MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                              FILED
regarded as precedent or cited before any                                 Apr 19 2018, 9:44 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
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Lee M. Stoy, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Gary L. Sears, Jr.,                                      April 19, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         61A01-1711-CR-2648
        v.                                               Appeal from the Parke Circuit
                                                         Court
State of Indiana,                                        The Honorable Sam A. Swaim,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         61C01-1611-F1-357



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 61A01-1711-CR-2648 | April 19, 2018             Page 1 of 10
[1]   Gary L. Sears, Jr., appeals his sentence for burglary as a level 1 felony and two

      counts of criminal confinement as level 3 felonies. Sears raises one issue which

      is whether his sentence is inappropriate in light of the nature of the offense and

      his character. We affirm Sears’s aggregate sentence but remand with

      instructions that the trial court attach his habitual offender enhancement to his

      sentence for burglary as a level 1 felony.


                                      Facts and Procedural History

[2]   On November 9, 2016, Sears and Katrina Cottrell broke into the dwelling of

      Edgar and Mildred Crooks with the intent to commit theft resulting in serious

      bodily injury to Edgar, and while armed with a deadly weapon confined the

      Crooks. Edgar and Mildred, who were ninety years old, were asleep in bed in

      their house in Parke County and awoke to Sears standing over Edgar holding a

      metal bar and Cottrell standing over Mildred holding a hatchet. Sears asked

      Edgar how to open the safe, and Edgar replied that he did not know. Sears

      struck Edgar’s head with the bar which caused Edgar to bleed. Sears tied

      Mildred’s wrists together with duct tape.


[3]   Sears and Cottrell ransacked the Crooks’ house, raked everything off the shelf

      in the closet and the nightstand including the lamp, hearing aids, glasses, and

      phone, pulled the landline phone out of the jack in the wall, dumped the

      contents of Mildred’s sewing box and all of the dresser drawers on the floor,

      broke the glass in a cabinet and in a coffee table, pulled the thermostat off the

      wall, punched a hole in a hallway wall, broke one of the lights and the glass


      Court of Appeals of Indiana | Memorandum Decision 61A01-1711-CR-2648 | April 19, 2018   Page 2 of 10
      bulb in the bedroom ceiling fan, and took the television, all of the Crooks’

      medications, Edgar’s billfold and watches, and Mildred’s jewelry, purse,

      billfold, debit card, and a personal check.1 Sears and Cottrell moved the safe to

      the garage but could not move it into their vehicle.


[4]   After Sears and Cottrell left the Crooks’ house, Edgar and Mildred found a

      mobile phone which Sears and Cottrell had not discovered and called 911.

      Edgar lost a significant amount of blood and passed out, and was taken by

      ambulance to Union Hospital in Terre Haute and later, due to his head injury,

      was transferred to Methodist Hospital in Indianapolis. He suffered a

      concussion and received stiches to close the wound on his head. Sears and

      Cottrell later used Mildred’s debit card multiple times.


[5]   The State charged Sears as amended with: Count I, burglary resulting in serious

      bodily injury to Edgar Crooks as a level 1 felony; Count II, robbery resulting in

      serious bodily injury as a level 2 felony; Count III, criminal confinement of

      Mildred Crooks while armed with a deadly weapon as a level 3 felony; Count

      IV, identity deception as a level 6 felony; Count V, armed robbery as a level 3

      felony; and Count VI, criminal confinement of Edgar Crooks while armed with

      a deadly weapon as a level 3 felony. The State also alleged that Sears was an

      habitual offender. Sears and the State entered into an agreement pursuant to




      1
       The personal check was later recovered, and Mildred testified “[t]hey wrote a check for $1,200.00 or
      $12,000.00 and had my name signed at the bottom,” and when asked if she recalled which amount was
      written on the check, she answered “[t]hey had $1,200.00 one way and $12,000.00 the other way.” State’s
      Exhibit 4 at 35.

      Court of Appeals of Indiana | Memorandum Decision 61A01-1711-CR-2648 | April 19, 2018         Page 3 of 10
      which Sears agreed to plead guilty to Counts I, III, and VI and to admit to

      being an habitual offender and the State agreed to dismiss the remaining counts

      and to recommend that the sentences on Counts I, III, and VI be served

      concurrently. The agreement provided that Sears’s maximum possible sentence

      was sixty years. Sears pled guilty to burglary as a level 1 felony and two counts

      of criminal confinement as level 3 felonies pursuant to the agreement and

      admitted to being an habitual offender.


[6]   Following a sentencing hearing, the court found the following aggravating

      circumstances: the harm, injury, loss or damage suffered by the victims was

      significant and greater than the elements necessary to prove the offense; Sears

      has a history of delinquent or criminal activity; and he was out on release from

      pending felony charges. The court found the following mitigating

      circumstances: Sears’s claimed remorse and his plea of guilty. It sentenced him

      to thirty-eight years for his conviction for burglary as a level 1 felony under

      Count I and thirteen years for each of his convictions for criminal confinement

      under Counts III and VI, ordered the sentences under Counts I, III, and VI be

      served concurrently, sentenced Sears to seventeen years for being an habitual

      offender, and ordered that the habitual offender sentence be served consecutive

      to the sentence imposed under Counts I, III, and VI, for an aggregate sentence

      of fifty-five years.


