MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D), this
                                                                     Aug 24 2017, 5:45 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                        CLERK
purpose of establishing the defense of res judicata,                  Indiana Supreme Court
                                                                         Court of Appeals
collateral estoppel, or the law of the case.                               and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                     Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                   Attorney General of Indiana
Brooklyn, Indiana
                                                          Larry D. Allen
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Exie M. Myles,                                           August 24, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1702-CR-299
        v.                                               Appeal from the Vigo Superior
                                                         Court.
                                                         The Honorable David R. Bolk,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         84D03-1605-F2-1295




Darden, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-299 | August 24, 2017         Page 1 of 9
                                          Statement of the Case
[1]   Exie M. Myles appeals her sixteen-year sentence upon her conviction of
                                                                                 1
      robbery resulting in serious bodily injury, a Level 2 felony. We affirm.


                                                     Issue
[2]   Myles presents one issue for our review, which we restate as: whether her

      sentence is inappropriate in light of the nature of her offense and her character.


                                   Facts and Procedural History
[3]   In April 2016, Myles and her boyfriend, Edward Rosa, stole a purse from

      eighty-year-old Wanda Lowe in a Kroger parking lot as Lowe and her husband

      were loading their groceries into their car. A few days later, Myles and Rosa

      stole the purse of Sandra Morgan, a seventy-three-year-old grandmother who

      was out shopping with her eleven-year-old granddaughter. Myles and Rosa

      drove by Morgan, grabbed her purse, and attempted to drive off with it.

      However, Morgan refused to immediately release her purse and was dragged

      alongside the car, at which point she let go of her purse. As a result of this

      incident, Morgan suffered three broken bones in her back. Shortly after the

      robbery, Myles used Morgan’s credit card.




      1
          Ind. Code § 35-42-5-1 (2014).


      Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-299 | August 24, 2017   Page 2 of 9
[4]   In addition to the instant robbery charge, Myles was also charged with theft, a
                            2                            3                                        4
      Level 6 felony; fraud, a Level 6 felony; and theft, a Class A misdemeanor.

      Pursuant to a plea agreement, Myles pleaded guilty to the charge of robbery

      resulting in serious bodily injury. The parties were free to argue sentencing to

      the court, with the agreement that Myles’ maximum sentence would not exceed

      sixteen years. The trial court sentenced Myles to sixteen years with twelve

      years executed and the remaining four years suspended to probation. She now

      appeals that sentence.


                                          Discussion and Decision
[5]   Myles contends that her sentence is inappropriate. Indiana Appellate Rule 7(B)

      provides that we may revise a sentence authorized by statute if, after due

      consideration of the trial court’s decision, we determine that the sentence is

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

      offender. Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014).

      Sentencing is primarily a discretionary function in which the trial court’s

      judgment should receive considerable deference. Stephenson v. State, 29 N.E.3d

      111, 122 (Ind. 2015). Such deference should prevail unless overcome by

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

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



      2
          Ind. Code § 35-43-4-2 (2014).
      3
          Ind. Code § 35-43-5-4 (2014).
      4
          Ind. Code § 35-43-4-2.


      Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-299 | August 24, 2017   Page 3 of 9
      (such as substantial virtuous traits or persistent examples of good character). Id.

      The defendant bears the burden of persuading the appellate court that his or her

      sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[6]   To assess whether the sentence is inappropriate, we look first to the statutory

      range established for the class of the offense. Here the offense is a Level 2

      felony, for which the advisory sentence is seventeen and one-half years, with a

      minimum sentence of ten and a maximum sentence of thirty. Ind. Code § 35-

      50-2-4.5 (2014). Myles’ plea agreement capped her sentence at sixteen years,

      which is below the advisory sentence for a Level 2 felony.


