MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                Sep 24 2015, 9:05 am
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
Bruce W. Graham                                          Gregory F. Zoeller
Lafayette, Indiana                                       Attorney General of Indiana

                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Keith Rich,                                              September 24, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A04-1502-CR-49
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Steven P. Meyer,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause Nos.
                                                         79D02-1406-FB-13
                                                         79D02-0608-FB-54



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A04-1502-CR-49| September 24, 2015   Page 1 of 8
                                             Case Summary
[1]   In this consolidated appeal, Keith Rich (“Rich”) appeals the sentence imposed

      following his plea of guilty to Arson 1 and Burglary, 2 Class B felonies, and the

      probation revocation sanction requiring that he serve four previously-suspended

      years of a sentence for a prior burglary conviction. We affirm.



                                                      Issues
[2]   Rich presents three issues for review:

                 I.           Whether the trial court abused its sentencing discretion by
                              recognizing an improper aggravator when imposing the
                              aggregate sentence for Arson and Burglary;


                 II.          Whether the twenty-year aggregate sentence for Arson and
                              Burglary, consisting of concurrent advisory sentences, one
                              enhanced by ten years due to Rich’s status as a habitual
                              offender, is inappropriate; and


                 III.         Whether the trial court erred when imposing a sanction for
                              Rich’s probation violation.


                                  Facts and Procedural History



      1
       Ind. Code § 35-43-1-1. The Indiana Criminal Code has been substantially revised, effective July 1, 2014.
      At all times, we refer to the version of applicable statutes in effect at the time of Rich’s crimes.
      2
          I.C. § 35-43-2-1.


      Court of Appeals of Indiana | Memorandum Decision 79A04-1502-CR-49| September 24, 2015           Page 2 of 8
[3]   On June 12, 2014, Rich forced open the front door of a Fort Wayne residence

      and took items of personal property. He then set a fire inside the residence. On

      June 18, 2014, the State charged Rich with Arson, Burglary, and Theft. 3


[4]   On June 24, 2014, the State filed a petition to revoke Rich’s probation in

      another burglary case, Cause No. 79D02-0608-FB-54 (“FB-54”). Rich and the

      State entered into a plea agreement whereby Rich would plead guilty to

      Burglary and Arson, and he would admit to being a habitual offender and to

      violating his probation in FB-54. The agreement capped Rich’s aggregate

      sentence at twenty-six years, with a minimum of eighteen years, all executed.

      The trial court accepted the plea agreement and dismissed the Theft charge.


[5]   In a consolidated sentencing and probation revocation hearing conducted on

      January 7, 2015, the trial court imposed upon Rich a ten-year sentence for

      Arson, enhanced by ten years due to Rich’s status as a habitual offender. Rich

      was given a concurrent ten-year sentence for Burglary. In FB-54, Rich’s

      probation was revoked and he was ordered to serve as executed time four years

      previously suspended to probation. This appeal ensued.



                                 Discussion and Decision




      3
          I.C. § 35-43-4-2.


      Court of Appeals of Indiana | Memorandum Decision 79A04-1502-CR-49| September 24, 2015   Page 3 of 8
                               Abuse of Discretion - Aggravator
[6]   Indiana Code Section 35-50-2-5 provides that a person convicted of a Class B

      felony faces a sentencing range of six to twenty years, with the advisory sentence

      being ten years. Rich received the advisory sentence for each of his Class B felony

      convictions. The Arson sentence was enhanced by ten years, due to Rich’s status

      as a habitual offender. I.C. § 35-50-2-8. The aggregate twenty-year sentence was

      within the parameters of the plea agreement, as well as the applicable statutory

      range.


[7]   “So long as the sentence is within the statutory range, it is subject to review

      only for abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

      2007), clarified on other grounds, 875 N.E.2d 218 (Ind. 2007). This includes the

      finding of an aggravating circumstance and the omission to find a proffered

      mitigating circumstance. Id. at 490-91. When imposing a sentence for a felony,

      the trial court must enter “a sentencing statement that includes a reasonably

      detailed recitation of its reasons for imposing a particular sentence.” Id. at 491.


[8]   The trial court’s reasons must be supported by the record and must not be

      improper as a matter of law. Id. However, a trial court’s sentencing order may

      no longer be challenged as reflecting an improper weighing of sentencing factors.

      Id. A trial court abuses its discretion if its reasons for imposing a particular

      sentence are clearly against the logic and effect of the facts and circumstances

      before the court, or the reasonable, probable, and actual deductions to be drawn

      therefrom. Hollin v. State, 877 N.E.2d 462, 464 (Ind. 2007).


      Court of Appeals of Indiana | Memorandum Decision 79A04-1502-CR-49| September 24, 2015   Page 4 of 8
[9]    Here, the trial court found Rich’s youth, guilty plea, offer of restitution, and

       remorse to be mitigating factors. With respect to aggravators, the trial court

       stated:

                 The aggravating factors are the Defendant’s criminal history
                 including prior burglary conviction. The fact that he was on
                 probation and on bond when this crime was committed and that
                 the Defendant attempted to conceal his crime by setting the fire
                 that was involved in the arson.


