      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                        FILED
      regarded as precedent or cited before any                               Mar 06 2020, 10:52 am
      court except for the purpose of establishing                                 CLERK
      the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                                  Court of Appeals
      estoppel, or the law of the case.                                             and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Chad A. Montgomery                                       Curtis T. Hill, Jr.
      Montgomery Law Office, LLC                               Attorney General of Indiana
      Lafayette, Indiana
                                                               Myriam Serrano-Colon
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Michael A. Mitchell,                                     March 6, 2020
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-2312
              v.                                               Appeal from the Tippecanoe
                                                               Superior Court
      State of Indiana,                                        The Honorable Randy J. Williams,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               79D01-1807-F3-21



      Mathias, Judge.


[1]   Michael A. Mitchell (“Mitchell”) pleaded guilty in Tippecanoe Superior Court

      to Level 3 felony armed robbery and Level 4 felony unlawful possession of a


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2312 | March 6, 2020                    Page 1 of 8
      firearm by a serious violent felon (“SVF”). He also admitted to being an

      habitual offender. The trial court sentenced Mitchell to an aggregate term of

      twenty-three years. Mitchell appeals and claims that his sentence is

      inappropriate in light of the nature of his offenses and his character.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On the afternoon of June 12, 2018, Mitchell and Haley Kmich (“Kmich”) drove

      to a Horizon Bank branch in Lafayette, Indiana. Kmich dropped Mitchell off

      and waited in the vehicle behind an apartment complex across the street from

      the bank. Mitchell went inside the bank and approached a teller window. He

      drew a handgun, pointed it at the teller, and demanded that she give him

      money. The teller gave Mitchell cash from her drawer. When two other tellers

      entered the area, Mitchell pointed his weapon at them and demanded that they

      also give him money. One of the tellers gave Mitchell cash from her drawer,

      and Mitchell fled the bank with approximately $750.


[4]   The tellers reported the robbery to the police, who arrived at the bank shortly

      thereafter. The tellers informed the police that they had observed a man, later

      identified as Mitchell, suspiciously walking back and forth in front of the bank

      before the robbery. The police reviewed the bank’s security video and obtained

      a still photo of the robber, which they provided to the media. After the media

      published the photo of the robber, the police received a tip implicating Mitchell



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2312 | March 6, 2020   Page 2 of 8
      in the robbery. A police detective familiar with Mitchell also reviewed the

      security video and agreed that the robber was Mitchell.


[5]   When the police spoke with Kmich, she denied being involved but said that she

      thought “Mike Ball” might have committed the robbery. When the police

      showed her a photo array, she identified Mitchell as “Mike Ball.” Appellant’s

      App. pp. 24–25. Kmich eventually told the police that Mitchell came to her

      apartment and indicated that he planned to commit a crime. She gave Mitchell

      a red hooded sweatshirt and learned that he planned to rob the bank. She

      claimed that she attempted to dissuade Mitchell but was unsuccessful. She

      further stated that she waited for Mitchell behind the apartment and that, when

      he returned from the bank, he was carrying a white bag and told her to leave the

      area. He later gave her some of the money he obtained during the robbery.


[6]   On July 12, 2018, the State charged Mitchell with Level 3 felony conspiracy to

      commit armed robbery, Level 3 felony armed robbery, Level 6 felony theft,

      Level 4 felony unlawful possession of a firearm by an SVF, and three counts of

      Level 6 felony pointing a firearm. The State also alleged that Mitchell was an

      habitual offender. On February 26, 2019, Mitchell entered into a plea

      agreement with the State in which he agreed to plead guilty to Level 3 felony

      armed robbery and Level 4 felony possession of a firearm by an SVF and

      admitted to being an habitual offender. The State agreed to dismiss the

      remaining charges. The plea also provided that sentencing would be left to the

      discretion of the trial court but that the executed sentence could not exceed

      twenty-three years or be less than seventeen years. The trial court accepted the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2312 | March 6, 2020   Page 3 of 8
      plea and, on March 29, 2019, sentenced Mitchell to fifteen years on the Level 3

      felony conviction and a concurrent term of ten years on the Level 4 felony,

      which was enhanced by eight years as a result of the habitual offender

      adjudication, for an aggregate sentence of twenty-three years. The trial court

      ordered twenty-two years of the sentence to be executed and one year

      suspended. Mitchell now appeals.


                                     Discussion and Decision
[7]   Mitchell argues on appeal that his sentence is inappropriate. Indiana Appellate

      Rule 7(B) provides that the court on appeal “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.” We must exercise deference to a trial court’s

      sentencing decision, because Appellate Rule 7(B) requires us to give due

      consideration to that decision and because we understand and recognize the

      unique perspective a trial court brings to its sentencing decisions. Id. Our review

      under Appellate Rule 7(B) is therefore “very deferential.” Conley v. State, 972

      N.E.2d 864, 876 (Ind. 2012). “Such deference 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 character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[8]   Our determination of whether a sentence is inappropriate turns on our sense of

      the culpability of the defendant, the severity of the crime, the damage done to
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2312 | March 6, 2020   Page 4 of 8
       others, and myriad other factors that come to light in a given case. Bethea v.

       State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell v. State, 895 N.E.2d

       1219, 1224 (Ind. 2008)). And our review under Rule 7(B) should focus on “the

       forest—the aggregate sentence—rather than the trees—consecutive or

       concurrent, number of counts, or length of the sentence on any individual

       count.” Cardwell, 895 N.E.2d at 1225. Although we have the power to review

       and revise sentences, the principal role of appellate review should be to attempt

       to “leaven the outliers, and identify some guiding principles for trial courts and

       those charged with improvement of the sentencing statutes, but not to achieve a

       perceived ‘correct’ result in each case.” Id. It is the defendant’s burden on

       appeal to persuade us that the sentence imposed by the trial court is

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


[9]    Here, Mitchell was convicted of a Level 3 felony, a Level 4 felony, and found to

       be an habitual offender. The sentencing range for a Level 3 felony is three to

       sixteen years, with an advisory sentence of nine years. Ind. Code § 35-50-2-5.

