MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),                                   Mar 07 2017, 9:44 am
this Memorandum Decision shall not be
                                                                              CLERK
regarded as precedent or cited before any                                 Indiana Supreme Court
                                                                             Court of Appeals
court except for the purpose of establishing                                   and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kristin A. Mulholland                                    Curtis T. Hill, Jr.
Appellate Public Defender                                Attorney General of Indiana
Crown Point, Indiana
                                                         Angela N. Sanchez
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Warren Curtis, III,                                      March 7, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A04-1610-CR-2360
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Samuel L. Cappas,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         45G04-1604-F4-13



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A04-1610-CR-2360 | March 7, 2017              Page 1 of 10
                                  Case Summary and Issue
[1]   Warren Curtis, III, pleaded guilty to burglary, a Level 5 felony, and was

      sentenced to six years, with five years executed at the Indiana Department of

      Correction and one year served in community corrections. Curtis appeals his

      sentence, contending it is inappropriate in light of the nature of the offense and

      his character. Concluding Curtis’ sentence is not inappropriate, we affirm.



                              Facts and Procedural History
[2]   The agreed factual basis for Curtis’ plea to burglary reveals that on March 30,

      2016, Curtis was out with a friend and consumed what he thought to be

      cocaine. The pair then found their way to Octavia Wilson’s home. Wilson was

      a friend of Curtis’ girlfriend, Brianna Hodge, and Hodge was at Wilson’s home

      at the time. Without Wilson’s permission, Curtis and his friend entered

      Wilson’s home. Curtis assisted his friend in taking Wilson’s car keys without

      her permission, and the friend left in Wilson’s car, again without her

      permission.1 Based on all that occurred that night, the State charged Curtis



      1
        The State’s statement of facts is more extensive, including information from the probable cause affidavit
      about all the crimes with which Curtis was charged. The affidavit was attached to the pre-sentence
      investigation report (“PSI”) which Curtis affirmed he had reviewed and was true and accurate. Curtis objects
      to the State’s use of “facts” from the probable cause affidavit as support for its argument that his sentence is
      not inappropriate. See Reply Brief of Appellant at 5-6. A probable cause affidavit is a mere accusation
      against the defendant and no evidence whatsoever of his guilt. Anderson v. State, 396 N.E.2d 960, 962 (Ind.
      Ct. App. 1979). It is hard to imagine that a defendant, when he states the PSI is accurate during a sentencing
      hearing after pleading guilty to less than all the charges against him, is intending to concede the truth of any
      additional allegations contained in a probable cause affidavit the probation officer may have chosen to attach
      to the PSI. We therefore do not include any additional information from the probable cause affidavit in our
      recitation of the facts. However, although prior arrests and pending charges not reduced to a conviction do
      not establish the fact that the defendant committed a criminal offense and may not be considered part of the

      Court of Appeals of Indiana | Memorandum Decision 45A04-1610-CR-2360 | March 7, 2017               Page 2 of 10
      with nine crimes under this cause number: burglary, a Level 4 felony;

      residential entry, two counts of strangulation, battery with moderate bodily

      injury, intimidation, and auto theft, all Level 6 felonies; domestic battery, a

      Class A misdemeanor; and criminal mischief, a Class B misdemeanor.2


[3]   On August 17, 2016, the parties appeared in the trial court and filed a written

      plea agreement. As part of the plea agreement, the State amended the charging

      information to add a count of burglary (with intent to commit auto theft), a

      Level 5 felony, and Curtis agreed to plead guilty to that charge in exchange for

      the State dismissing the remaining charges, as well as charges pending in two

      additional cases.3 Sentencing was left to the trial court’s discretion. A factual

      basis for Curtis’ guilty plea was established and the trial court took the plea

      under advisement.


[4]   The parties returned to court on September 13, 2016, for a sentencing hearing.

      At the outset, Curtis’ counsel advised the court:




      defendant’s criminal history, such information may properly be considered in assessing the defendant’s
      character in terms of the risk he may commit another crime. Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005).
      To the extent the fullness of the incident reflects on Curtis’ character, use of information contained in the
      probable cause affidavit is permissible and will be considered accordingly.
      2
        Three weeks after these charges were filed, the State filed an information in a separate cause number (“F5-
      42”) alleging Curtis committed criminal confinement resulting in bodily injury, a Level 5 felony; criminal
      confinement, a Level 6 felony; strangulation, a Level 6 felony; and battery resulting in bodily injury, a Class
      A misdemeanor, all on March 30, 2016, the same date as the original charges. It is unclear exactly what
      these charges stem from.
      3
       These two cases were F5-42, described in footnote 2, supra, and “CM-2,” a charge of resisting law
      enforcement alleged to have occurred on April 5, 2016.

      Court of Appeals of Indiana | Memorandum Decision 45A04-1610-CR-2360 | March 7, 2017                Page 3 of 10
              Miss Hodge was one of the victims. Octavia Wilson was the
              other victim. The factual basis for the plea for burglary was Mr.
              Curtis and his codefendant forcibly entered Miss Octavia
              Wilson’s home, forcibly took her car keys from her, and left with
              her vehicle. Miss Hodge was a named victim in some of the
              other conduct, but not one of the matters pled to.


