Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                                            Jul 18 2014, 8:58 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                                     ATTORNEYS FOR APPELLEE:

BRUCE W. GRAHAM                                             GREGORY F. ZOELLER
Graham Law Firm P.C.                                        Attorney General of Indiana
Lafayette, Indiana
                                                            RYAN D. JOHANNINGSMEIER
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

EMMANUEL WINTERS,                                   )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 79A02-1312-CR-1050
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                            The Honorable Thomas H. Busch, Judge
                                Cause No. 79D02-1303-FB-11


                                           July 18, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                          Case Summary

          Pursuant to Indiana Post-Conviction Rule 2, Emmanuel Winters (“Winters”) belatedly

challenges the twenty-year sentence imposed following his plea of guilty to Robbery, as a

Class B felony, 1 and his admission that he is a habitual offender. 2 We affirm.

                                               Issues

          Winters presents two issues for review:

          I.       Whether the trial court abused its discretion by considering an
                   improper aggravator; and

          II.      Whether his sentence is inappropriate.

                                  Facts and Procedural History

          On September 24, 2013, Winters pled guilty to Robbery, as a Class B felony. He

admitted his status as a habitual offender, having prior unrelated felony convictions for

Receiving Stolen Property and Strangulation. On October 16, 2013, the trial court imposed

upon Winters a ten-year sentence, enhanced by ten years due to his status as a habitual

offender. This appeal ensued.

                                     Discussion and Decision

          Upon conviction of a Class B felony, Winters faced a sentencing range of six years to

twenty years, with the advisory sentence being ten years. See Ind. Code § 35-50-2-5. Upon

his adjudication as a habitual offender, he faced a sentencing enhancement of between ten

years and thirty years. See Ind. Code § 35-50-2-8.

1
    Ind. Code § 35-42-5-1.

2
    I.C. § 35-50-2-8.

                                                  2
       Winters received the advisory sentence for his Class B felony conviction, enhanced by

the minimum term of years. In imposing this sentence, the trial court found as aggravating:

the injury suffered by the victim was significant and greater than the elements necessary to

prove the offense, Winters’ criminal history, and his violation of the conditions of probation.

In mitigation, the trial court found that Winters had pled guilty, he had taken advantage of

rehabilitation programs while incarcerated, he was remorseful, and he had experienced a

difficult childhood.

       Winters presents two sentencing challenges, first arguing that the trial court abused its

discretion by considering an improper aggravator, and second arguing that his sentence is

inappropriate.

                                 Aggravating Circumstance

       One who knowingly or intentionally takes property from another person or from the

presence of another person by using or threatening the use of force on any person or by

putting any person in fear commits Robbery, a Class C felony. I.C. § 35-42-5-1. The offense

is elevated from a Class C felony to a Class B felony if it is committed by means of a deadly

weapon or results in bodily injury to any person other than a defendant. Id.

       Winters challenges the trial court’s determination that the injury suffered by the victim

was significant and greater than the elements necessary to prove the offense. He concedes

that he used a firearm to rob a liquor store employee, and his offense was elevated from a

Class C felony to a Class B felony on this basis. He then claims that the trial court

considered a material element of the crime to aggravate his offense.


                                               3
       “So long as the sentence is within the statutory range, it is subject to review only for

abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on other

grounds, 875 N.E.2d 218 (Ind. 2007).          This includes the finding of an aggravating

circumstance and the omission to find a proffered mitigating circumstance. Id. at 490-91.

When imposing a sentence for a felony, the trial court must enter “a sentencing statement that

includes a reasonably detailed recitation of its reasons for imposing a particular sentence.”

Id. at 491.

       The trial court’s reasons must be supported by the record and must not be improper as

a matter of law. Id. However, a trial court’s sentencing order may no longer be challenged

as reflecting an improper weighing of sentencing factors. Id. A trial court abuses its

discretion if its reasons and circumstances for imposing a particular sentence are clearly

against the logic and effect of the facts and circumstances before the court, or the reasonable,

probable, and actual deductions to be drawn therefrom. Hollin v. State, 877 N.E.2d 462, 464

(Ind. 2007).

