      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                     FILED
      this Memorandum Decision shall not be                                 May 21 2020, 9:15 am
      regarded as precedent or cited before any
      court except for the purpose of establishing                               CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
      the defense of res judicata, collateral                                     and Tax Court

      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
      Timothy P. Broden                                       Tyler G. Banks
      Lafayette, Indiana                                      Supervising Deputy Attorney
                                                              General
                                                              Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Tony Curtis Lester, Sr.,                                May 21, 2020
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              19A-CR-2532
              v.                                              Appeal from the Tippecanoe
                                                              Superior Court
      State of Indiana,                                       The Honorable Steven P. Meyer,
      Appellee-Plaintiff                                      Judge
                                                              Trial Court Cause No.
                                                              79D02-1905-F5-67



      Altice, Judge.


                                               Case Summary


[1]   Tony Curtis Lester, Sr. pled guilty to burglary as a Level 5 felony. The trial

      court sentenced him to the advisory term of three years executed in the Indiana
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2532 | May 21, 2020                   Page 1 of 7
      Department of Correction (DOC). On appeal, Lester argues that the fully

      executed nature of his sentence is inappropriate in light of the nature of the

      offense and his character.


[2]   We affirm.


                                       Facts & Procedural History


[3]   Late in the evening on December 6, 2018, Lester used a screwdriver to break

      into the locked garage of Jeffery and Rebecca Wooten. With his son’s help,

      Lester removed over $750 worth of property from the garage and loaded it into

      his vehicle. An officer responded after a neighbor called the local sheriff’s

      department. The officer observed Lester’s vehicle being driven away from the

      scene with its headlights and taillights turned off. Following a traffic stop,

      Lester and his son gave conflicting stories to the officer. Thereafter, Jeffery

      Wooten identified the stolen property found in Lester’s vehicle and noted

      damage to his walk-in garage door.


[4]   On May 1, 2019, the State charged Lester with Level 5 felony burglary and

      Level 6 felony theft. While out on conditional bond, Lester tested positive for

      cocaine and missed three required drug screens. On August 23, 2019, following

      a hearing, the trial court revoked Lester’s bond. Thereafter, on September 27,

      2019, Lester entered into a plea agreement with the State, pursuant to which he

      pled guilty to burglary and the theft charge was dismissed. Sentencing was left

      to the trial court’s discretion.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2532 | May 21, 2020   Page 2 of 7
[5]   On October 24, 2019, the trial court accepted Lester’s guilty plea and held the

      sentencing hearing. The trial court found as mitigating factors: “Defendant

      pled guilty and accepted responsibility; he has significant mental health issues;

      he has physical health issues; he has shown remorse for his actions; long term

      incarceration would cause a hardship on his Wife; and he has strong family

      support.” Appendix at 15. As aggravating factors, the court found:

      “Defendant’s criminal history; he has had six Petitions to Revoke Probation

      filed against him with 3 having been found true; he has had 3 Motions to

      Commit filed against him with all being found true; he violated pre-trial

      conditions in this case; and prior attempts at rehabilitation have failed.” Id. at

      16. The trial court determined that the mitigating and aggravating factors were

      in balance and sentenced Lester to the advisory sentence of three years, all

      executed in the DOC. Lester now appeals. Additional information will be

      provided below as needed.


                                          Discussion & Decision


[6]   Lester contends that his sentence is inappropriate. We may revise a sentence

      authorized by statute if, after due consideration of the trial court’s decision, we

      find the sentence inappropriate in light of the nature of the offense and the

      character of the offender. Ind. Appellate Rule 7(B). 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, 1224 (Ind. 2008).

      The principal role of appellate review is to attempt to “leaven the outliers.” Id.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2532 | May 21, 2020   Page 3 of 7
      at 1225. Whether we regard a sentence as inappropriate at the end of the day

      turns on “our sense of 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.” Id. at 1224. Deference to the trial court “prevail[s] 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

      character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The burden is

      on the defendant to persuade us that his sentence is inappropriate. Childress v.