      Transcript, Volume 2 at 21-22. Hodge then testified on Curtis’ behalf, telling

      the court that although they are not married, she and Curtis have been together

      for several years. They have three children together and are expecting twins.

      She explained that although paternity has never been established and support

      has never been ordered, Curtis works and financially supports her and the

      children and he is “an active father. . . . He have [sic] the children most of the

      time because he will be the one watching them while I am working.” Id. at 23.

      Hodge acknowledged that when Curtis was younger, he was “just a little on the

      wild side,” but said she has seen him mature since having children. Id. at 25.

      Moreover, she testified his behavior on March 30, 2016, was out of character.

      Curtis noted for the court that he has only one prior misdemeanor conviction as

      an adult and advocated for a “sentence in the mitigated range to be suspended

      or served on probation . . . .” Id. at 42.


[5]   The State informed the court that Wilson had been notified of the plea

      agreement and court date but was not in attendance; nonetheless, the State

      noted it had spoken with her several times and she had been “traumatized” by

      Curtis’ crime. Id. at 37. The State argued for a sentence of four years in the

      Department of Correction with no more than one year suspended to probation.


      Court of Appeals of Indiana | Memorandum Decision 45A04-1610-CR-2360 | March 7, 2017   Page 4 of 10
[6]   Curtis’ juvenile history includes arrests in August of 2008; April and August of

      2009; March, May, and September of 2011; and September of 2013, resulting in

      six delinquency adjudications. The allegations of these juvenile cases included

      auto theft, intimidation, burglary, and multiple instances of resisting law

      enforcement. Curtis turned eighteen in January of 2014. As an adult, he has

      one misdemeanor driving conviction, and at the time of sentencing, a pending

      charge for driving while suspended. He was also arrested in April of 2015 for

      resisting law enforcement, but that charge was dismissed as part of the plea

      agreement in this case. In addition, Curtis has committed three rule violations

      while incarcerated awaiting trial.


[7]   In announcing Curtis’ sentence, the trial court found the following aggravating

      circumstances: Curtis’ juvenile history, his disrespect or disdain for authority,

      that he is need of correctional rehabilitative treatment that can only be provided

      by a penal facility, the nature and circumstances of his crime, a pattern of

      violence indicating Curtis is a danger to society, and an “unrelenting” pattern of

      criminal activity for the last eight years. Appendix of the Appellant, Volume

      Two at 29-30. In mitigation, the court found Curtis is twenty years of age, he

      admitted his guilt and saved the time and expense of a trial in exchange for a

      substantial benefit, and has three dependent children who “may suffer undue

      hardship” during his incarceration. Id. at 30. Finding the aggravators

      outweighed the mitigators, the trial court sentenced Curtis to six years, the

      maximum sentence for a Level 5 felony. As to how the sentence was to be

      served, the trial court stated,


      Court of Appeals of Indiana | Memorandum Decision 45A04-1610-CR-2360 | March 7, 2017   Page 5 of 10
              I will suspend – I really didn’t want to suspend any of it, but it’s
              better for you to have the dropdown. I will suspend the last year
              and allow you to serve that on probation. No, I don’t think so. I
              will order you to spend the last year in Community Corrections.
              Court costs will be entered as a matter of record. That is your
              sentence. If you ever come back here again, I am going to reject
              a plea like this and give you the maximum amount I can. . . .
              State moves to dismiss short cause number CM-2 [and] F5-42,
              that is granted. Counts I, II, III, IV, V, VI, VII, IX, X in [this]
              cause [are dismissed]. It should have been more of like fifteen
              years for you at least.


      Id. at 48-49. Curtis now appeals his sentence.



                                Discussion and Decision
                                     I. Standard of Review
[8]   Curtis requests we exercise our authority to revise his sentence, arguing that the

      nature of his offense and his character renders a maximum sentence, which

      should be reserved for the “worst of the worst,” inappropriate. See Brief of

      Appellant at 8 (quoting Hamilton v. State, 955 N.E.2d 723, 727 (Ind. 2011)).

      Even when a trial court has imposed a sentence within statutory guidelines, we

      may independently review a sentence under Indiana Rule of Appellate

      Procedure 7(B), which provides, “The 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.” Under this rule, the burden is on the defendant to

      persuade us his or her sentence is inappropriate. Childress v. State, 848 N.E.2d

      Court of Appeals of Indiana | Memorandum Decision 45A04-1610-CR-2360 | March 7, 2017   Page 6 of 10
      1073, 1080 (Ind. 2006). Though we exercise our independent judgment in

      assessing an inappropriate sentence claim, sentencing is principally a

      discretionary function in which the trial court’s judgment should receive

      considerable deference. Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015). We

      may look to any factors appearing in the record in examining the nature of the

      offense and the character of the offender. Spitler v. State, 908 N.E.2d 694, 696

      (Ind. Ct. App. 2009), trans. denied. “Whether we regard a sentence as

      appropriate at the end of the day turns on our sense of 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.” Hines, 30 N.E.3d at 1225

      (citation omitted).


