MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                              Apr 30 2019, 10:48 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
James Harper                                              Curtis T. Hill, Jr.
Deputy Public Defender                                    Attorney General of Indiana
Harper & Harper, LLC
Valparaiso, Indiana                                       Matthew B. MacKenzie
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brandon Hill,                                             April 30, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2613
        v.                                                Appeal from the LaPorte Superior
                                                          Court
State of Indiana,                                         The Honorable Michael S.
Appellee-Plaintiff.                                       Bergerson, Judge
                                                          Trial Court Cause Nos.
                                                          46D01-1804-F5-400
                                                          46D01-1805-F5-536



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2613 | April 30, 2019                  Page 1 of 8
                                        Statement of the Case
[1]   Brandon Hill appeals his sentence following his convictions for two counts of

      Robbery, as Level 5 felonies, and one count of resisting law enforcement, as a

      Class A misdemeanor. Hill presents two issues for our review:


              1.       Whether the trial court abused its discretion when it
                       sentenced him.

              2.       Whether his sentence is inappropriate in light of the nature
                       of the offenses and his character.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On March 19, 2018, Hill, who was unarmed, entered a Metro PCS store in

      Michigan City and ordered a store employee to give him all of the money from

      the cash register. The employee handed over $1,216.76 to Hill. Then, on April

      22, Hill ordered two employees at the same store to give him money from the

      cash register, and they handed over $682.94 to Hill. Shortly after the second

      robbery, police officers attempted to apprehend Hill, and he ran from the

      officers before they were ultimately able to arrest him.


[4]   In Cause No. 46D01-1805-F5-536 (“F5-536”), the State charged Hill with

      robbery, as a Level 5 felony, for the March 19 robbery. In Cause No. 46D01-

      1804-F5-400 (“F5-400”), the State charged Hill with robbery, as a Level 5

      felony, and resisting law enforcement, as a Class A misdemeanor, for the



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2613 | April 30, 2019   Page 2 of 8
      incident on April 22. On August 23, Hill pleaded guilty as charged in both

      cases.


[5]   The trial court accepted his plea and sentenced Hill as follows: five years for

      robbery under F5-536; five years for robbery under F5-400; and one year for

      resisting law enforcement under F5-400. The court ordered that the sentences

      under F5-400 would run concurrently, and the sentences under F5-536 and F5-

      400 would run consecutively. However, the trial court then found that the

      offenses constituted an episode of criminal conduct under Indiana Code Section

      35-50-1-2 (2018) and capped the aggregate sentence under both cause numbers

      at seven years executed. 1 This appeal ensued.


                                       Discussion and Decision
                                       Issue One: Abuse of Discretion

[6]   Hill asserts that the trial court abused its discretion when it sentenced him

      because it relied on an invalid aggravating circumstance. Sentencing decisions

      lie within the sound discretion of the trial court. Cardwell v. State, 895 N.E.2d

      1219, 1222 (Ind. 2008). An abuse of discretion occurs if the decision is “clearly

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




      1
        We fail to understand how the trial court reached this conclusion. The F5-536 robbery occurred on March
      19. The F5-400 robbery occurred more than one month later on April 22. The two offenses were patently
      not an episode of criminal conduct. See I.C. § 35-50-1-2(b) (“‘[E]pisode of criminal conduct’ means offenses
      or a connected series of offenses that are closely related in time, place, and circumstance.”). Nonetheless, as
      the State invited the error by agreeing in the trial court with Hill’s assertion that the two offenses were an
      episode of criminal conduct, see Tr. Vol. II at 42-43, we will not review this issue on appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2613 | April 30, 2019                      Page 3 of 8
      the reasonable, probable, and actual deductions to be drawn therefrom.” Gross

      v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation omitted), trans. denied.


[7]   A trial court abuses its discretion in sentencing if it does any of the following:


              (1) fails “to enter a sentencing statement at all;” (2) enters “a
              sentencing statement that explains reasons for imposing a
              sentence—including a finding of aggravating and mitigating
              factors if any—but the record does not support the reasons;” (3)
              enters a sentencing statement that “omits reasons that are clearly
              supported by the record and advanced for consideration;” or (4)
              considers reasons that “are improper as a matter of law.”


      Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind.), clarified on reh’g

      other grounds, 875 N.E.2d 218 (2007)).


