MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       Dec 09 2015, 5:34 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Donald. E.C. Leicht                                     Gregory F. Zoeller
Kokomo, Indiana                                         Attorney General of Indiana

                                                        Christina D. Pace
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Ivan R. Embry,                                          December 9, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        34A05-1507-CR-1038
        v.                                              Appeal from the Howard Superior
                                                        Court
State of Indiana,                                       The Honorable George A.
Appellee-Plaintiff                                      Hopkins, Judge
                                                        Trial Court Cause No.
                                                        34D04-1502-F3-11



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A05-1507-CR-1038 December 9, 2015        Page 1 of 6
                                           Case Summary
[1]   Ivan R. Embry appeals his aggregate sixteen-year sentence, entered after he

      pled guilty to level 3 felony armed robbery and level 4 felony unlawful

      possession of a firearm by a serious violent felon (“SVF”). He asserts that the

      executed portion of his sentence is inappropriate in light of the nature of the

      offenses and his character. We affirm.


                              Facts and Procedural History
[2]   In 2012, Embry was convicted of battery with serious bodily injury on a victim

      less than fourteen years old. On the basis of this conviction, he was designated

      an SVF. In January 2015, Embry entered a bank in Kokomo and approached a

      teller. He handed her a note that read, “shut the f**k up and give me the

      money.” Appellant’s App. at 10. Immediately thereafter, he pointed a

      handgun at her and handed her a bag to put the money in. She gave Embry the

      bag of money, and he left the scene. Police apprehended Embry soon after and

      found him in possession of a loaded handgun and a large sum of cash. Officers

      took him to the bank, where he was positively identified as the perpetrator.


[3]   The State charged Embry with level 3 felony robbery by force or threat of force

      while armed, level 4 felony unlawful possession of a firearm by an SVF, and

      level 6 felony pointing a firearm. Embry entered into a plea agreement whereby

      he pled guilty to the robbery and SVF counts in exchange for the State’s

      dismissal of the pointing a firearm count. With respect to sentencing, the

      agreement called for concurrent sixteen- and eight-year terms for robbery and

      Court of Appeals of Indiana | Memorandum Decision 34A05-1507-CR-1038 December 9, 2015   Page 2 of 6
      unlawful possession by an SVF respectively. Regarding the sixteen-year term

      for robbery, the agreement capped the executed portion of the term at twelve

      years.


[4]   At sentencing, the trial court cited as aggravators Embry’s extensive criminal

      record and the fact that he was on probation for at least one violent offense at

      the time he committed the armed robbery. The court found the sole mitigator

      to be Embry’s guilty plea and, pursuant to the plea agreement, sentenced him to

      sixteen- and eight-year concurrent terms. The trial court ordered twelve years

      to be executed and the remainder suspended to supervised probation.


[5]   Embry now appeals his sentence. Additional facts will be provided as

      necessary.


                                  Discussion and Decision
[6]   Embry asks that we reduce the executed portion of his sentence pursuant to

      Indiana Appellate Rule 7(B), which states that we “may revise a sentence

      authorized by statute if, after due consideration of the trial court’s decision,

      [this] Court finds that the sentence is inappropriate in light of the nature of the

      offense and the character of the offender.” When a defendant requests

      appellate review and revision of his sentence, we have the power to affirm or

      reduce the sentence. Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In

      conducting our review, we may consider all aspects of the penal consequences

      imposed by the trial court in sentencing, i.e., whether it consists of executed

      time, probation, suspension, home detention, or placement in community

      Court of Appeals of Indiana | Memorandum Decision 34A05-1507-CR-1038 December 9, 2015   Page 3 of 6
      corrections, and whether the sentences run concurrently or consecutively.

      Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). We do not look to see

      whether the defendant’s sentence is appropriate or if another sentence might be

      more appropriate; rather, the test is whether the sentence is “inappropriate.”

      Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). A defendant bears

      the burden of persuading this Court that his sentence meets the

      inappropriateness standard. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.

      2007), clarified on reh’g, 875 N.E.2d 218.


[7]   Embry’s plea agreement set his aggregate sentence at sixteen years and capped

      the executed portion at twelve years. The trial court set the executed portion at

      twelve years, and Embry maintains that this amounted to an inappropriate

      sentence. To the extent that he seems to argue in favor of suspension of all of

      his remaining term, we note that because he has a prior unrelated felony

      conviction, Indiana Code Section 35-50-2-2.2(b) limits the portion of his

      sentence that is eligible for suspension to that in excess of the three-year

      minimum for his level 3 felony. 1


[8]   In his brief, Embry fails to develop an argument concerning the nature of his

      offenses. Instead, he simply admits that he “makes no attempt to diminish the

      seriousness of the crime for which he took full responsibility.” Appellant’s Br.




      1
        Embry pled guilty to a level 3 felony, which carries a sentencing range of three to sixteen years, with a nine-
      year advisory sentence, and a level 4 felony, which carries a sentencing range of two to twelve years, with a
      six-year advisory sentence. Ind. Code §§ 35-50-2-5 and 35-50-2-5.5.

      Court of Appeals of Indiana | Memorandum Decision 34A05-1507-CR-1038 December 9, 2015                Page 4 of 6
       at 6. Notwithstanding, the circumstances surrounding Embry’s offenses show

       that he approached a bank teller, handed her a threatening note demanding

       cash, and pointed a handgun at her at close range. In so doing, he not only

       placed her in imminent danger of death or serious bodily injury, but he also

       created an alarming and dangerous situation for others inside the bank. His

       conduct was confrontational and brazen. In short, the executed portion of his

       sentence is not inappropriate based on the nature of his offenses.


[9]    As for his character, Embry focuses his argument on his mental illness. In this

       vein, we believe that mental illness is less a reflection of character than a

       condition to be treated. Embry was diagnosed with bipolar disorder at age four

       and has been in and out of treatment for nearly a quarter century. He

       disparages the criminal justice system and cites the lack of productivity in

       “[w]arehousing in prison people with diagnosed mental health issues.” Id.

       However, he admits that he received treatment during his stints in prison and

       tended to relapse when released, self-medicating with street drugs and doing

       “foolish” things. Tr. at 23. While we are mindful of the importance of

       addressing the unique needs of inmates who suffer from mental disorders, we

       are unpersuaded by Embry’s assertion that his mental health would be better

       served by probation rather than executed time.


[10]   That said, we emphasize that Embry has been in and out of the system for the

       majority of his life, having launched his criminal career at age thirteen. His

       juvenile history includes two adjudications for possession of alcohol by a minor,

       one for truancy, and four probation violations. His adult history includes three

       Court of Appeals of Indiana | Memorandum Decision 34A05-1507-CR-1038 December 9, 2015   Page 5 of 6
       misdemeanor convictions and three felony convictions, most of which were

       drug- or alcohol-related. He was designated an SVF based on his class B felony

       conviction for battery resulting in serious bodily injury to a victim under age

       fourteen. Knowing that his SVF status prohibited his even possessing a firearm,

       he nevertheless chose to use one to commit armed bank robbery, all while

       serving probation in two different counties. Simply put, Embry’s numerous

       probation failures belie his claims that he should be granted leniency in the

       form of a reduced executed sentence. Based on the foregoing, we conclude that

       he has failed to meet his burden of establishing that his sentence is

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

       Consequently, we affirm.


[11]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A05-1507-CR-1038 December 9, 2015   Page 6 of 6
