Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
                                                             FILED
                                                           Oct 10 2012, 9:16 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the                         CLERK
                                                                of the supreme court,
law of the case.                                                court of appeals and
                                                                       tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

DAVID W. STONE                                   GREGORY F. ZOELLER
Anderson, Indiana                                Attorney General of Indiana

                                                 RICHARD C. WEBSTER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

PARIS KNOX,                                      )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 48A02-1203-CR-214
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE MADISON CIRCUIT COURT
                         The Honorable Rudolph R. Pyle, III, Judge
                              Cause No. 48C01-1101-FB-111




                                      October 10, 2012



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                  Case Summary and Issues

          Following a guilty plea, Paris Knox was convicted of unlawful possession of a

firearm by serious violent felon (“unlawful possession”), a Class B felony, and sentenced

to fifteen years. Knox appeals his sentence, raising two issues for our review: whether

the trial court abused its discretion in sentencing Knox, and whether Knox’s sentence is

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

court did not abuse its discretion and Knox waived appellate review of the

appropriateness of his sentence, but in any case his sentence is not inappropriate, we

affirm.

                                Facts and Procedural History

          Knox and his cousin, Devin Benford, had a dispute over money that Knox claimed

Benford owed to him. On January 5, 2011, Knox and Benford exchanged words. That

evening, Benford answered his apartment door and Knox entered carrying a forty-five

caliber handgun. Knox struck Benford in the head with the handgun. A struggle ensued,

and Benford was able to push Knox out the door and lock it. Benford heard several

gunshots outside his door. When police arrived, they found a vehicle sitting in front of

Benford’s residence with bullet holes in it and recovered two spent and two live forty-

five caliber shell casings. Benford identified Knox as the man who was at his apartment

and struck him with the handgun.

          Police went to Knox’s apartment and recovered a forty-five caliber semi-automatic

handgun. Forensic analysts determined that Knox’s fingerprints were on the handgun

and that the handgun had fired the spent shell casings. Knox claimed the handgun fired


                                              2
when he used the gun, presumably as a blunt instrument, to break the vehicle’s windows

and then when he tried to clear a jammed round.

      The State charged Knox with Class B felony unlawful possession, Class C felony

battery by means of a deadly weapon, Class D felony pointing a firearm at another

person; and Class D felony criminal recklessness. Knox pleaded guilty to unlawful

possession; the sentence was left open to the trial court. In return for Knox’s plea, the

State agreed to dismiss the remaining charges.

      Before his unlawful possession plea, Knox’s criminal history included a 2003

Class A misdemeanor for resisting law enforcement, 2004 Class A misdemeanor for

possession of marijuana, 2004 Class A misdemeanor for carrying a handgun without a

license, 2005 Class D felony for intimidation, a 2006 Class B felony for dealing cocaine,

and a 2006 Class B felony for conspiracy to commit dealing cocaine. Knox also had two

violations of probation and one revocation of probation.

      On February 22, 2012, the trial court held a sentencing hearing. The trial court

determined that Knox’s “extensive criminal history,” including his prior commitments to

the Department of Correction and probation violations, was an aggravating factor.

Transcript at 30. The trial court also recognized Knox’s guilty plea and acceptance of

responsibility as mitigating factors.   After determining that the aggravating factor

outweighed the mitigating factors, the trial court imposed an enhanced sentence of fifteen

years. Knox now appeals his sentence.




                                            3
                                 Discussion and Decision

                          I. Abuse of Discretion in Sentencing

                                 A. Standard of Review

       Sentencing decisions lie within the discretion of the trial court and are reviewed on

appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

2007), clarified on reh’g, 875 N.E.2d 218. “An abuse of discretion occurs if the decision

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

the reasonable, probable, and actual deductions to be drawn therefrom.” Id. (quotation

and citation omitted).   A trial court may abuse its discretion by failing to enter a

sentencing statement, entering findings of aggravating and mitigating factors unsupported

by the record, omitting factors clearly supported by the record and advanced for

consideration, or giving reasons that are improper as a matter of law. Id. at 490-91.

However, “[t]he relative weight or value assignable to reasons properly found or those

which should have been found is not subject to review for abuse.” Id. at 491.

               B. Sentencing Pursuant to the Advisory Sentencing Scheme

       Knox, previously convicted of dealing cocaine and conspiracy to commit dealing

cocaine in Indiana, possessed a firearm, thus committing Class B felony unlawful

possession, to which he pleaded guilty. See Ind. Code § 35-47-4-5(c). “A person who

commits a Class B felony shall be imprisoned for a fixed term of between six (6) and

twenty (20) years, with the advisory sentence being ten (10) years.” Ind. Code § 35-50-2-

5. Finding that Knox’s criminal history as an aggravating factor outweighed his guilty

plea and acceptance of responsibility as mitigating factors, the trial court imposed an

enhanced sentence of fifteen years.
                                             4
       Knox first argues that the trial court abused its discretion in relying upon his

criminal history as a significant aggravating factor because his criminal record differs in

both nature and gravity from his current unlawful possession conviction. If a trial court

uses aggravating or mitigating factors to enhance the presumptive sentence, it must

identify all significant mitigating and aggravating factors. Patterson v. State, 846 N.E.2d

723, 727 (Ind. Ct. App. 2006). Significance varies based on the gravity, nature, and

number of prior offenses as they relate to the current offense. Wooley v. State, 716

N.E.2d 919, 929 n.4 (Ind. 1999) (explaining that a prior conviction for operating a

vehicle while intoxicated has more significance at a sentencing hearing for a subsequent

alcohol-related offense than for murder). There is no requirement that a criminal history

be violent, Allen v. State, 722 N.E.2d 1246, 1253 (Ind. Ct. App. 2000), or contain felony

convictions, see McNew v. State, 822 N.E.2d 1078, 1081 n.5 (Ind. Ct. App. 2005).

