MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                Jul 31 2020, 9:23 am

court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Donald R. Shuler                                          Curtis T. Hill, Jr.
Barkes, Kolbus, Rife & Shuler, LLP                        Attorney General of Indiana
Goshen, Indiana                                           Catherine Brizzi
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Arthur Tucker,                                            July 31, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A-CR-581
        v.                                                Appeal from the Elkhart Superior
                                                          Court
State of Indiana,                                         The Honorable Gretchen S. Lund,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          20D04-1910-F6-1354



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-581 | July 31, 2020                     Page 1 of 6
[1]   Arthur Tucker appeals his sentence for theft as a level 6 felony. He asserts his

      sentence is inappropriate. We affirm.


                                      Facts and Procedural History

[2]   On October 2, 2019, Tucker knowingly exerted unauthorized control over

      merchandise from Walmart with the intention to deprive it of the use or value

      thereof. Although the guilty plea transcript reveals little about the nature of his

      offense, Tucker cites portions of the probable cause affidavit and asserts in his

      appellant’s brief that he stole clothes and alcohol, a Walmart employee pointed

      toward a vehicle speeding through the parking lot, an officer stopped the vehicle

      and observed several bottles of alcohol in the backseat, and he answered

      “Theft” when asked by the officer what happened. Appellant’s Brief at 6.


[3]   On October 4, 2019, the State charged Tucker with theft and alleged that the

      offense was elevated from a class A misdemeanor to a level 6 felony based upon

      a prior conviction. On January 15, 2020, the court held a hearing, and Tucker

      pled guilty without a plea agreement.


[4]   On February 12, 2020, the court held a sentencing hearing. Tucker’s counsel

      asserted that Tucker admitted everything when he was stopped by police and

      that the presentence investigation report (“PSI”) revealed that Tucker reported

      he was scared about relapsing and went to Life Treatment Center, and “they

      sent him away.” Transcript Volume II at 18. He argued that “I think that

      there’s enough mitigators there to justify giving him Life Treatment Center.”

      Id. at 19. The prosecutor asked for a sentence of two and one-half years.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-581 | July 31, 2020   Page 2 of 6
      Tucker asserted that he needed treatment and wanted to become a recovery

      coach.


[5]   The court noted that Tucker had a criminal history, was on probation in cause

      number 71D02-1611-F5-229 (“Cause No. 229”) at the time of the offense, had

      violated community supervision eleven times, and had not taken advantage of

      the programming or alternative sanctions offered in the past. It noted that other

      forms of sanctions had proved to be unsuccessful in keeping him from engaging

      in criminal activity. The court found his acceptance of responsibility as a

      mitigating circumstance and noted that he was sincere in his request to receive

      treatment. It found that “the aggravators, taken individually or as a whole,

      outweigh any mitigating factors.” Id. at 23. The court sentenced Tucker to two

      years and ordered that the sentence be served consecutive to his sentence under

      Cause No. 229. The sentencing order states that “[i]f [Tucker] is placed in

      DOC, [he] participate in” the Recovery While Incarcerated Program and that,

      “[u]pon successful completion of the clinically appropriate substance abuse

      treatment program as determined by IDOC, the court will consider a

      modification to this sentence.” Appellant’s Appendix Volume II at 58.


                                                   Discussion

[6]   The issue is whether Tucker’s sentence is inappropriate in light of the nature of

      the offense and his character. Tucker argues that his sentence is inappropriate

      because his actions are typically classified as a class A misdemeanor and the

      offense rose to a level 6 felony only because he had a prior unrelated conviction

      for theft. He asserts that there was no evidence that anyone was ever in danger
      Court of Appeals of Indiana | Memorandum Decision 20A-CR-581 | July 31, 2020   Page 3 of 6
       or that the property taken was damaged in any way. He asserts he was honest

       and cooperative with the police when stopped and his actions were the result of

       his addiction.


[7]    The State argues that Tucker stole over $200 worth of alcohol and entered a

       vehicle that drove quickly and erratically through a heavily populated area. It

       contends that the minimal damage done to the stolen property was likely the

       result of the expedient arrival of the officer, and that Tucker has an extensive

       criminal history and his guilty plea was purely pragmatic.


[8]    Ind. 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 find] that the

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

       of the offender.” Under this rule, the burden is on the defendant to persuade

       the appellate court that his or her sentence is inappropriate. Childress v. State,

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


[9]    Ind. Code § 35-50-2-7 provides that a person who commits a level 6 felony shall

       be imprisoned for a fixed term of between six months and two and one-half

       years, with the advisory sentence being one year.


[10]   Our review of the nature of the offense reveals that Tucker knowingly exerted

       unauthorized control over alcohol and clothes from Walmart with the intention

       to deprive it of the use or value of the property. He entered a vehicle which

       sped through the parking lot and answered “Theft” when stopped by an officer

       and asked what happened. Appellant’s Brief at 6.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-581 | July 31, 2020   Page 4 of 6
[11]   Our review of the character of the offender reveals that Tucker pled guilty as

       charged. The PSI reveals that Tucker reported he began consuming alcohol on

       a regular basis at the age of thirteen or fourteen, last used alcohol on the date of

       his arrest, and had been sober for months prior to that date. He reported using

       cocaine at the age of twenty-one, last used it on the date of his arrest, and had

       not used it for months prior to his arrest. He reported that he completed

       outpatient substance abuse treatment in 2005 and began substance abuse

       treatment during the summer of 2016 while incarcerated at the St. Joseph

       County Jail and the Westville Correctional Facility but did not complete the

       programs because he was released prior to completion. The PSI states that

       Tucker’s probation officer “indicated her Petition to Revoke Probation cited a

       positive drug screen, failure to do drug screens and treatment, and failure to pay

       fees.” Appellant’s Appendix Volume II at 41.


[12]   The PSI reveals that Tucker was convicted of burglary as a class C felony in

       1992; operating a motor vehicle without ever receiving a license as a class C

       misdemeanor and criminal conversion as a class A misdemeanor in 1994; theft

       as a class D felony in 1995; dealing in cocaine as a class B felony in 1996;

       possession of cocaine as a class C felony in 1999; trespass as a class A

       misdemeanor in 2001; trespass and criminal mischief in 2004; battery and

       trespassing in 2005; two counts of theft as class D felonies in 2006; resisting law

       enforcement and battery in 2007; possession of cocaine, methamphetamine, or

       a schedule I or II narcotic drug as a class D felony in 2008; robbery as a class C

       felony in 2009; panhandling as a class C misdemeanor in 2013; two counts of


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-581 | July 31, 2020   Page 5 of 6
       resisting law enforcement as class A misdemeanors, panhandling as a class C

       misdemeanor, and two counts of criminal trespass as class A misdemeanors in

       2014; possession of paraphernalia and attempted theft as class A misdemeanors

       and possession of paraphernalia as a class C misdemeanor in 2015; criminal

       trespass and two counts of theft as class A misdemeanors in 2016; and robbery

       as a level 5 felony under Cause No. 229 in 2017. The PSI reveals that Tucker

       was on probation in Cause No. 229 at the time of the present offense. It also

       indicates that Tucker has violated community supervision eleven times in the

       past.


[13]   After due consideration and in light of his lengthy criminal history, we

       conclude that Tucker has not sustained his burden of establishing that his

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


[14]   For the foregoing reasons, we affirm Tucker’s sentence.


[15]   Affirmed.


       Robb, J. ,and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-581 | July 31, 2020   Page 6 of 6