       The sentencing range for a Level 4 felony is two to twelve years, with an

       advisory sentence of six years. Ind. Code § 35-50-2-5.5. And a person who has

       been found to be an habitual offender must be sentenced to an additional fixed

       term that is between six and twenty years if the underlying felony was murder

       or a Level 1 through Level 4 felony.


[10]   The trial court sentenced Mitchell to fifteen years on the Level 3 felony, which

       is six years above the advisory but one year less than the maximum. On the

       Level 4 felony, the trial court sentenced Mitchell to ten years, which is four

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2312 | March 6, 2020   Page 5 of 8
       years above the advisory but two less than the maximum. The trial court

       imposed an additional term of eight years for the habitual offender finding,

       which is two years above the minimum, but significantly less than the twenty-

       year maximum. Thus, based on the offenses to which he pleaded guilty,

       Mitchell faced a maximum sentence of forty-eight years, but due to the plea

       agreement, his sentence was capped at the twenty-three years.


[11]   Considering the nature of the offense, there is little evidence portraying the

       robbery in a positive light, such as restraint, regard, or lack of brutality. Mitchell

       did not merely display a weapon, he pointed it at the tellers. The tellers have

       suffered from psychological trauma as a result of Mitchell’s actions. See Tr. pp.

       23–25.


[12]   Mitchell’s sentence is also supported by his character, as evidenced by his

       history of criminal activity. The significance of a defendant’s criminal history

       varies based on the gravity, nature, and number of prior offenses in relation to

       the current offense. Bryant v. State, 841 N.E.2d 1154, 1156–57 (Ind. 2006). Yet

       even a minor criminal history reflects poorly upon a defendant’s character. Reis

       v. State, 88 N.E.3d 1099, 1105 (Ind. Ct. App. 2017). Mitchell’s criminal history

       can hardly be described as minor.


[13]   In 2007, Mitchell was convicted of Class B felony conspiracy to commit

       robbery and Class B felony robbery causing serious bodily injury. Mitchell

       subsequently violated his probation in that case and was ordered to serve the

       remainder of his sentence in prison. In 2010, Mitchell was convicted of Class B


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2312 | March 6, 2020   Page 6 of 8
       felony possession of a dangerous device or material by a prisoner. In 2013, he

       was convicted in Illinois of felony aggravated unlawful use of a weapon. He

       was also convicted of several misdemeanor offenses, including four convictions

       for operating a motor vehicle without ever receiving a license, and one

       conviction for theft. This criminal history is significant in relation to the current

       offenses because it involves convictions for similar behavior, i.e., robbery and

       possessing and using weapons.


[14]   Mitchell’s decision to plead guilty does little to persuade us that his sentence is

       inappropriate in light of his character. The evidence against him included

       photos, video, eyewitness testimony, and the testimony of his accomplice. And

       in exchange for his plea, the State dismissed several serious charges. Indeed,

       based on the charges to which he pleaded guilty, Mitchell faced a maximum

       sentence of forty-eight years, but the plea agreement capped his sentence at

       twenty-three years. Thus, not only was his decision to plead guilty “more likely

       the result of pragmatism than acceptance of responsibility and remorse,” Reis,

       88 N.E.3d at 1105, he also received a substantial benefit from his plea. See

       Hunter v. State, 60 N.E.3d 284, 287 (Ind. Ct. App. 2016) (holding that

       defendant’s sentence was not inappropriate despite his guilty plea where he

       received a significant benefit from the plea), trans. denied;1 see also Childress, 848



       1
         Mitchell also argues that the trial court erred by considering his history of drug abuse as an aggravating
       factor. Mitchell admitted to using drugs in his pre-sentence investigation report. And we have long held that a
       history of untreated substance abuse may constitute a valid aggravating factor. See Bryant v. State, 802 N.E.2d
       486, 501 (Ind. Ct. App. 2004) (holding that trial court did not err in finding substance abuse as an aggravating
       factor where defendant was aware of his problem with drugs and alcohol yet did not take any steps to treat


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2312 | March 6, 2020                       Page 7 of 8
       N.E.2d at 1081 (Dickson, J., concurring) (“[a] defendant’s conscious choice to

       enter a plea agreement that limits the trial court’s discretion to a sentence less

       than the statutory maximum should usually be understood as strong and

       persuasive evidence of sentence reasonableness and appropriateness.”).


                                                     Conclusion
[15]   Given the nature of Mitchell’s offenses and his character, as demonstrated by

       his significant criminal history, we conclude that he has not met his burden of

       showing that his twenty-three-year sentence is inappropriate. We therefore

       affirm the judgment of the trial court.


[16]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




       his addiction), trans. denied. Moreover, even if we agreed with Mitchell that the trial court erred by
       considering his substance abuse as an aggravating factor, any error would be harmless because we have
       determined that his sentence is not inappropriate. See Shelby v. State, 986 N.E.2d 345, 370 (Ind. Ct. App.
       2013) (noting that any error in sentencing is harmless if the sentence imposed is not inappropriate), trans.
       denied (citing Chappell v. State, 966 N.E.2d 124, 134 n.10 (Ind. Ct. App. 2012), trans. denied).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2312 | March 6, 2020                        Page 8 of 8