[8]   Here, at sentencing, the trial court identified three aggravators: Hill’s criminal

      history; his classification as a high risk to reoffend per his Indiana Risk

      Assessment System (“IRAS”) score; and the fact that he was on parole at the

      time that he committed the offenses. And the court identified a single

      mitigator, namely, Hill’s guilty plea. The court found that the aggravators

      outweighed the mitigators and imposed the aggregate sentence of seven years.


[9]   Hill contends that the trial court erred when it found that his IRAS score was an

      aggravator. Hill is correct that “[e]vidence-based offender assessment scores are

      not to be considered aggravating or mitigating factors [and may not be used to]

      determine the gross length of a sentence.” Williams v. State, 997 N.E.2d 1154,




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2613 | April 30, 2019   Page 4 of 8
       1165 (Ind. Ct. App. 2013). Thus, the trial court erred when it identified that

       aggravator. But that is not the end of our inquiry.


[10]   Where the trial court abuses its discretion in sentencing a defendant, we need

       not remand for resentencing if we can “say with confidence that the trial court

       would have imposed the same sentence had it properly considered reasons that

       enjoy support in the record.” Anglemyer, 868 N.E.2d at 491. Hill was only

       twenty-eight years old at the time he committed the offenses, and his criminal

       history includes two prior convictions in Illinois for aggravated battery. Hill

       served twelve years on the second aggravated battery conviction, and he was on

       parole following that sentence at the time he committed the instant offenses.


[11]   We reject Hill’s assertion that, ignoring the invalid aggravator, the remaining

       aggravators “are very similar” and do not support his sentence. Appellant’s Br.

       at 6. Our Supreme Court has observed that “[p]robation stands on its own as

       an aggravator. While a criminal history aggravates a subsequent crime because

       of recidivism, probation further aggravates a subsequent crime because the

       defendant was still serving a court-imposed sentence.” Ryle v. State, 842 N.E.2d

       320, 323 n.5 (Ind. 2005). And this Court has stated that a defendant’s

       commission of an offense while on probation is “a significant aggravator.”

       Barber v. State, 863 N.E.2d 1199, 1208 (Ind. Ct. App. 2007), trans. denied. We

       can say with confidence that the trial court would have imposed the same

       sentence had it not considered the invalid aggravator.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2613 | April 30, 2019   Page 5 of 8
                               Issue Two: Inappropriateness of Sentence

[12]   Hill asserts that his seven-year aggregate sentence is inappropriate in light of the

       nature of the offenses and his character. Indiana Appellate Rule 7(B) provides

       that “[t]he 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.” This Court has recently held that “[t]he advisory sentence is the

       starting point the legislature has selected as an appropriate sentence for the

       crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017).

       And the Indiana Supreme Court has explained that:


               The principal role of appellate review should be to attempt to
               leaven the outliers . . . but not achieve a perceived “correct”
               result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). Defendant has the burden to persuade us that the
               sentence imposed by the trial court is inappropriate. [Anglemyer,
               868 N.E.2d at 494].


       Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).


[13]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we

       regard a sentence as inappropriate 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 facts that come to light in a given case.” Id. at 1224.

       The question is not whether another sentence is more appropriate, but rather

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2613 | April 30, 2019   Page 6 of 8
       whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless

       overcome by compelling evidence portraying in a positive light the nature of the

       offense (such as accompanied by restraint, regard, and lack of brutality) and the

       defendant’s character (such as substantial virtuous traits or persistent examples

       of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[14]   The maximum possible aggregate sentence that the trial court could have

       imposed here was thirteen years, and Hill’s aggregate sentence is only seven

       years. We cannot say that Hill’s sentence is inappropriate in light of the nature

       of the offenses and his character. With respect to the nature of the offenses, Hill

       used intimidation to steal money from three different Metro PCS employees on

       two occasions, and Hill attempted to evade officers when they tried to

       apprehend him. In addition, again, Hill was on parole following a twelve-year

       sentence for aggravated battery at the time of the offenses. With respect to

       Hill’s character, while the record does not show a juvenile history in Indiana,

       Hill testified at his sentencing hearing that he had been “held, detained, [or]

       incarcerated [in Illinois] since [he] was 11 or 12 years old.” Tr. at 20. And

       Hill’s two prior aggravated battery convictions involved “battery on a Peace

       Officer” and “battery with a firearm,” respectively. Appellant’s App. Vol. 2 at

       23. We cannot say that Hill’s aggregate sentence of seven years is inappropriate

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


[15]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2613 | April 30, 2019   Page 7 of 8
Baker, J., and Robb, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2613 | April 30, 2019   Page 8 of 8
