MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any
                                                                  Feb 21 2017, 9:58 am
court except for the purpose of establishing
the defense of res judicata, collateral                                CLERK
                                                                   Indiana Supreme Court
estoppel, or the law of the case.                                     Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr.                                   Curtis T. Hill, Jr.
Deputy Public Defender                                   Attorney General of Indiana
Fort Wayne, Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brandon M. Gilbert,                                      February 21, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1608-CR-1794
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         02D05-1503-F5-56



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1608-CR-1794 | February 21, 2017   Page 1 of 5
[1]   Brandon Gilbert appeals the sentence he received after pleading guilty to

      Corrupt Business Influence,1 a Level 5 Felony. Gilbert argues that the sentence

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

      that the sentence is not inappropriate, we affirm.


                                                     Facts
[2]   Between July 21 and September 17, 2014, Gilbert and a number of other

      individuals came up with a plan to enter several different Lowes Home

      Improvement Stores, alternating days with one another. They would pick up

      items off of the shelf, take the unpaid-for merchandise to the return counter,

      return the items for a store gift card, and then pawn the gift cards at a pawn

      store. Gilbert bought heroin with the money he received from the pawn store.


[3]   On March 3, 2015, the State charged Gilbert with Level 5 felony corrupt

      business influence, and on May 18, 2015, Gilbert pleaded guilty as charged.

      The trial court placed Gilbert into the drug court diversion program and

      sentencing was deferred to afford him an opportunity to complete the program

      successfully.


[4]   Gilbert completed a transitional living program at the Shepard House and was

      then placed at the Thirteen Step House. In March and April, Gilbert had four

      dilute drug screens. On April 1 and May 11, 2016, Gilbert tested positive for




      1
          Ind. Code § 35-45-6-2.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1608-CR-1794 | February 21, 2017   Page 2 of 5
      morphine. He missed eight drug screens between March and May. On May 2,

      Gilbert filled a prescription for hydrocodone. On May 12, 2016, Gilbert failed

      to return to the Thirteen Step House and was unsuccessfully discharged from

      the program. As a result, the State filed a petition to terminate Gilbert’s

      participation in the drug court diversion program. Gilbert admitted to the

      allegations in the petition. The trial court revoked Gilbert’s placement in the

      drug court diversion program and, on July 21, 2016, sentenced Gilbert to four

      years imprisonment. Gilbert now appeals.


                                   Discussion and Decision
[5]   Gilbert’s sole argument on appeal is that the sentence imposed by the trial court

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

      Appellate Rule 7(B) provides that this Court may revise a sentence if it is

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

      offender. We must “conduct [this] 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’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)

      (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal

      citations omitted).


[6]   For a Level 5 felony conviction, Gilbert faced a sentence of one to six years,

      with an advisory term of three years imprisonment. Ind. Code § 35-50-2-6(b).

      Gilbert received a four-year term.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1608-CR-1794 | February 21, 2017   Page 3 of 5
[7]   With respect to the nature of the offense, Gilbert and his cohorts methodically

      planned and committed acts of theft at Lowes stores on many occasions over a

      three-month period. Gilbert and his counterparts operated strategically,

      alternating the dates on which and the stores at which they committed these

      offenses. The reason Gilbert committed this offense was to fund his drug habit.


[8]   With respect to Gilbert’s character, he is thirty-two years old and has had

      regular contact with the criminal justice system since the age of seventeen. He

      has seven prior misdemeanor convictions and two prior felony convictions. He

      has had the benefit of probation, short jail sentences, and the drug court

      diversion program. He has had a suspended sentence revoked once and

      probation revoked once. He has completed substance abuse treatment twice—

      in 2004 and in 2016.


[9]   We acknowledge that Gilbert is battling a serious drug and alcohol dependency

      problem and has been for much of his life. We also acknowledge the uphill

      battle that addicts face on a daily basis. But Gilbert has been afforded multiple

      chances by our criminal justice system to reform his behavior and treat his

      substance abuse issues. He has been either unwilling or unable to take

      advantage of those opportunities. Under these circumstances, we find that the

      four-year sentence imposed by the trial court is not inappropriate in light of the

      nature of the offense and Gilbert’s character.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1608-CR-1794 | February 21, 2017   Page 4 of 5
[10]   The judgment of the trial court is affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1608-CR-1794 | February 21, 2017   Page 5 of 5