                                                  Discussion

[7]   The issue is whether Sears’s aggregate sentence is inappropriate in light of the

      nature of the offense and his character. Ind. Appellate Rule 7(B) provides that
      Court of Appeals of Indiana | Memorandum Decision 61A01-1711-CR-2648 | April 19, 2018   Page 4 of 10
      we “may revise a sentence authorized by statute if, after due consideration of

      the trial court’s decision, [we find] that the sentence is inappropriate in light of

      the nature of the offense and the character of the offender.” Under this rule, the

      burden is on the defendant to persuade the appellate court that his or her

      sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[8]   Sears argues that his fully executed fifty-five year sentence is inappropriate in

      light of the nature of the offense but particularly in light of his character. He

      acknowledges that he seriously injured Edgar and that the burglary was more

      egregious than a routine home invasion but argues that the egregiousness was

      accounted for in the elevation of the burglary to the most serious felony level.

      He also argues that he repeatedly expressed sincere remorse for his actions, he

      endured a difficult childhood, he developed a substance addiction and his prior

      convictions were a result of the addiction, and that he was using

      methamphetamine when he committed the instant crimes.


[9]   The State maintains that Sears has failed to show his sentence is inappropriate.

      It argues that Sears bashed Edgar over the head with a metal pipe resulting in

      Edgar sustaining a skull fracture and profuse bleeding, tied up Mildred with

      duct tape, ransacked the Crooks’ home, and took their belongings. It argues

      that the crimes forced the elderly couple to move out of their home and have

      caused them anxiety. The State further argues that the trial court considered

      Sears’s remorse and guilty plea in sentencing him and that his guilty plea

      appeared to be pragmatic. The State also contends that Sears’s numerous



      Court of Appeals of Indiana | Memorandum Decision 61A01-1711-CR-2648 | April 19, 2018   Page 5 of 10
       encounters with the criminal justice system have not caused him to reform his

       behavior.


[10]   A person who commits a level 1 felony shall be imprisoned for a term of

       between twenty and forty years with the advisory sentence being thirty years,

       Ind. Code § 35-50-2-4. A person who commits a level 3 felony shall be

       imprisoned for a term of between three and sixteen years with the advisory

       sentence being nine years, Ind. Code § 35-50-2-5. The court shall sentence a

       person found to be an habitual offender to an additional nonsuspendible term

       that is between six and twenty years for a person convicted of a level 1 felony,

       Ind. Code § 35-50-2-8. The court sentenced Sears to concurrent terms of thirty-

       eight years for burglary as a level 1 felony and thirteen years for his criminal

       confinement convictions as level 3 felonies, and to an additional seventeen

       years for being an habitual offender for an aggregate sentence of fifty-five years,

       consistent with the plea agreement.


[11]   Our review of the nature of the offenses reveals that the Crooks awoke to

       observe Sears and Cottrell standing over them and Sears demanding access to

       the safe. Sears struck Edgar on the head with a metal bar and tied Mildred’s

       hands using duct tape. Sears and Cottrell ransacked the Crooks’ house, broke

       furniture, attempted to take their safe, and took their television, jewelry,

       watches, medications, and billfolds as well as a debit card and check. The court

       admitted evidence at sentencing of Edgar’s head injury and bleeding, the

       damage caused to the Crooks’ property, and the impact of the crimes on the

       Crooks. The Crooks’ daughter testified that she was shocked at the amount of

       Court of Appeals of Indiana | Memorandum Decision 61A01-1711-CR-2648 | April 19, 2018   Page 6 of 10
       blood congealed on her parents’ bed, her parents’ home was in shambles, her

       parents could not face going back to their home because it was in shambles and

       due to the terror they experienced there, her parents moved in with her for a

       couple of months and now stay in one of her brother’s homes, and she watched

       her ninety-year-old father deal with the symptoms of a concussion including

       another trip to the emergency room by ambulance. She testified that her

       parents are very paranoid about locking all the doors in their home and that her

       mother still has nightmares and, at age ninety-one, had to start taking an anti-

       depressant. According to the probable cause affidavit, police were able to

       identify Sears and Cottrell based on their use of Mildred’s debit card at multiple

       locations and later discovered items taken from the Crooks’ residence in their

       vehicle.


[12]   Our review of the character of the offender reveals that Sears pled guilty to

       Counts I, III, and VI and the State dismissed the remaining counts. According

       to the presentence investigation report (the “PSI”), Sears’s criminal history

       includes possession of a schedule I, II, III, or IV controlled substance as a

       juvenile in 2008; burglary as a felony in Illinois in 2012; possession of

       methamphetamine as a felony in Illinois in 2013; and the unlawful sale of a

       precursor as a level 6 felony in 2015. The PSI indicates that Sears had pending

       charges in Clay County, Indiana, for possession of methamphetamine and the

       unlawful possession of a syringe as level 6 felonies and possession of a

       controlled substance as a class A misdemeanor. The PSI states that Sears

       reported that about eighty percent of his friends have been in trouble with the


       Court of Appeals of Indiana | Memorandum Decision 61A01-1711-CR-2648 | April 19, 2018   Page 7 of 10
       law, that Sears obtained his GED in 2008 and was unemployed and homeless

       at the time of his arrest, and that Sears reported he is in poor health, suffers

       from type 1 diabetes and takes insulin, attempted suicide six or seven years ago,

       started drinking alcohol when he was twelve years old, started using

       methamphetamine when he was thirteen years old, was clean for about three

       years until his relapse, and uses methamphetamine daily when using. It states

       that Sears attended substance abuse treatment once in Illinois in 2012.