       Knox’s criminal history shows a pattern of disregarding the law.         Since age

eighteen in 2003, Knox has accumulated three felony convictions, three misdemeanor

convictions, two violations of probation, and one revocation of probation.           Knox

analogizes his case to Harris v. State, 897 N.E.2d 927 (Ind. 2008), and Westmoreland v.

State, 787 N.E.2d 1005 (Ind. Ct. App. 2003); however, neither case applies. In Harris,

the court determined that two theft felonies and various traffic violation misdemeanors

were “manifestly different in nature and gravity” from felony child molestation. 897

N.E.2d at 930. In Westmoreland, the court noted that a criminal record of misdemeanors,

“devoid of evidence that [a] prior battery conviction [was] related in kind to the instant

case,” was not a significant aggravator in the context of criminal deviate conduct. 787

N.E.2d at 1010. However, in this case, Knox’s convictions do relate to his Class B
                                            5
felony unlawful possession in both gravity and nature. Knox has three other felony

convictions; further, his convictions for resisting law enforcement, carrying a handgun

without a license, intimidation, and dealing cocaine/conspiracy relate to violence and

firearms.

        Second, Knox argues that the trial court abused its discretion in considering his

2006 Class B felony convictions as predicates for his present unlawful possession

conviction and also as aggravating factors to enhance his sentence. 1                     Knox’s argument

fails for two reasons. First, it only takes one qualifying conviction to attain the status of a

serious violent felon; Knox has two such convictions: dealing cocaine and conspiracy to

commit dealing cocaine. See Ind. Code § 35-47-4-5. Even if Knox were correct, one

conviction could be used as the predicate for the serious violent felon status 2 and the

other as an aggravating factor. Second, the same qualifying conviction that is used as the

predicate for a unlawful possession conviction may also be used as an aggravating factor

from the criminal record. Stokes v. State, 947 N.E.2d 1033, 1037 (Ind. Ct. App. 2011),

trans. denied.

        Third, Knox argues that he failed to receive a substantial benefit for his guilty

plea. Although “not every plea of guilty is a significant mitigating circumstance that

must be credited by a trial court,” Trueblood v. State, 715 N.E.2d 1242, 1257 (Ind. 1999),

cert. denied, 121 S.Ct. 143 (2000), here the trial court treated Knox’s guilty plea as a

mitigating factor. Further, in return for Knox’s plea, the State dismissed the three other


        1
            Knox lumps his 2006 convictions for dealing cocaine and conspiracy to commit dealing cocaine as a
singular “cocaine felony drug offense” however, such convictions are distinct felonies. Brief of Appellant at 5.
        2
           Although Knox’s Class D felony of intimidation does not qualify as a serious violent felony under
Indiana Code section 35-47-4-5, both of his Class B felonies qualify.
                                                       6
felony charges. Such dismissal substantially benefitted Knox because it reduced the

possible sentence that could be imposed on him.

       Therefore, the trial court did not abuse its discretion in imposing the fifteen-year

sentence on Knox.

                                II. Inappropriate Sentence

                                    A. Standard of Review

       A reviewing court may revise a sentence “if, after due consideration of the trial

court’s decision, [it] 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).

                       B. Nature of Knox’s Offense and Character

       We first note that Knox waived appellate review of the appropriateness of his

sentence.   The burden is on the defendant to demonstrate that his sentence is

inappropriate in light of both the nature of his offense and his character. Williams v.

State, 891 N.E.2d 621, 623 (Ind. Ct. App. 2008) (noting that it would be within the

court’s discretion to determine that the defendant had waived review under Appellate

Rule 7(B) because the defendant failed to present a cogent argument regarding

inappropriateness in light of his character); see also Ford v. State, 718 N.E.2d 1104, 1107

n.1 (Ind. 1999) (finding waiver).

       Knox recites the standard for appellate review under Appellate Rule 7(B) but fails

to make an argument why his sentence is inappropriate in light of his character. Instead,

Knox focuses only on the propriety of the trial court’s use of his criminal record as it

relates in nature to his current crime and the “routine” and “[un]remarkable” nature of his


                                             7
crime. Br. of Appellant at 3, 7. Therefore, Knox has waived his request for review under

Appellate Rule 7(B).

       Even if Knox had properly requested review under Rule 7(B), his sentence is not

inappropriate. While committing the offense, Knox hit Benford in the head with the

handgun and, after Benford pushed Knox out of his apartment, shot a vehicle sitting in

front of the residence. As previously discussed, Knox’s criminal record shows a pattern

of disrespect for the law. Since his first arrest at age eighteen, less than ten years ago,

Knox has been convicted of three felonies and three misdemeanors. Thus, in light of the

nature of his offense and his character, Knox’s sentence is not inappropriate.

                                        Conclusion

       We conclude the trial court did not abuse its discretion in sentencing Knox and

although Knox waived appellate review of the appropriateness of his sentence, his

fifteen-year sentence is not inappropriate. Therefore, we affirm.

       Affirmed.

BAKER, J., and BRADFORD, J., concur.




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