MEMORANDUM DECISION                                                         FILED
Pursuant to Ind. Appellate Rule 65(D), this                            Jun 29 2018, 7:20 am
Memorandum Decision shall not be regarded as                                CLERK
precedent or cited before any court except for the                      Indiana Supreme Court
                                                                           Court of Appeals
purpose of establishing the defense of res judicata,                         and Tax Court

collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                     Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                    Attorney General of Indiana
Madison, Indiana                                       Monika Prekopa Talbot
                                                       Supervising Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Corey Roberts,                                             June 29, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           17A-CR-3015
        v.                                                 Appeal from the Dearborn
                                                           Superior Court
State of Indiana,                                          The Honorable Jonathan N.
Appellee-Plaintiff.                                        Cleary, Judge
                                                           Trial Court Cause No.
                                                           15D01-1705-F4-17



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 17A-CR-3015 | June 29, 2018                   Page 1 of 6
                                          Case Summary
[1]   In May of 2017, Corey Roberts and another person set fire to two vending

      machines in front of a Dillsboro liquor store, which was in a building that also

      contained an occupied apartment. The fire also damaged the building, causing

      over $5000 in damages altogether. The State charged Roberts with four

      felonies, and he ultimately pled guilty to Level 4 felony arson in exchange for

      the State dismissing the other three counts. The trial court sentenced Roberts to

      nine years of incarceration, with two suspended to probation. Roberts contends

      that his sentence is inappropriately harsh. Because we disagree, we affirm.



                            Facts and Procedural History
[2]   In the early morning hours on May 25, 2017, there was a fire investigation at

      J&J Liquors in Dillsboro, which is attached to a storage facility and has an

      upstairs apartment, where James and Jewel Walston, the original owners of the

      store, resided at the time. Two soft drink vending machines were on fire, and

      the fire also damaged the eaves of the porch that overhangs the entrance of the

      store. Three fire trucks responded to the fire, which was extinguished. Each

      vending machine had sparklers set in the dispensing area. There was a third

      vending machine, which was undamaged, with remnants of burnt sparklers.

      Dillsboro Deputy Town Marshal Josh Cady recognized two suspects from

      surveillance video, Roberts and Cody Holland. In fact, the duo had posted live

      video of the fire on Facebook. The police interviewed Roberts and Holland,




      Court of Appeals of Indiana | Memorandum Decision 17A-CR-3015 | June 29, 2018   Page 2 of 6
      who admitted that they had set the vending machines on fire. When asked why

      they had done it, Roberts said that he liked seeing the fire trucks come.


[3]   On May 30, 2017, the State charged Roberts with Level 4 felony arson with

      property loss of over $5000, Level 4 felony arson on a dwelling of another

      person, Level 4 felony arson under circumstances that endanger human life,

      and Level 4 felony conspiracy to commit arson. On September 25, 2017,

      Roberts pled guilty to Level 4 felony arson with property loss of over $5000.


[4]   On November 6, 2017, Roberts testified at sentencing that he had his GED and

      had been employed prior to incarceration. Roberts testified that he would be

      able to reside with his cousin Jennifer Negley if he were released, which Negley

      confirmed. Roberts agreed to pay restitution. Roberts further testified that he

      had no criminal history other than the instant case, was drunk at the time of the

      incident, did not know that anyone was living there, had started drinking more

      after his young son passed away due to illness in 2016, had anxiety and

      depression issues, and felt remorse.


[5]   The trial court considered as mitigating the fact that Roberts had no criminal

      history, pled guilty, and expressed remorse. The trial court also considered

      Roberts’s mental health and his willingness to pay restitution. The trial court

      considered as aggravating circumstances the nature of the offense and the fact

      that Roberts and his companion live-streamed the events on Facebook while

      cursing and making mocking comments about the crime. The trial court further

      considered the potential for harm both to the couple living upstairs from the



      Court of Appeals of Indiana | Memorandum Decision 17A-CR-3015 | June 29, 2018   Page 3 of 6
      liquor store and to the first responders. The trial court sentenced Roberts to

      nine years of incarceration with two years suspended to probation.


                                 Discussion and Decision
[6]   Roberts contends that his nine-year sentence, with two suspended to probation,

      for Level 4 felony arson is inappropriately harsh. We “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.” Ind. Appellate Rule 7(B). “Although

      appellate review of sentences must give due consideration to the trial court’s

      sentence because of the special expertise of the trial bench in making sentencing

      decisions, Appellate Rule 7(B) is an authorization to revise sentences when

      certain broad conditions are satisfied.” Shouse v. State, 849 N.E.2d 650, 660

      (Ind. Ct. App. 2006), trans. denied (citations and quotation marks omitted).

      “[W]hether 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.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). In addition to the

      “due consideration” we are required to give to the trial court’s sentencing

      decision, “we understand and recognize the unique perspective a trial court

      brings to its sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873

      (Ind. Ct. App. 2007). Indiana Code section 35-50-2-5.5 provides, in part, that

      “[a] person who commits a Level 4 felony shall be imprisoned for a fixed term

      of between two (2) and twelve (12) years, with the advisory sentence being six


      Court of Appeals of Indiana | Memorandum Decision 17A-CR-3015 | June 29, 2018   Page 4 of 6
      (6) years.” So, Roberts’s seven-year, executed sentence represents a small

      enhancement over the advisory for his crime.


[7]   First, the nature of the offense is that Roberts and his companion set two

      vending machines on fire. Not unexpectedly, given the machines’ location

      underneath a wooden overhang, the fire spread to the eaves of the porch that

      overhangs the entrance of J&J Liquors. There is an apartment upstairs, in

      which the Walstons resided at the time of the fire. Roberts’s actions put the

      Walstons at great risk. Roberts’s claim that he did not know that anyone lived

      there is undercut somewhat by the fact that all he would have had to do was

      look up to see the apartment above the store. Moreover, Roberts admitted to

      starting the fire because he wanted to see the fire trucks respond. In addition,

      Roberts and Holland broadcast video of their crimes on Facebook, and, as the

      trial court stated, they were cursing and making mocking comments about the

      crime on the video. The nature of the crime and the events surrounding it do

      not establish that Roberts’s slightly enhanced sentence is inappropriate.


[8]   As for Roberts’s character goes, we cannot say that his guilty plea necessarily

      speaks well of it considering the substantial benefit he received, namely the

      three Level 4 felony charges that were dropped in exchange for the plea.

      Moreover, the positive impact of Roberts’s lack of a criminal record prior to the

      instant crimes is somewhat diluted by the Facebook video, in which Roberts

      and Holland talk about other committing criminal acts, namely slashing

      multiple tires. In other words, it appears that Roberts had committed at least

      some other crimes before the instant crime but had just not been caught or


      Court of Appeals of Indiana | Memorandum Decision 17A-CR-3015 | June 29, 2018   Page 5 of 6
      punished. Also, while it is commendable that Roberts agreed to pay restitution

      to the victim of the dismissed theft count, this has not yet occurred. Roberts has

      family support, a GED, and potential employment upon release, which is all

      well and good, but none of this changes the fact that Roberts committed a crime

      that destroyed properly, put lives at risk, and was motivated by nothing more

      than a desire to see the fire trucks respond. In other words, Roberts put other

      lives at risk to entertain himself. Roberts has failed to establish that his sentence

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


[9]   We affirm the judgment of the trial court.


      Baker, J., and Kirsch, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 17A-CR-3015 | June 29, 2018   Page 6 of 6