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


[7]   Lester received the advisory sentence of three years for his Level 5 felony. See

      Ind. Code § 35-50-2-6(b) (sentencing range for a Level 5 felony is between one

      and six years, with the advisory sentence being three years). This sentence is

      the starting point the legislature has selected as an appropriate sentence for the

      crime committed. Vega v. State, 119 N.E.3d 193, 203 (Ind. Ct. App. 2019).


[8]   On appeal, Lester does not challenge the length of his sentence. Instead, he

      argues only that it was inappropriate for the trial court to impose a fully

      executed sentence. He asks that we revise his sentence to a term of three years

      with two years executed in the DOC and one year suspended to probation.


[9]   “The place that a sentence is to be served is an appropriate focus for application

      of our review and revise authority.” Biddinger v. State, 868 N.E.2d 407, 414

      (Ind. 2007). “Nonetheless, we note that it will be quite difficult for a defendant


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2532 | May 21, 2020   Page 4 of 7
       to prevail on a claim that the placement of his or her sentence is inappropriate.”

       Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct. App. 2007); see also King v. State,

       894 N.E.2d 265, 267 (Ind. Ct. App. 2008). This is because the question under

       Rule 7(B) is not whether another sentence is more appropriate; the question is

       whether the sentence imposed is inappropriate. King, 894 N.E.2d at 268. “A

       defendant challenging the placement of a sentence must convince us that the

       given placement is itself inappropriate.” Id.


[10]   With regard to the nature of the offense, Lester asserts that “his conduct on the

       date in question amounted to no more than that necessary to establish the

       statutory elements of the offense of burglary as a Level 5 felony.” Appellant’s

       Brief at 7. We agree, as did the trial court. Indeed, the trial court observed that

       if sentencing was just based on the nature of the offense, “we’d be probably

       talking about something completely different[.]” Transcript at 52.


[11]   Lester’s poor character is reflected in his significant criminal history with two

       felony convictions (1992 grand larceny in Virginia and 2015 criminal

       recklessness with a deadly weapon in Indiana) and seven misdemeanor

       convictions (1995 public intoxication, 1999 driving while suspended, 2002 and

       2010 operating while intoxicated, 2006 and 2009 resisting law enforcement, and

       2013 conversion). In the past, Lester has received suspended sentences,

       community corrections, and substance abuse treatment following his

       convictions. Despite this leniency, Lester has continued to commit crimes and

       use illegal drugs, has violated probation multiple times, and has been

       committed to jail three times after violating community corrections while

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2532 | May 21, 2020   Page 5 of 7
       serving his recent felony sentence. The trial court detailed its own extensive

       history with Lester since 2015, as well as the revocation of bond in the instant

       case.


[12]   The court recognized Lester’s difficult childhood, limited education, poor

       mental and physical health, and the tragic losses of his grandchild in 2014 and

       cousin during the pendency of this case. The court explained:


               So this is what’s confounding to me. It’s really – it’s a very sad
               story, and I don’t know that you’re – you need to go to prison….
               [Y]ou’re not as dangerous as some of the other people I’ve sent to
               prison, but then again, your record indicates that nothing else
               works for you, and part of my thinking is if I were to give you
               community corrections or give you to probation, we’re just going
               to see you back. We’re going to see you back every two to three
               months as we have since 2015.


               I know you’re shaking your head no, that’s not going to happen,
               but, inevitably, that is what’s happened since 2015. I see you
               back every two, three, four, or five months because you don’t
               want to do what you’re told, and I just wonder if we give you any
               more community corrections or probation if we’re just, honestly,
               setting you up for failure, and then costing more time and energy
               in the system ….


       Id.


[13]   Ultimately, after thoroughly discussing the aggravating and mitigating factors,

       the trial court imposed a lesser number of years than recommended by the State

       and the defense but ordered the entire sentence to be executed in the DOC.

       Based on Lester’s lengthy history and many failed attempts at rehabilitation

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2532 | May 21, 2020   Page 6 of 7
       through less severe sentences, we cannot say that the executed advisory

       sentence imposed by the trial court was inappropriate here.


[14]   Judgment affirmed.


       Bailey, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2532 | May 21, 2020   Page 7 of 7
