MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                       FILED
court except for the purpose of establishing                      Aug 24 2017, 6:37 am

the defense of res judicata, collateral                                CLERK
                                                                   Indiana Supreme Court
estoppel, or the law of the case.                                     Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kevin Wild                                               Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General

                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Shelton,                                          August 24, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1703-CR-581
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Stanley E. Kroh,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         49G03-1607-F3-28376



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-581 | August 24, 2017      Page 1 of 8
                                             Case Summary
[1]   While on parole for a rape conviction, Robert Shelton grabbed a woman’s purse

      and punched her in the face and head several times when she refused to let go

      of it. The State charged him with level 3 felony attempted robbery and alleged

      that he was a habitual offender based on two prior robbery convictions. A jury

      found him guilty of attempted robbery, and he admitted to being a habitual

      offender. The trial court sentenced him to fourteen years for the attempted

      robbery, enhanced by sixteen years for his habitual offender status, for an

      aggregate sentence of thirty years executed.


[2]   On appeal, Shelton asks us to reduce his sentence, claiming that it is

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

      minimizes the seriousness of the offense and his criminal history and has failed

      to carry his burden of persuading us that his sentence is inappropriate.

      Therefore, we affirm.


                                 Facts and Procedural History
[3]   Shortly after 10:00 a.m. on July 22, 2016, Emily Longnecker arrived at a

      downtown Indianapolis shopping center to pick up some dry cleaning. She was

      getting out of her car with her purse in her hand when she was approached by

      Shelton, who had been released on parole for a rape conviction three months

      earlier. He said, “Ma’am, can I ask you something?” Tr. Vol. 2 at 39.

      Longnecker had been asked for money by people making similar requests, and

      she replied, “Sorry, sir, I don’t have any money today on me, just credit.” Id.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-581 | August 24, 2017   Page 2 of 8
      Shelton repeated his question, and Longnecker repeated her answer. Shelton

      then grabbed Longnecker’s purse, and she “grabbed back” and engaged in “a

      tug of war[.]” Id. at 40. Shelton said, “Give me your money. I know you have

      money.” Id. at 41. Longnecker wrested her purse from Shelton, who punched

      her “four or five times” in the face and head. Id. Longnecker screamed, and

      Shelton ran around the front of her car. She chased him down the street, and

      eventually he was caught and restrained by bystanders. A police officer arrived

      and arrested Shelton. Longnecker’s face “was throbbing for a few hours

      afterwards[,]” and she suffered some bruising and a daylong headache despite

      receiving a shot “for the pain in [her] head and [her] face” at an urgent care

      center. Id. at 47, 48.


[4]   The State charged Shelton with level 3 felony attempted robbery and alleged

      that he was a habitual offender based on two prior robbery convictions. A jury

      found Shelton guilty of attempted robbery, and he admitted to being a habitual

      offender. At the sentencing hearing, the trial court found several aggravating

      factors (including Shelton’s criminal history and his commission of the crime

      while on parole “for a very serious offense”) and several mitigating factors

      (including Shelton’s upbringing, drug addiction, and apology to Longnecker at

      the hearing). Id. 179. The court found that the aggravators outweighed the

      mitigators and that Shelton’s actions justified “a sentence well above the

      advisory[.]” Id. at 181. The court sentenced Shelton to fourteen years for the

      attempted robbery, enhanced by sixteen years for his habitual offender status,




      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-581 | August 24, 2017   Page 3 of 8
      for an aggregate sentence of thirty years executed. Shelton now appeals his

      sentence.


                                     Discussion and Decision
[5]   “Article 7, Section 6 of the Indiana Constitution authorizes this Court to

      independently review and revise a sentence imposed by the trial court.” Neville

      v. State, 976 N.E.2d 1252, 1266 (Ind. Ct. App. 2012), trans. denied (2013).

      Shelton asks us to reduce his sentence pursuant to Indiana Appellate Rule 7(B),

      which 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.” “[W]e must and should exercise deference to a trial court’s

      sentencing decision, both because 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.” Rutherford v.

      State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). The principal role of appellate

      review of sentences should be to attempt to leaven the outliers, “not to achieve

      a perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219,

      1225 (Ind. 2008). “[A]ppellate review 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.” Id.


[6]   Whether we regard a sentence as appropriate “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 49A02-1703-CR-581 | August 24, 2017   Page 4 of 8
      others, and myriad other factors that come to light in a given case.” Id. at 1224.

      “When reviewing the appropriateness of a sentence under Rule 7(B), we may

      consider all aspects of the penal consequences imposed by the trial court in

      sentencing the defendant, including whether a portion of the sentence was

      suspended.” Prater v. State, 59 N.E.3d 314, 318 (Ind. Ct. App. 2016). “[T]he

      question under Appellate Rule 7(B) is not whether another sentence is more

      appropriate; rather, the question is whether the sentence imposed is

      inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). “The

      defendant has the burden of persuading us that his sentence is inappropriate.”

      Id. at 267.