       (Tr. at 23.) According to Rich, the trial court abused its sentencing discretion

       by considering a material element of the charged crime of Arson as an

       aggravator.


[10]   The State responds that we need not disregard the challenged aggravator,

       arguing that the trial court simply recognized Rich’s motive for Arson, his

       desire to cover up another crime. Generally, the nature and circumstances of a

       crime may properly be considered to be an aggravator. McCann v. State, 749

       N.E.2d 1116, 1120 (Ind. 2001). Nonetheless, even if a trial court has relied

       upon an improper factor as an aggravating circumstance, the sentence may be

       upheld so long as other valid aggravating circumstances exist. Bacher v. State,

       722 N.E.2d 799, 803 (Ind. 2000). Here, other valid aggravators exist. Rich,

       who has a criminal history and violated his probation, received an advisory

       sentence prior to enhancement. He has not demonstrated that the trial court

       abused its sentencing discretion.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1502-CR-49| September 24, 2015   Page 5 of 8
                                    Appropriateness of Sentence
[11]   Under Indiana Appellate Rule 7(B), this “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 performing our review, we assess “the

       culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other factors that come to light in a given case.” Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of such review is

       to attempt to leaven the outliers. Id. at 1225. A defendant ‘“must persuade the

       appellate court that his or her sentence has met th[e] inappropriateness standard

       of review.”’ Anglemyer, 868 N.E.2d at 494 (quoting Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006)).


[12]   As for the nature of the offenses, Rich broke into a residence and took property

       from inside the residence. In an attempt to cover up the Burglary, Rich set a

       fire. The fire caused significant structural damage.


[13]   As to the character of the offender, Rich has prior felony convictions for

       Intimidation and Burglary, and misdemeanor convictions for Possession of

       Marijuana and Operating a Vehicle Without a License. He was on probation at

       the time he committed the present offenses.


[14]   Having reviewed the matter, we conclude that the trial court did not impose an

       inappropriate sentence under Appellate Rule 7(B), and the sentence does not



       Court of Appeals of Indiana | Memorandum Decision 79A04-1502-CR-49| September 24, 2015   Page 6 of 8
       warrant appellate revision. Accordingly, we decline to disturb the sentence

       imposed by the trial court.


                                Sanction for Probation Violation
[15]   Finally, Rich claims that the order reinstating four years of his sentence in FB-

       54 is excessive in light of the evidence of mitigating circumstances.


[16]   A defendant is not entitled to serve a sentence in either probation or a

       community corrections program. Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct.

       App. 2009). Rather, such placement is a “matter of grace” and a “conditional

       liberty that is a favor, not a right.” Million v. State, 646 N.E.2d 998, 1002 (Ind.

       Ct. App. 1995).


[17]   Probation may be revoked for violation of a probation condition. Runyon v.

       State, 939 N.E.2d 613, 616 (Ind. 2010). Indiana Code Section 35-38-2-1(b)

       provides in relevant part: “[i]f the person commits an additional crime, the

       court may revoke the probation.” The State must prove the violation by a

       preponderance of the evidence. Runyon, 939 N.E.2d at 616. If a defendant

       violates the conditions of his probation, the court may impose the following

       sanctions after conducting a hearing:


               (1) Continue the person on probation, with or without modifying or
                   enlarging the conditions.
               (2) Extend the person’s probationary period for not more than one
                   (1) year beyond the original probationary period.
               (3) Order execution of all or part of the sentence that was suspended
                   at the time of initial sentencing.



       Court of Appeals of Indiana | Memorandum Decision 79A04-1502-CR-49| September 24, 2015   Page 7 of 8
       I. C. § 35-38-2-3(h). Rich admitted that he violated his probation by

       committing new crimes. The trial court was authorized by statute to impose the

       sanction selected.


[18]   Probation serves as an alternative to commitment to the Department of

       Correction, at the sole discretion of the trial court. Monroe, 899 N.E.2d at 688.

       Accordingly, we do not undertake to “revise” a reinstated sentence even where

       mitigating circumstances exist. In the context of probation revocation, our

       supreme court has determined that the Indiana Appellate Rule 7(B) standard for

       revision of inappropriate sentences “is not the correct standard to apply when

       reviewing a trial court’s actions” because the action “is not a criminal sentence

       as contemplated by the rule.” Jones v. State, 885 N.E.2d 1286, 1290 (Ind. 2008).

       Rich has not demonstrated error in the trial court’s imposition of the maximum

       sanction for Rich’s probation violation.



                                               Conclusion
[19]   Rich has not shown that the trial court abused its sentencing discretion. The

       aggregate sentence imposed for Arson and Burglary is not inappropriate. We

       find no error in the trial court’s imposition of a probation revocation sanction

       authorized by statute.


[20]   Affirmed.


       Baker, J., and Mathias, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 79A04-1502-CR-49| September 24, 2015   Page 8 of 8