[13]   Sears testified that he has used methamphetamine since he was thirteen years

       old, he considered himself to be addicted to methamphetamine, he was clean

       for three years but relapsed when he split up with his children’s mother, and he

       was using methamphetamine on the date of the crimes. He also testified his

       father was an alcoholic. He stated that he could still hear Mildred’s screams

       and see the look on Edgar’s face, that the crimes would not have occurred if he

       had not been in a drug-induced state of mind, that he knows that is no excuse

       for his heinous crimes and he accepts full responsibility, and that he was

       sorrowful for the traumatizing effect his actions had on the victims.


[14]   The trial court found that the harm, injury, loss or damage suffered by the

       victims was significant and greater than the elements necessary to prove the

       offense and noted “[w]hat I’m primarily talking about is not only, for instance,

       on Count I where the defendants injured during the burglary but the house was

       ransacked and wrecked unnecessarily just out of meanness, spite. There was no

       reason to do that.” Transcript Volume 2 at 43-44. The court noted Sears’s

       criminal history and pending charge in Clay County as outlined in the PSI and

       Court of Appeals of Indiana | Memorandum Decision 61A01-1711-CR-2648 | April 19, 2018   Page 8 of 10
       that the victims were ninety years old at the time of the crimes. The court

       further stated that it did not find any significant mitigating circumstances and

       that it thought the Department of Correction could address Sears’s health

       concerns. With respect to his addiction, the court stated “those are things that

       should have been addressed before something like this occurred and, in fact, the

       defendant had been provided opportunities for probation before to address

       those issues.” Id. at 44. The court noted that Sears’s expressed remorse and

       that “unfortunately for no apparent reason you decided to break into [the

       Crooks’] home just for some money or items, trinkets, and some of their jewelry

       and so forth that were important to them, but it just seems unnecessary to have

       done what you have done. It seems callous and cruel.” Id. at 45. The court

       also considered Sears’s guilty plea and noted that there was overwhelming

       evidence of his guilt, that the counts against him could have been run

       consecutively, and that he was facing significant time and received a benefit by

       his plea.


[15]   The PSI also indicates that Sears’s overall risk assessment score using the

       Indiana risk assessment system places him in the very high risk to reoffend

       category. After due consideration, we conclude that Sears has not sustained his

       burden of establishing that his aggregate sentence is inappropriate in light of the

       nature of the offense and his character.


[16]   While we affirm Sears’s aggregate sentence, we observe that the trial court

       erroneously entered a separate seventeen-year sentence for the habitual offender

       finding to be served consecutive to the sentences for his convictions under

       Court of Appeals of Indiana | Memorandum Decision 61A01-1711-CR-2648 | April 19, 2018   Page 9 of 10
       Counts I, III, and VI.2 An habitual offender finding does not constitute a

       separate crime, nor does it result in a separate sentence. See Ind. Code § 35-50-

       2-8. Rather, an habitual offender finding results in a sentence enhancement

       imposed upon the conviction of a subsequent felony. Hendrix v. State, 759

       N.E.2d 1045, 1048 (Ind. 2001). The trial court shall attach the habitual

       offender enhancement to the felony conviction with the highest sentence

       imposed and specify which felony count is being enhanced. Ind. Code § 35-50-

       2-8. We remand with instructions that the trial court vacate the separate

       sentence on the habitual offender finding and attach the enhancement to Sears’s

       sentence for burglary as a level 1 felony under Count I and amend the

       sentencing order accordingly.3


                                                          Conclusion

[17]   For the foregoing reasons, we affirm Sears’s aggregate sentence and remand for

       the trial court to attach the habitual offender enhancement to Sears’s sentence

       for burglary as a level 1 felony.


[18]   Affirmed and remanded.

[19]   Bailey, J., and Crone, J., concur.




       2
        The trial court’s sentencing order states: “As to the habitual offender finding, the Court sentences the
       defendant to the Indiana Department of Correction for a period of 17 years. Said sentence shall be served
       consecutively to sentence imposed under Counts I, III and VI.” Appellant’s Appendix at 66. Similarly, the
       chronological case summary indicates, with respect to the habitual offender finding, the following:
       “Consecutive with Prior Sentence: Counts I, III & VI.” Id. at 11.
       3
           This will not impact the length of Sears’s aggregate sentence of fifty-five years.


       Court of Appeals of Indiana | Memorandum Decision 61A01-1711-CR-2648 | April 19, 2018         Page 10 of 10