[7]   The advisory sentence is the starting point that the legislature has selected as an

      appropriate sentence for the crime committed. Erickson v. State, 72 N.E.3d 965,

      975 (Ind. Ct. App. 2017), trans. denied. 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(b). If, as in Shelton’s case, a person convicted of level 3 felony

      attempted robbery has a prior unrelated felony conviction, the trial court may

      suspend only that part of a sentence that exceeds the minimum sentence. Ind.

      Code § 35-50-2-2.2(b). Shelton’s sentence for attempted robbery was enhanced

      due to his habitual offender status; the range for such an enhancement is six to

      twenty years, none of which may be suspended. Ind. Code § 35-50-2-8(i).

      Thus, Shelton could have been sentenced from as few as nine to as many as

      thirty-six years, only some of which could have been suspended.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-581 | August 24, 2017   Page 5 of 8
[8]   Regarding the nature of the offense, Shelton claims that he “did little if

      anything beyond the minimum necessary to meet the requirements” of level 3

      felony attempted robbery. Appellant’s Br. at 12. Robbery is the knowing or

      intentional taking of property from another person by using or threatening the

      use of force on any person. Ind. Code § 35-42-5-1(a). “A person attempts to

      commit a crime when, acting with the culpability required for commission of

      the crime, the person engages in conduct that constitutes a substantial step

      toward commission of the crime.” Ind. Code § 35-41-5-1(a). Except for

      murder, “[a]n attempt to commit a crime is a felony or misdemeanor of the

      same level or class as the crime attempted.” Id. A baseline robbery (or

      attempted robbery) is a level 5 felony, which carries a sentencing range of one

      to six years and an advisory term of three years. Ind. Code §§ 35-42-5-1(a), 35-

      50-2-6(b). The offense is elevated to a level 3 felony if it results in bodily injury

      to any person other than a defendant. Ind. Code § 35-42-5-1(a). “‘Bodily

      injury’ means any impairment of physical condition, including physical pain.”

      Ind. Code § 35-31.5-2-29.


[9]   During his attempt to take Longnecker’s purse, Shelton struck her not once, but

      four or five times in the face and head, which caused bruising, swelling, and a

      headache that lasted all day despite an injection of pain medication. Moreover,

      as the State observes, Shelton committed the crime “in a public area and in

      broad daylight[,]” thereby “taking away any sense of security this victim, or any

      person, would have going about the city engaging in routine errands.”




      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-581 | August 24, 2017   Page 6 of 8
       Appellee’s Br. at 11. Indeed, Longnecker told Shelton at the sentencing

       hearing,


               [W]ith that attack, you have taken some of the peace I once felt
               walking in this city in broad daylight and in public, in the
               sunshine just going about my daily life. Some days have been a
               challenge, because if you’re not safe in broad daylight going to
               the dry cleaners in a public place at 10:30 in the morning, where
               are you really safe?


       Tr. Vol. 2 at 163. Thus, the nature of Shelton’s offense is not as “ordinary” as

       he would have us believe. Appellant’s Br. at 12.


[10]   As for Shelton’s character, one relevant consideration is his criminal history.

       Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied (2016).

       “The significance of criminal history varies based on the gravity, nature, and

       number of prior offenses in relation to the current offense.” Id. Shelton’s

       criminal history dates back to 1987, when he was convicted of misdemeanor

       battery at age nineteen and class C felony robbery at age twenty. His probation

       for the robbery conviction was revoked, and he was ordered to serve four years

       executed. In 1989, he was convicted of class B felony robbery, for which he

       received a ten-year executed sentence, and class D felony theft, for which he

       received a two-year executed sentence. In 1997, he was convicted of class A

       misdemeanor driving while suspended, for which he received a one-year

       suspended sentence. That same year, he was also convicted of class B felony

       rape and was found to be a habitual offender for the first time. He received a



       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-581 | August 24, 2017   Page 7 of 8
       forty-year executed sentence and was released on parole in April 2016, only

       three months before he attempted to rob Longnecker.


[11]   The record before us supports the State’s blunt assessment that “[t]he only time

       [Shelton] is not committing crimes is when he is incarcerated.” Appellee’s Br.

       at 13. He has a troubling history of inflicting sexual and physical violence on

       women and taking other people’s property by force or threat of force. He has

       violated both probation and parole, and his prior habitual offender designation

       and incarcerations have failed to deter him from engaging in criminal activity.

       Shelton obtained several degrees and trade certifications in prison, but he failed

       to put them to good use after his release. According to Shelton’s presentence

       investigation report, at the time of his arrest he was employed as a plane loader

       at $13.95 per hour and was “very stable” financially, which begs the question of

       why he attempted to steal a woman’s purse in a parking lot. Appellant’s App.

       Vol. 2 at 108. Shelton admitted to being a habitual offender and apologized to

       Longnecker at sentencing, but, as the trial court recognized, he was forty-nine

       years old and had “not been rehabilitated” despite three decades of encounters

       with the criminal justice system. Tr. Vol. 2 at 181. Shelton has failed to carry

       his burden of persuading us that his thirty-year executed sentence is

       inappropriate, and therefore we affirm.


[12]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-581 | August 24, 2017   Page 8 of 8