[7]   Next, we look to the nature of the offense and the character of the offender. As

      to the nature of the current offense, we observe that Myles, the owner of the

      car, participated in the robbery of Morgan, a seventy-three-year-old woman

      who was dragged alongside Myles’ car because she refused to release her purse

      to criminals. Fearing for her life, Morgan released her purse and suffered a

      broken back – in three places – and had to endure back surgery, as well as the

      extreme pain and suffering this injury caused. Moreover, Morgan’s eleven-

      year-old granddaughter looked on horrified as her grandmother was dragged,

      robbed, and seriously injured.


[8]   This incident has had an emotional and psychological impact on both Morgan

      and her granddaughter. Morgan has withdrawn from activities because she is

      afraid to go anywhere alone, and her granddaughter begs her not to leave the

      house because she is terrified of something happening to herself or Morgan.


      Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-299 | August 24, 2017   Page 4 of 9
       Additionally, within the contents of Morgan’s purse, among other valuables

       that were never recovered, was her cell phone that contained numerous pictures

       of her son who had died from cancer.


[9]    At sentencing, the judge summarized this offense as, “here you have two (2)

       people driving around Vigo County, [Myles is] high on heroin, K-Two (K-2),

       prescription meds, who, it’s fairly clear, were targeting random people, elderly

       people – it’s everyone’s worst fear – law-abiding citizens, it’s their worst fear is

       to have someone who’s high driving around the community looking to

       victimize, you know, someone looking to victimize those people. I mean,

       really gets – and not only that, they end up, this person ends up with a, with a

       broken back, it happens in front of a child, she’s [seventy-three] years of age. I

       mean, this is not – well this is just bad. There’s no other way to – there’s just no

       other way to characterize it. None.” Tr. Vol. III, pp. 27-28. The judge found

       and assigned significant weight to the statutory aggravator that the harm,

       injury, loss and damage suffered by Morgan was significant and greater than

       the elements necessary to prove the commission of the offense. He additionally

       found as aggravators that Morgan was over the age of sixty-five at the time of

       the crime and that the crime was committed in the presence of Morgan’s

       eleven-year-old granddaughter.


[10]   With regard to her character, Myles discusses several factors in her brief that

       she argues favor a shorter sentence. She refers to Rosa as the “principal

       offender” and suggests that her allegedly limited involvement in the robbery

       warrants a lighter sentence. Appellant’s Br. p. 8. We observe that this Court is

       Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-299 | August 24, 2017   Page 5 of 9
       not compelled to find a sentence inappropriate simply because the weight of the

       evidence suggests that a defendant’s role was that of an accomplice and not a

       principal. Indeed, the general standard for reviewing a sentence imposed on an

       accomplice is the same as it is for principals; thus, there is no benefit accorded

       to an individual by virtue of her having been charged as an accomplice. Johnson

       v. State, 687 N.E.2d 345, 349 (Ind. 1997). Irrespective of whether Myles

       actually grabbed Morgan’s purse, she participated in the robbery. She was the

       owner of and provided the car that was used in the robbery, and it is undisputed

       that she used Morgan’s stolen credit card after the robbery, apparently to her

       benefit.


[11]   Myles also alleges that Rosa was abusive to her and had threatened her family.

       However, no evidence was presented connecting Rosa’s alleged abuse to Myles’

       commission of this crime.


[12]   In addition, Myles lists her medical issues as depression, obsessive compulsive

       disorder, schizophrenia, bipolar disorder, and brain tumors. Yet, no evidence

       was presented linking Myles’ crimes and her disorders. See Corralez v. State, 815

       N.E.2d 1023, 1026 (Ind. Ct. App. 2004) (stating there must be a nexus between

       defendant’s mental health and crime in question in order for mental history to

       be considered a mitigating factor). Moreover, there was no evidence that

       Myles’ medical conditions could not be properly treated in prison. See

       Henderson v. State, 848 N.E.2d 341, 344-45 (Ind. Ct. App. 2006) (finding no

       error in trial court’s refusal to consider defendant’s poor health as mitigator



       Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-299 | August 24, 2017   Page 6 of 9
       because she failed to present evidence that her multiple health conditions would

       be untreatable during incarceration).