       Here, the trial court’s sentencing statement provides in pertinent part:

       In terms of aggravating factors, the injury to the victim is significant and
       greater than the elements necessary to prove the commission of the offense.
       The charge doesn’t include the injury – Count Two was the injury, but you are
       pleaded out of that and the victim was struck hard and hurt, fortunately not
       seriously.

(Tr. 32.)

       In Pedraza v. State, 887 N.E.2d 77, 80 (Ind. 2008), our supreme court clarified that the

consideration of a material element of a crime as an aggravator “is no longer an inappropriate


                                               4
double enhancement.” This is because, since the 2005 modification of the sentencing

scheme, sentencing “consists of only one discretionary determination.” Id. Regardless, the

seriousness of the offense, implicitly including the nature and circumstances of the crime as

well as the manner in which the crime is committed, has long been held to be a valid

aggravating factor. Gomillia v. State, 993 N.E.2d 306, 310 (Ind. Ct. App. 2013) (citing

Anglemyer, 868 N.E.2d at 492). Moreover, where a plea agreement lacks language

prohibiting the trial court from considering dismissed enhancements or the original charges

from which a lesser plea is taken, “it is not necessary for a trial court to turn a blind eye to the

facts of the incident that brought the defendant before them.” Bethea v. State, 983 N.E.2d

1134, 1145 (Ind. 2013).

       Winters admitted the truth of the following facts. He entered the Tower Liquor Store

on Creasy Lane in Lafayette with the intention of taking money from the store. While he was

armed with a deadly weapon, Winters threatened clerk Dennis Buck and compelled him to

open the cash register and hand over the money. Buck testified that Winters struck him on

the back of the head so hard that he “saw stars.” (Tr. 24.) Buck sustained a “pretty big”

lump, received medical attention at a hospital, and suffered tenderness for two weeks. (Tr.

24.)

       The trial court properly considered the circumstances of the offense, including Buck’s

injury, as an aggravator.

       Appropriateness of Sentence.




                                                 5
           The authority granted to this Court by Article 7, § 6 of the Indiana Constitution

permitting appellate review and revision of criminal sentences is implemented through

Indiana Appellate Rule 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.” In performing our review, we assess “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). The principal role of

such review is to attempt to leaven the outliers. Id. at 1225. A defendant ‘“must persuade

the appellate court that his or her sentence has met th[e] inappropriateness standard of

review.”’ Anglemyer, 868 N.E.2d at 494 (quoting Childress v. State, 848 N.E.2d 1073, 1080

(Ind. 2006)).

           As for the nature of the offense, Winters entered a liquor store where two employees

were on duty, with the intention of committing a robbery. Winters pressed his handgun

against Buck’s head and forced Buck to open the cash register. Complaining that Buck was

“taking too long,” Winters struck Buck in the head with the handgun. (Tr. 23.) This resulted

in Buck having a “goose egg” on his head. (Tr. 24.) After treatment at the hospital, Buck

experienced tenderness for two weeks.

           As to the character of the offender, Winters has a history of juvenile and criminal

offenses. He has been arrested on six occasions for domestic battery. 3 He has previously


3
    Several of the domestic battery charges were dismissed; only one resulted in a criminal conviction. A record

                                                        6
violated probation. He pled guilty and exhibited remorse. He completed a GED program

while incarcerated.

         Having reviewed the matter, we conclude that the trial court did not impose an

inappropriate sentence under Appellate Rule 7(B), and the sentence does not warrant

appellate revision. Accordingly, we decline to disturb the sentence imposed by the trial

court.

                                                 Conclusion

         Winters has not shown that the trial court abused its sentencing discretion or that his

advisory sentence, with the minimum habitual offender enhancement, is inappropriate.

         Affirmed.

KIRSCH, J., and MAY, J., concur.




of arrest, without more, does not establish the historical fact that a defendant committed a criminal offense and
thus it may not be properly considered as evidence of criminal history. Cotto v. State, 829 N.E.2d 520, 526
(Ind. 2005). However, a record of arrest may reveal that a defendant has not been deterred even after having
been subject to police authority and the arrest record may be relevant to the defendant’s character in terms of
the risk of committing another crime. Id.

                                                       7
