tr. at 22. The trial

      court stated it would address this issue at Crane’s sentencing hearing.


[6]   The trial court held Crane’s sentencing hearing on December 5, 2014, at the

      conclusion of which the court sentenced Crane to three years for the battery

      conviction; one-and-one-half years for the Class D felony criminal mischief

      conviction; and one year each for the following Class A misdemeanor

      convictions: resisting law enforcement, criminal trespass, and criminal

      mischief. The trial court ordered the two felony sentences to be served

      consecutively and the three misdemeanor convictions to be served concurrent

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      with the two felony sentences for an aggregate sentence of four-and-one-half

      years in the Indiana Department of Correction. The court dismissed the

      inhaling toxic vapors charge but did not explain why it did so.


[7]   In sentencing Crane, the trial court noted that Crane had pleaded guilty to the

      charges against him and that Crane had benefitted from substance abuse

      treatment while awaiting sentencing. However, the court found that these

      considerations were outweighed by Crane’s criminal history. As Crane’s

      presentence investigation report details, Crane “has been charged with forty[-]

      nine [offenses], which include alcohol and drug offenses, theft, [d]riving while

      suspended, Criminal Trespass, Disorderly Conduct, Resisting Arrest, Criminal

      Littering, Assault, and Battery,” and Crane had received—and had violated the

      terms of—probation several times in the past. Appellant’s App. at 123. The

      trial court observed that, despite Crane’s criminal history, Crane “got either no

      time in jail or a few days in jail or a couple months in jail.” Tr. at 42. Thus, the

      court found:

              I think based on [your criminal history], you’re not really a
              candidate for probation. I don’t think probation has the ability to
              monitor you . . . , and I think it’s also a safety factor. . . . [S]o
              what I am going to do based on that[] is find that you would be
              best rehabilitated through incarceration.


      Id. at 43. This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 15A04-1501-CR-9 | July 31, 2015   Page 4 of 7
                                     Discussion and Decision
[8]   Crane contends that his sentence is inappropriate in light of the nature of his

      offenses and his character. Article 7, Sections 4 and 6 of the Indiana

      Constitution “authorize[] independent appellate review and revision of a

      sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind.

      Ct. App. 2007) (alteration in original). This appellate authority is implemented

      through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule

      7(B) requires the appellant to demonstrate that his sentence is inappropriate in

      light of the nature of his offenses and his character. Ind. Appellate Rule 7(B);

      Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess the

      trial court’s recognition or non-recognition of aggravators and mitigators as an

      initial guide to determining whether the sentence imposed was inappropriate.

      Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a

      defendant must persuade the appellate court that his or her sentence has met

      th[e] inappropriateness standard of review.” Roush, 875 N.E.2d at 812

      (alteration original).


[9]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

      sentence to the circumstances presented, and the trial court’s judgment “should

      receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224

      (Ind. 2008). The principal role of appellate review is to attempt to “leaven the

      outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

      end of the day turns on “our sense of the culpability of the defendant, the



      Court of Appeals of Indiana | Memorandum Decision 15A04-1501-CR-9 | July 31, 2015   Page 5 of 7
       severity of the crime, the damage done to others, and myriad other facts that

       come to light in a given case.” Id. at 1224.


[10]   With respect to the nature of his offenses, Crane asserts that his sentence is

       inappropriate because Crane’s “motive” to commit his crimes, intoxication,

       does not evince “the depravity of someone who commits criminal acts for

       vengeance or personal or financial gain.” Appellant’s Br. at 7. But Crane’s

       intoxicated state does not mitigate the gravity of his numerous crimes, which

       supports his four-and-one-half-year sentence. While high on inhalants, Crane

       violently shook his eight-year-old niece, ravaged his mother’s apartment, fought

       responding officers, and spit all over a police car. We cannot say that Crane’s

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


[11]   Regarding his character, Crane asserts that his sentence is inappropriate

       because he is a drug addict who “is capable of redemption and rehabilitation,”

       which he argues cannot be achieved in prison. Id. But the trial court found

       otherwise, and we cannot say that it erred when it did so. As the trial court

       noted, Crane has a significant criminal history, and he has violated the terms of

       his probation on a number of occasions. Despite multiple drug offenses in the

       past, Crane has not treated his addiction. Thus, the trial court did not err when

       it concluded that Crane “would be best rehabilitated through incarceration.”

       Tr. at 43. Crane’s character supports his sentence.


[12]   Although we affirm Crane’s sentence, we vacate his conviction for criminal

       mischief, as a Class A misdemeanor. See Richardson v. State, 717 N.E.2d 32, 54


       Court of Appeals of Indiana | Memorandum Decision 15A04-1501-CR-9 | July 31, 2015   Page 6 of 7
       (Ind. 1999). Here, Crane was convicted of and sentenced for criminal mischief,

       as a Class D felony, and the State conceded to the trial court that the Class A

       misdemeanor charge was a lesser-included charge to the Class D felony. It is

       well settled that a defendant cannot be convicted of both a greater and lesser-

       included offense. See Davenport v. State, 734 N.E.2d 622, 624 (Ind. Ct. App.

       2000), trans. denied; see also Ind. Code § 35-43-1-2. “Where a defendant is found

       guilty of both the greater offense and the lesser-included offense the . . . proper

       procedure is to vacate the conviction of the included offense.” Taflinger v. State,

       698 N.E.2d 325, 327 (Ind. Ct. App. 1998), trans. denied. Therefore, we vacate

       Crane’s conviction for criminal mischief, as a Class A misdemeanor, but we

       note that, because the trial court ordered Crane’s sentences for his misdemeanor

       convictions to be served concurrent with those for his felony convictions, his

       aggregate four-and-one-half-year sentence is undisturbed by this error. We

       remand to the trial court with instructions to correct its orders.


[13]   Affirmed and remanded with instructions.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A04-1501-CR-9 | July 31, 2015   Page 7 of 7
