      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                           FILED
      Memorandum Decision shall not be regarded as                     Dec 27 2016, 7:44 am
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,                  CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
      collateral estoppel, or the law of the case.                           and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Jeremy K. Nix                                            Gregory F. Zoeller
      Huntington, Indiana                                      Attorney General of Indiana
                                                               Michael G. Worden
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Andrew W. Barrus,                                        December 27, 2016

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               35A02-1605-CR-1170
              v.                                               Appeal from the Huntington Circuit
                                                               Court.
                                                               The Honorable Thomas M. Hakes,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Cause Nos. 35C01-1412-F4-278,
                                                               35C01-0710-FB-73




      Friedlander, Senior Judge

[1]   Andrew W. Barrus, who was on probation at the time of his offenses, appeals

      from the trial court’s sentencing order imposing a sentence for his new offenses

      and sentencing him for the revocation of his probation. We affirm and remand.




      Court of Appeals of Indiana | Memorandum Decision 35A02-1605-CR-1170 | December 27, 2016   Page 1 of 9
[2]   Barrus entered into a plea agreement in Cause Number 35C01-0710-FB-73.

      After his plea of guilty to eight counts of burglary, each as a class B felony and

      one count of burglary as a class C felony, the trial court sentenced Barrus to an

      aggregate sentence of twenty-four years with three years suspended to

      probation. While serving on probation under FB-73, Barrus was charged in

      Cause Number 35C01-1412-F4-278, and a petition to revoke his probation was

      filed in FB-73.


[3]   The circumstances at issue in F4-278 are as follows. Colton Miller, who was on

      parole from a child molesting conviction, and his sister’s boyfriend, Cody

      Smith, who had warrants out for his arrest, were drinking at Miller’s apartment

      on the evening of October 2, 2014. Miller texted Jonathan Tipton, his friend, to

      join them. Tipton did join them, and after they had been drinking for some

      time, Tipton became angry when Miller answered a telephone call from a girl.

      The two men threw punches at each other and scuffled before Miller and Smith

      were able to remove Tipton from the apartment. Tipton then sent Miller

      threatening text messages. Smith left Miller’s apartment sometime later by

      exiting through a window after the two heard noises that sounded like someone

      was attempting to kick in the front door.


[4]   After being forcibly removed from Miller’s apartment, Tipton went to the

      apartment where his cousin, Barrus, was staying with Andrea Reynolds.

      Tipton told the two that Miller and Smith had jumped him and beat him at

      Miller’s apartment. Even though Barrus was on probation under FB-73, he,

      Tipton, and Reynolds left the apartment. Reynolds drove the three to Miller’s

      Court of Appeals of Indiana | Memorandum Decision 35A02-1605-CR-1170 | December 27, 2016   Page 2 of 9
      apartment in Tipton’s car to seek revenge. Reynolds parked the car near

      Miller’s apartment and waited while the two men left. After Barrus and Tipton

      exited the vehicle, Reynolds saw Smith run past the car.


[5]   Tipton was followed by Barrus, who carried either a metal pry bar or floor jack,

      through a window of Miller’s apartment where they proceeded to viciously

      attack Miller. Barrus struck Miller on the head with the metal bar, causing

      Miller to fall to the floor, and then Barrus and Tipton hit, stomped, and kicked

      Miller to the point that Miller thought that they were going to kill him.


[6]   Tipton and Barrus eventually left Miller’s apartment through the front door,

      rejoined Reynolds, and told her to quickly drive away from the area. Miller

      unsuccessfully attempted to clean up the blood and stop the bleeding from his

      wounds, eventually going to an emergency room with the help of his sister, who

      arrived at the apartment and saw his condition.


[7]   After Tipton, Barrus, and Reynolds returned to Reynolds’ apartment, the men

      bragged and laughed about what they had done to Miller. They then tried to

      hide evidence of what they had done by washing their clothes and hiding the

      metal bar in the garage. Later, Barrus cleaned the metal bar and took it back to

      his place of work from where he had taken it. Barrus and Tipton then had

      Reynolds agree to provide an alibi for them once the police began their

      investigation of the incident.


[8]   Treatment of Miller’s injuries included multiple stitches and staples. Miller

      suffered from great pain and memory loss after the beating. At first, police

      Court of Appeals of Indiana | Memorandum Decision 35A02-1605-CR-1170 | December 27, 2016   Page 3 of 9
       officers had difficulty locating Barrus and Tipton. Reynolds lied for them to the

       police until officers convinced her that the two were using her. Barrus also told

       his good friend Ron Smithley about what he and Tipton had done to Miller.

       Police officers learned about Smithley’s connection with Barrus.