                                    II. Inappropriate Sentence
[9]   The advisory sentence is the starting point the legislature has selected as the

      appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.

      Curtis pleaded guilty to a Level 5 felony. The sentencing range for a Level 5

      felony is one to six years, with the advisory sentence being three years. Ind.

      Code § 35-50-2-6(b). The trial court sentenced Curtis to six years. He therefore

      received the maximum sentence allowed by statute for his offense. 4




      4
        The State argues that Curtis’ sentence is not inappropriate in part because the facts he admitted at the guilty
      plea hearing would have supported a conviction of Level 4 residential burglary, and therefore, his six-year
      sentence “is the advisory sentence for the highest offense that he admitted committing despite being the
      maximum for the lower Level of non-residential burglary that his deal allowed him to plead guilty to.” Brief
      of Appellee at 13. This argument is not well-taken. At the trial court, the State offered and Curtis accepted a

      Court of Appeals of Indiana | Memorandum Decision 45A04-1610-CR-2360 | March 7, 2017                Page 7 of 10
[10]   First, we consider the nature of Curtis’ offense. When reviewing the nature of

       the offense, a relevant factor is whether there is anything more or less egregious

       about the offense which distinguishes it from a “typical” offense accounted for

       by the advisory sentence set by the legislature. Wells v. State, 2 N.E.3d 123, 131

       (Ind. Ct. App. 2014), trans. denied. Curtis pleaded guilty to breaking and

       entering Wilson’s home with intent to commit auto theft. He also admitted that

       he had taken drugs before the crime, and it appears Wilson was a family friend

       and was home at the time of the entry, which left her traumatized. Given the

       personal nature of the intrusion, the facts of the crime to which Curtis pleaded

       guilty are slightly more egregious than the typical burglary.


[11]   Next, we consider Curtis’ character. Curtis contends his actions on the night in

       question “were not in keeping with his character.” Br. of Appellant at 8. He

       points to his active presence in his children’s lives, his financial support of them

       even though under no court order to do so, his remorse for his actions, and his

       single misdemeanor conviction as an adult. When considering the character of

       the offender, one relevant factor is the defendant’s criminal history. Wells, 2

       N.E.3d at 131. As Curtis notes, he has only one adult conviction, a




       plea agreement to a Level 5 felony. Whatever the reasons for that offer, Curtis is entitled to the benefit of the
       bargain he and the State made, and we will not weigh his sentence in the manner the State suggests.
       In a similar vein, Curtis argues his sentence is inappropriate in part because it appears from the “overall
       tenor” of the trial court’s sentencing statement that it likely gave Curtis the maximum sentence for “improper
       reasons[,]” including its consideration of the allegations behind all the charges in the current case, even those
       which were to be dismissed. Brief of Appellant at 9-10. It is true that a trial court should not accept a plea
       agreement and then punish the defendant at sentencing for the perceived leniency granted to him by the
       State, Nybo v. State, 799 N.E.2d 1146, 1152 (Ind. Ct. App. 2003); however, we are independently reviewing
       Curtis’ sentence rather than assessing the trial court’s exercise of its discretion.

       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-CR-2360 | March 7, 2017                 Page 8 of 10
       misdemeanor driving offense. However, he is only twenty years old. As a

       juvenile, Curtis had numerous run-ins with the law, including adjudications for

       auto theft and burglary, the same offenses implicated by this case. See Harris v.

       State, 897 N.E.2d 927, 930 (Ind. 2008) (noting the significance of a defendant’s

       criminal history varies based upon the gravity, nature, and number of prior

       offenses in relation to the current offense). The trial court correctly observed

       that despite his limited adult criminal history, Curtis has been regularly

       committing crimes for the past eight years, including the use of an illegal drug

       on the night in question. Further, although Curtis would have us believe this

       crime was an isolated incident, since it occurred, he has been arrested for

       resisting law enforcement and has been written up for several rule violations

       while in jail. As for other aspects of Curtis’ character, we note that although

       Hodge indicated he is a good father and financially supports the family, he has

       never established paternity of the children. Also, Hodge was present on the

       night Curtis committed this offense and was the victim of one or more of the

       offenses that were dismissed as part of the plea bargain.


[12]   “The question under Appellate Rule 7(B) is not whether another sentence is

       more appropriate; rather, the question is whether the sentence imposed is

       inappropriate.” Helsley v. State, 43 N.E.3d 225, 228 (Ind. 2015). Deference to

       the trial court’s sentencing decision “should prevail unless overcome by

       compelling evidence portraying in a positive light the nature of the offense (such

       as accompanied by restraint, regard, and lack of brutality) and the defendant’s

       character (such as substantial virtuous traits or persistent examples of good


       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-CR-2360 | March 7, 2017   Page 9 of 10
       character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Curtis has not

       convinced us that the nature of his offense was so innocuous or that his

       character is so virtuous that a six-year sentence is inappropriate.



                                               Conclusion
[13]   Based on our independent review of the nature of Curtis’ offense and his

       character, we hold his six-year sentence is not inappropriate. The judgment of

       the trial court is affirmed.


[14]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-CR-2360 | March 7, 2017   Page 10 of 10