[13]   Next, Myles, who was thirty-two years of age at the time she committed these

       crimes, points out that when she was in school she was diagnosed with a

       learning disability and that she only completed the eighth grade. Further, she

       states that her father’s death when she was thirteen had an adverse impact on

       her. Nevertheless, evidence of a difficult childhood warrants little, if any,

       mitigating weight. Coleman v. State, 741 N.E.2d 697, 700 (Ind. 2000).


[14]   At sentencing, Myles testified that she began using drugs at the age of twelve.

       She started with marijuana and progressed to acid and then methamphetamine.

       Although she has previously completed treatment through a drug court
                                              5
       program, she was high on K2 and heroin at the time of this offense. See

       Caraway v. State, 959 N.E.2d 847, 852 (Ind. Ct. App. 2011) (where defendant is

       aware of chemical dependency and chooses not to seek help, failure to do so

       can be considered an aggravating factor), trans. denied.


[15]   Myles also notes that she accepted responsibility for her actions. A guilty plea

       can show that a defendant accepts responsibility for her actions. Haggard v.

       State, 771 N.E.2d 668, 677 (Ind. Ct. App. 2002), trans. denied. And, generally, a




       5
        K2, also known as Spice, is a mix of herbs and manmade chemicals with mind-altering effects. It is often
       called “synthetic marijuana” or “fake weed” because some of the chemicals in it are similar to ones in
       marijuana, but its effects are sometimes very different from marijuana and frequently much stronger. NIDA
       FOR TEENS, https://teens.drugabuse.gov/drug-facts/spice (last visited August 14, 2017).


       Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-299 | August 24, 2017          Page 7 of 9
       guilty plea saves judicial time and resources, as well as sparing the victim’s

       family the trauma of a trial. Sensback v. State, 720 N.E.2d 1160, 1164 (Ind.

       1999). Nevertheless, a plea of guilty is not automatically a significant

       mitigating factor that must be credited by the trial court; rather, the

       determination is fact-sensitive. Trueblood v. State, 715 N.E.2d 1242, 1257 (Ind.

       1999). “For instance, a guilty plea does not rise to the level of significant

       mitigation where the defendant has received a substantial benefit from the plea

       or where the evidence against him is such that the decision to plead guilty is

       merely a pragmatic one.” Wells v. State, 836 N.E.2d 475, 479 (Ind. Ct. App.

       2005), trans. denied. Here, the trial court assigned mitigating weight to this

       factor, but we note that Myles received a substantial benefit in exchange for her

       plea of guilty in that she had the opportunity to argue for a lesser sentence that

       had already been capped at sixteen years – which is one-and-a-half years below

       the advisory sentence for a Level 2 felony. In addition, other felony charges

       were dismissed by the State. Further, the State had significant evidence against

       her in the form of surveillance video and witness testimony. Thus, it could be

       said that Myles’ decision to plead guilty was a pragmatic one for which she

       received a substantial benefit.


[16]   Finally, Myles points to her minimal criminal history as a mitigating factor.

       The trial court found her lack of “significant[,] serious criminal history” to be a

       mitigating factor. Tr. Vol. III, p. 26. While we acknowledge this to be the case,

       we also observe that in 2002 Myles was charged with felony possession of a

       controlled substance, which was dismissed after she completed treatment


       Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-299 | August 24, 2017   Page 8 of 9
       through a drug court program. However, the program apparently did nothing

       to deter her from continuing her criminal behavior and her use of illicit drugs.

       More recently, Myles was convicted of misdemeanor battery resulting in bodily

       injury in 2013 and misdemeanor conversion in 2016. In summary, Myles’

       criminal history reflects poorly on her character and her judgment and

       highlights her failure to seize and take advantage of opportunities of

       rehabilitation.


                                                Conclusion
[17]   In this case, we find that sentence revision is supported neither by the nature of

       the offense nor by character traits of the offender. Myles has failed to carry her

       burden of persuading this Court that her sentence is inappropriate. In light of

       the foregoing, we affirm the sentence of the trial court.


[18]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-299 | August 24, 2017   Page 9 of 9