[9]    Charges were filed against Tipton and Barrus, and, at the conclusion of Barrus’

       jury trial, he was found guilty of Level 1 felony burglary and level 5 felony

       battery. Barrus pleaded guilty to an habitual offender enhancement.


[10]   During Barrus’ sentencing hearing, the trial court, per the State’s request,

       reduced Barrus’ conviction of Level 5 felony battery to a class B misdemeanor

       conviction. The trial court also found that Barrus had violated the conditions of

       his probation in FB-73 and revoked his probation. In F4-278, the trial court

       sentenced Barrus to thirty-nine years’ incarceration for burglary and six months’

       incarceration for battery, to be served consecutively. The trial court imposed a

       sentence of eighteen years’ imprisonment to be served consecutively to the

       other counts for the habitual offender determination. With respect to FB-73,

       the trial court ordered Barrus to serve the remaining three years of his sentence

       in the Indiana Department of Correction to be served consecutively to Barrus’

       sentence in F4-278, and to Barrus’ sentences in Madison and Grant counties.

       Barrus now appeals his sentence contending that it is inappropriate in light of

       the nature of the offense and the character of the offender.


[11]   We note, and the State concedes, that the trial court erroneously imposed a

       sentence for the habitual offender determination in F4-278 without attaching


       Court of Appeals of Indiana | Memorandum Decision 35A02-1605-CR-1170 | December 27, 2016   Page 4 of 9
       the determination and sentence to one of Barrus’ convictions. Indiana Code

       section 35-50-2-8(j) (2014) provides that the habitual offender finding

       determines a defendant’s status. It is not a separate crime resulting in a

       consecutive sentence. Id. Instead, the trial court shall attach the habitual

       offender enhancement to the felony conviction with the highest sentence

       imposed. Id. On remand, the trial court should correct its order, attaching the

       sentence for the habitual offender status to Barrus’ burglary conviction in F4-

       278.


[12]   Additionally, Barrus does not challenge the sentence imposed for the revocation

       of his probation in FB-73. Appellate review of sentences imposed for probation

       revocations is for an abuse of discretion. Prewitt v. State, 878 N.E.2d 184 (Ind.

       2007). Indiana Code section 35-38-2-3(h)(3) (2012) authorizes a trial court

       upon finding that a condition of probation was violated to impose a sanction

       including ordering execution of all of the sentence that was suspended at the

       time of initial sentencing. That is exactly what the trial court did in this case.


[13]   Barrus complains that his sentence is inappropriate in light of the nature of the

       offense and the character of the offender because he was not the initial

       aggressor in the original fight between Tipton and Miller, and because he




       Court of Appeals of Indiana | Memorandum Decision 35A02-1605-CR-1170 | December 27, 2016   Page 5 of 9
                                                                1
[14]   received a longer sentence than Tipton’s.


[15]   We have the constitutional authority to revise a sentence if, after careful

       consideration of the trial court’s decision, we conclude the sentence is

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

       offender. See Ind. Appellate Rule 7(B); Anglemyer v. State, 868 N.E.2d 482 (Ind.

       2007), clarified on reh’g, 875 N.E.2d 218. Even if a trial court follows the

       appropriate procedure in arriving at its sentence, we maintain the constitutional

       power to revise a sentence we find inappropriate. Hope v. State, 834 N.E.2d 713

       (Ind. Ct. App. 2005). Although we are not required under Appellate Rule7(B)

       to be “extremely” deferential to a trial court’s sentencing decision, we recognize

       the unique perspective a trial court brings to such determinations. Rutherford v.

       State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). On appeal, Barrus bears the

       burden of persuading us that his sentence is inappropriate. Rutherford, 866

       N.E.2d 867. Indeed, he bears the burden of establishing that his sentence is

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

       Williams v. State, 891 N.E.2d 621 (Ind. Ct. App. 2008).


[16]   Under our review, the question is not whether another sentence would be more

       appropriate, but whether the sentence imposed is inappropriate. Foutch v. State,




       1
         Barrus attempts to include the sentence imposed for his probation revocation under FB-73 in our analysis of
       the appropriateness of his sentence in F4-278. As discussed above, sentences imposed for probation
       revocations are reviewed for an abuse of discretion. We decline to include the three-year sentence for FB-73
       in our analysis of the sentence for F4-278. Tipton’s direct appeal appears as Tipton v. State, No. 35A05-1511-
       CR-1986 (Ind. Ct. App. May 25, 2016).

       Court of Appeals of Indiana | Memorandum Decision 35A02-1605-CR-1170 | December 27, 2016           Page 6 of 9
       53 N.E.3d 577 (Ind. Ct. App. 2016). Whether the sentence imposed is

       inappropriate turns on many factors including the defendant’s culpability, the

       severity of the crime, and the damage done to others. Parks v. State, 22 N.E.3d

       552 (Ind. 2014).


