MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                Oct 26 2016, 9:18 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                          Gregory F. Zoeller
Brownsburg, Indiana                                      Attorney General of Indiana
                                                         Paula J. Beller
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Timothy Weakley,                                         October 26, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1604-CR-739
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marc T.
Appellee-Plaintiff                                       Rothenberg, Judge
                                                         Trial Court Cause No.
                                                         49G02-1501-F3-3212



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-739 | October 26, 2016        Page 1 of 8
                                             Case Summary
[1]   Timothy Weakley appeals the sentence imposed by the trial court following his

      conviction for four counts of level 3 felony armed robbery and his adjudication

      as a habitual offender. The trial court sentenced Weakley to a fifty-eight-year

      aggregate sentence. Weakley contends that his sentence is inappropriate in

      light of the nature of the offenses and his character. Finding that Weakley has

      not met his burden to demonstrate that his sentence is inappropriate, we affirm.


                                 Facts and Procedural History
[2]   On January 25, 2015, Jamarlon King was working at the Family Dollar store

      on West 38th Street in Indianapolis. At approximately 9:30 a.m., Weakley

      entered the store and walked to the candy section. After picking up some

      candy, he walked to the register as if to be checked out. Instead, he threw the

      candy onto the cash register and pointed a handgun at King. Weakley said to

      King, “Give me the motherf**king money.” Tr. at 18. As King tried to open

      the cash register, Weakley ordered, “Hurry the f**k up, hurry the f**k up.” Id.

      King observed that Weakley was standing in a “shooter’s stance … with one leg

      back and one leg out like he was going to shoot.” Id. at 21. King dumped the

      contents of the register into a store bag. King thought that Weakley was going

      to shoot him before leaving the store. As Weakley walked out, he turned

      around and said to King, “You better not follow me bitch.” Id. Weakley left

      with approximately $168 from the store.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-739 | October 26, 2016   Page 2 of 8
[3]   At around 2:15 p.m. that same day, Kyana Booker was working as a cashier at

      the Dollar General store on North College Avenue. Weakley entered the store,

      pulled out a gun, and pointed it at Booker. Weakley called Booker a bitch and

      said, “If you don’t get the money out I’m gonna kill you.” Id. at 31. Booker

      gave Weakley the money, and he left the store with between $100 and $200.


[4]   Just before 8:00 p.m. that night, Calvin Bumphus was working as the assistant

      manager at the Burger King restaurant on North Illinois Street. Bumphus saw

      Weakley enter the restaurant and sit down in the dining area. Bumphus noticed

      that Weakley was carrying “a pop bottle and [a] yellow Dollar General bag.”

      Id. at 45. Weakley went into the restroom and then approached the counter

      and ordered a sandwich. Once the register “popped open,” Weakley pointed a

      gun in Bumphus’s face and said, “[G]ive me the money or I kill you.” Id. at 48.

      Bumphus backed away from the register, and Weakley reached in and grabbed

      everything out of the drawer, which amounted to about $40 or $50.


[5]   The next day, January 26, 2016, Kashinda Banks was working at the Family

      Dollar store on East 38th Street. At around 9:00 a.m., Weakley entered the

      store, selected some clothing items, and placed them on the counter to

      purchase. As Banks looked at Weakley, she felt that he was “evil” and “the

      way he cut his eyes at me it just didn’t feel right.” Id. at 61. After Banks

      scanned the items and told Weakley the total amount owed, Weakley pulled a

      gun out of his pocket, cursed at Banks, and told her to give him all the money

      in the drawer. Because Banks was so frightened, Weakley kept calling her “the



      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-739 | October 26, 2016   Page 3 of 8
      B word,” told her repeatedly to hurry, and threatened to hurt her if she did not

      comply. Banks handed Weakley approximately $106 in cash and coins.


[6]   Indianapolis Metropolitan Police Department Sergeant Paul Wilson responded

      to the robbery of the Family Dollar store where Banks worked. After viewing

      the video surveillance from the store which depicted Weakley committing the

      crime, Sergeant Wilson used his cell phone to take a still photograph of

      Weakley. Later that afternoon, Sergeant Wilson spotted Weakley walking.

      When Weakley noticed that Sergeant Wilson was following him, he took off

      running. Police set up a perimeter in the neighborhood and eventually located

      and apprehended Weakley. Sergeant Wilson brought Banks to the location

      where police had apprehended Weakley, and she positively identified Weakley

      as the person who robbed the store.


[7]   The State charged Weakley with four counts of level 3 felony armed robbery

      and one count of level 4 felony unlawful possession of a firearm by a serious

      violent felon. The State also charged Weakley with being a habitual offender.

