Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                             FILED
                                                           Feb 11 2013, 8:29 am
court except for the purpose of
establishing the defense of res judicata,                         CLERK
collateral estoppel, or the law of the case.                    of the supreme court,
                                                                court of appeals and
                                                                       tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

JEREMY M. NOEL                                   GREGORY F. ZOELLER
Bloomington, Indiana                             Attorney General of Indiana

                                                 JOSEPH Y. HO
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                               IN THE
                    COURT OF APPEALS OF INDIANA

THOMAS OAKLEY,                                   )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 53A01-1204-CR-148
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE MONROE CIRCUIT COURT
                         The Honorable Marc R. Kellams, Judge
                            Cause No. 53C02-1111-FC-1099


                                     February 11, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Defendant, Thomas Oakley (Oakley), appeals his sentence following a

guilty plea to carrying a handgun without a license, a Class C felony, Ind. Code §§ 35-47-

2-1, -2-3(C)(2).

       We affirm.

                                           ISSUE

       Oakley raises one issue on appeal, which we restate as: Whether his sentence was

appropriate in light of his character and the nature of the offense.

                        FACTS AND PROCEDURAL HISTORY

       On November 9, 2011, while under the influence of heroin and methamphetamine,

Oakley argued with his pregnant girlfriend, Tiffany Purtlebaugh (Purtlebaugh), outside a

residence on West Eight Street in Bloomington, Indiana. Oakley, who was carrying his

handgun, fired several shots in the air, down the street, and then pointed the gun at the

heads of Purtlebaugh’s mother and brother, stating “I have a whole other clip.”

(Appellant’s App. p. 9). Oakley and Purtlebaugh then got into a vehicle and drove away.

       Police officers were able to locate Oakley via information from a local cellular

phone tower. When they pulled in behind Oakley’s car, he sped away, ignoring the

officers’ commands to stop. He eventually stopped the car and was placed under arrest.

       On November 14, 2011, the State filed an Information charging Oakley with

Count I, intimidation, a Class C felony, I.C. §§ 35-45-2-1(a)(2), -1(b)(2); Count II,

carrying a handgun without a license, a Class C felony, I.C. §§35-47-2-1, -23(c)(2);



                                              2
Count III and IV, pointing a firearm, a Class D felonies, I.C. § 35-47-4-3(b); Count V,

criminal recklessness, a Class D felony, I.C. §§ 35-42-2-2(b)(1), -2(c)(2)(A); and Count

VI, resisting law enforcement, a Class D felony, I.C. § 35-44-3-3(a)(3), -3(b)(1)(A). That

same day, the State filed a notice of intent to seek an enhanced penalty based upon a prior

conviction. On January 13, 2012, Oakley entered into a plea agreement with the State,

agreeing to plead guilty to Count II, carrying a handgun without a license in exchange for

the dismissal of the other charges. The plea agreement specified that the sentence would

carry a cap of five years. On February 8, 2012, the trial court sentenced Oakley to five

years executed.

       Oakley now appeals. Additional facts will be provided as necessary.

                            DISCUSSION AND DECISION

       Oakley contends that his five–year sentence is inappropriate considering his

character and the nature of the offense. Here, Oakley was sentenced to a Class C felony,

which carries a fixed term of between two and eight years, with the advisory sentence

being four years. See I.C. § 35-50-2-6. As such, Oakley’s sentence falls within the

statutory guidelines.

       Pursuant to Indiana Appellate Rule 7(B), this 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. Ind. Appellate Rule 7(B). In performing our review, we assess

“the culpability of the defendant, the severity of the crime, the damage done to others,

and a myriad of other factors that come to light in a given case.” Cardwell v. State, 895


                                            3
N.E.2d 1219, 1224 (Ind. 2008). A defendant “must persuade the appellate court that his

or her sentence has met the inappropriateness standard of review.” Anglemyer v. State,

868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).

       With respect to Oakley’s character, we note that at the time of the instant offense,

Oakley was twenty-nine years old and had already accumulated an extensive criminal

history. Within the last twelve years, he has received eleven convictions, including five

felonies ranging from theft and battery to dealing in controlled substances. Each time

Oakley was placed on probation, he violated it. In fact, he had recently been released

from prison in July 20111 and was placed on probation for dealing controlled substances,

a Class B felony, when he began using again in September of 2011 and committed the

current offense.

       Oakley now asserts that he felt overwhelmed after his girlfriend became pregnant

and started abusing illegal substances again.               Unable to handle the additional

responsibility of a child, he purchased the handgun from “a roadside produce vendor” and

intended to commit suicide. (Appellant’s App. p. 9). However, his words ring hollow as

he clearly was not turning the handgun on himself; rather, he brandished the weapon at

his pregnant girlfriend while “really drugged up,” firing into the air, as well as pointing

the gun at the heads of his girlfriend’s mother and brother. (Sent. Transcript p. 9).

       Although we acknowledge that at some point, Oakley attempted to seek help from

his probation officer, he failed to follow his probation officer’s suggestion to enroll in


1
 However, Oakley asserted during the sentencing hearing that his actual release date had been in April
2011.


                                                  4
treatment with an outpatient provider until securing a place at an intensive inpatient

rehabilitation program.

       Turning to the nature of the crime, we note that Oakley put his pregnant girlfriend

in harm’s way, endangered her family and the public by firing in the air, and engaged the

police in a dangerous vehicle pursuit.

       In sum, Oakley’s addiction, destructive behavior, and disregard for the criminal

justice system as is evidenced by his probation violations, warrant the sentence imposed

by the trial court. Thus, we cannot conclude that the five-year executed sentence is

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

                                      CONCLUSION

       Based on the foregoing, we conclude that Oakley’s sentence is appropriate in light

of his character and nature of the offense.

       Affirmed.

BAKER, J. and BARNES, J. concur




                                              5