[17]   Barrus was sentenced for his convictions of Level 1 felony burglary, enhanced

       by his status as an habitual offender, and Class B misdemeanor battery. The

       sentencing range for a Level 1 felony conviction is between twenty and forty

       years’ imprisonment with an advisory sentence of thirty years. Ind. Code § 35-

       50-2-4(b) (2014). Barrus received a sentence of thirty-nine years. The

       enhancement for his habitual offender status was a sentence of eighteen years.

       A court shall sentence a person found to be an habitual offender who has been

       convicted of a Level 1 through Level 4 felony to an additional fixed term

       between six and twenty years. Ind. Code § 35-50-2-8(i)(1)(2014). The

       sentencing range for a class B misdemeanor is a term of not more than one

       hundred eighty days. Ind. Code § 35-50-3-3 (1977). The trial court imposed

       one hundred eighty days for Barrus’ conviction of a class B misdemeanor.

       Barrus did not receive the maximum sentence that could have been imposed for

       his convictions and status.


[18]   Turning to the nature of the offenses, we note that Barrus and Tipton, his

       cousin, developed a plan to get revenge for what Tipton believed was

       mistreatment by Miller. They recruited Barrus’ girlfriend, Reynolds, to drive

       them to and from Miller’s apartment and to provide them with an alibi for the

       ensuing police investigation. Barrus armed himself with a metal bar and
       Court of Appeals of Indiana | Memorandum Decision 35A02-1605-CR-1170 | December 27, 2016   Page 7 of 9
       viciously beat Miller over the head with it after he and Tipton had broken into

       Miller’s apartment by way of an upstairs window very late in the night. Barrus

       and Tipton then hit, stomped, and kicked Miller, who was helpless and on the

       floor after being struck on the head with the bar. Miller suffered great pain and

       substantial injuries because of the beating.


[19]   Barrus hid the metal bar used by him in the beating, and police officers were

       unable to find it. Barrus and Tipton hid their involvement in the attack by

       washing the clothes they wore during the attack and having Reynolds provide

       them with alibis. Barrus and Reynolds also hid from police making it difficult

       for law enforcement to question them about their potential involvement.


[20]   The nature of the offense involves a violent, premeditated attack on an

       outnumbered and helpless victim. Evidence of the nature of the offense does

       not support a downward revision of Barrus’ sentence. See Grundy v. State, 38

       N.E.3d 675 (Ind. Ct. App. 2015) (nature of crime involving vicious attack on

       helpless victim did not support downward revision of sentence); Clark v. State,

       26 N.E.3d 615 (Ind. Ct. App. 2014) (premeditated nature of attack causing

       serious bodily injuries did not warrant downward revision of sentence).


[21]   As for the character of the offender, Barrus was on probation when he

       volunteered to help his cousin seek revenge for a prior encounter in which

       Barrus was not involved. Barrus chose to take a metal bar to the encounter and

       encouraged his girlfriend to drive him and Tipton to Miller’s apartment and

       back, and provide an alibi for them to police.


       Court of Appeals of Indiana | Memorandum Decision 35A02-1605-CR-1170 | December 27, 2016   Page 8 of 9
[22]   Barrus has a juvenile history and an adult criminal history. His adult criminal

       history involves convictions for battery, theft, and multiple burglaries. Further,

       in the pre-sentence investigation report, Barrus claimed that he reluctantly

       accompanied Tipton, his cousin, to Miller’s apartment and that it was Tipton

       who had brought the metal bar and used it to attack Miller. Miller, on the other

       hand, unequivocally identified Barrus as the attacker bearing the metal bar, a

       bar which came from Barrus’ place of employment, where he returned it to hide

       the evidence. At the sentencing hearing, Barrus maintained his innocence.

       This stands in contrast to his admission in the pre-sentence investigation report

       that he went to Miller’s apartment and participated in the beating of Miller.

       Barrus has a continuing disdain for abiding by the law, including lying in open

       court and/or to probation officers.


[23]   Barrus has not met his burden of persuading us that his sentence is

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

       offender.


[24]   Based on the foregoing, we affirm the trial court’s sentencing decision. We

       remand this matter to the trial court, however, for correction of the abstract of

       judgment to reflect that Barrus’ habitual offender determination attaches to his

       sentence for his Level 1 felony burglary conviction.


[25]   Judgment affirmed and remanded.


       Bradford, J., and Brown, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 35A02-1605-CR-1170 | December 27, 2016   Page 9 of 9