      A jury trial was held on February 29 and March 1, 2016. The State dismissed

      the level 4 felony count, and the jury found Weakley guilty of four counts of

      level 3 felony robbery. Thereafter, Weakley pled guilty to being a habitual

      offender. Following a sentencing hearing, the trial court imposed consecutive

      terms of thirteen years for each level 4 felony conviction, and six years on the

      habitual offender enhancement, for an aggregate sentence of fifty-eight years.

      This appeal ensued.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-739 | October 26, 2016   Page 4 of 8
                                     Discussion and Decision
[8]   Weakley claims that his sentence is inappropriate and invites this Court to

      reduce his sentence pursuant to Indiana Appellate Rule 7(B) which provides

      that 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.” The defendant

      bears the burden to persuade this Court that his or her sentence is inappropriate.

      Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). 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 v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).

      The principal role of appellate review is to attempt to “leaven the outliers.” Id.

      at 1225. Appellate review “should focus on the forest—the aggregate

      sentence—rather than the trees—consecutive or concurrent, number of counts,

      or length of the sentence on any individual count.” Id. 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.


[9]   Regarding the nature of the offenses, the advisory sentence is the starting point

      the legislature has selected as an appropriate sentence for the crime committed.

      Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range for a level 3

      felony is between three and sixteen years, with an advisory sentence of nine

      years. Ind. Code § 35-50-2-5. Thus, not including the habitual offender

      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-739 | October 26, 2016   Page 5 of 8
       enhancement, Weakley faced a maximum possible sentence of sixty-four years’

       imprisonment for his four level 3 felony robbery convictions. The trial court

       chose to impose consecutive terms of thirteen years on each count, resulting in

       a combined sentence of fifty-two years. Due to Weakley’s guilty plea to the

       habitual offender charge, the trial court imposed the minimum possible term of

       six years for the habitual offender enhancement, resulting in an aggregate term

       of fifty-eight years. 1


[10]   Weakley has not demonstrated that a reduction in his sentence is warranted

       based upon the nature of the offenses. To the extent Weakley argues that

       consecutive and/or enhanced sentences are inappropriate here, we disagree as

       the existence of multiple crimes and victims justifies the imposition of

       consecutive and enhanced sentences. See Serino v. State, 798 N.E.2d 852, 857

       (Ind. 2003) (noting that enhanced and consecutive sentences “seem necessary to

       vindicate the fact that there were separate harms and separate acts against more

       than one person”). Still, Weakley maintains that the nature and circumstances

       of his offenses “were not unusually heinous.” Appellant’s Br. 13. Be that as it

       may, the nature and circumstances of his offenses were not unusually minor

       either. Weakley, while armed with a deadly weapon, not only took property

       from four different people by threatening the use of force or putting them in fear




       1
        The sentencing range for the habitual offender enhancement is between six and twenty years for a person
       convicted of murder or a level 1 through level 4 felony. Ind. Code § 35-50-2-8(i)

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-739 | October 26, 2016          Page 6 of 8
       as required by statute, he did both. 2 Each of his victims testified at trial and

       recounted how Weakley pointed a gun right in their faces and how that put

       them in fear. Three of his victims stated that he also verbally threatened to kill

       them if they refused to comply with his demands for money. Under the

       circumstances, Weakley has failed to convince us that we should not defer to

       the trial court’s determination of an appropriate aggregate sentence.


[11]   Weakley’s character does not warrant a different result. When considering the

       character of the offender, one relevant consideration is the defendant’s criminal

       history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007).

       Weakley’s extensive criminal history began with a larceny conviction more

       than twenty-eight years ago in Michigan. He has been convicted countless

       times since then, at least ten of those convictions involving felonies. He was on

       parole for felony burglary when he committed the current offenses. Although

       Weakley argues that he accepted responsibility for his current crimes by

       voluntarily surrendering to police and giving a full confession, we note that the

       record belies his assertions and indicates that he initially ran from police to

       avoid capture, and that he further initially denied committing the robberies until

       confronted with video evidence. Weakley also points to his alleged post-

       traumatic stress disorder diagnosis, his troubled childhood, his substance abuse,

       and his expressed remorse as reasons for leniency. However, it was within the



       2
        “A person who knowingly or intentionally takes property from another person or from the presence of
       another person (1) by using or threatening the use of force on any person; or (2) by putting any person in fear;
       commits robbery, a Level 5 felony.” Ind. Code § 35-42-5-1. The offense becomes “a Level 3 felony if it is
       committed while armed with a deadly weapon ….” Id.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-739 | October 26, 2016              Page 7 of 8
       trial court’s discretion to consider these factors in tailoring a sentence, and

       under the circumstances presented, Weakley has not met his burden to

       demonstrate that the aggregate sentence imposed here is inappropriate.

       Accordingly, we affirm.


[12]   Affirmed.


       Kirsch, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-739 | October 26, 2016   Page 8 of 8
