MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                               Oct 04 2017, 7:48 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
Brian A. Karle                                           Curtis T. Hill, Jr.
Ball Eggleston, PC                                       Attorney General of Indiana
Lafayette, Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael J. Jackson Jr.,                                  October 4, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A04-1703-CR-660
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Steven P. Meyer,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause Nos.
                                                         79D02-1607-F5-107
                                                         79D02-1609-F2-26



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-660 | October 4, 2017            Page 1 of 12
                                             Case Summary
[1]   Facing charges under three separate causes, Michael J. Jackson Jr. pled guilty

      pursuant to a single plea agreement to four felony offenses. Sentencing was left

      to the trial court’s discretion, and the trial court sentenced him to an aggregate

      term of twenty years. In this consolidated appeal, Jackson challenges the

      portion of his sentence attributable to the offenses in one of the three causes,

      arguing that his sentence is inappropriate in light of the nature of the offenses

      and his character. He also contends that the probation condition restricting him

      from entering a liquor store is unconstitutionally vague. As a preliminary

      matter, we find that because Jackson pled guilty to all four offenses pursuant to

      a single plea agreement, Indiana precedent requires that we review his

      aggregate sentence, not merely a portion of it. We conclude that Jackson has

      failed to carry his burden to show that his twenty-year aggregate sentence is

      inappropriate. We also reject Jackson’s challenge to his probation condition.

      Accordingly, we affirm.


                                 Facts and Procedural History
[2]   On July 13, 2016, Chan Weng Yan was walking to her apartment when she

      saw a male, later identified as Jackson, ahead of her. After Yan walked behind

      a building, she no longer saw Jackson. Yan arrived at her apartment building

      and went inside. As she reached the door to her apartment, Jackson grabbed

      her from behind, wrapping both of his arms around her body. He lifted her up

      and threw her to the ground. While Yan was on the ground, Jackson searched



      Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-660 | October 4, 2017   Page 2 of 12
      her pockets, took her wallet, and fled. Yan had $6 in her wallet. The next day,

      Yan told police that her knee and two fingers hurt due to Jackson’s actions.


[3]   Four days later, Minglang Li, who lived in the same apartment building as Yan,

      was returning home. As he unlocked the door to his second-floor apartment, he

      turned to see Jackson running up the stairs toward him. Jackson said, “Give

      me all your money or I will killl [sic] you.” Appellant’s App. Vol. 2 at 132. Li

      gave Jackson approximately $100. As Jackson ran away, he told Li, “Don’t tell

      anyone about this, I know where you live.” Id.


[4]   Police investigated the two robberies and identified Jackson as a suspect. They

      went to an apartment where Jackson was expected to be and knocked on the

      door. Jackson answered. Although officers recognized Jackson, he repeatedly

      told them his name was John. After the police arrested him for false informing,

      he told them his real name. Police transported Jackson to the police station.

      There, Jackson was advised of his rights, waived his right to remain silent, and

      admitted to robbing Yan and Li. The State charged Jackson under cause

      number 79D02-1607-F5-107 (“Cause F5-107”) with two counts of level 5 felony

      robbery, one count of level 6 felony intimidation, and two counts of class A

      misdemeanor theft. On August 3, Jackson posted bond and was released.


[5]   On August 5, the State charged Jackson under cause number 79D05-1608-CM-

      2826 (“Cause CM-2826”) with class A misdemeanor criminal trespass.

      Apparently, he posted bond and was released.




      Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-660 | October 4, 2017   Page 3 of 12
[6]   On August 5, the State also filed a motion to revoke Jackson’s bond in Cause

      F5-107. On August 19, the trial court issued an order revoking Jackson’s bond

      and issued a warrant for his arrest.


[7]   On August 27, Jackson went to sixty-three-year-old Connie Maus’s apartment

      and knocked on the door. When Maus opened the door, Jackson put a gun to

      her head and forced his way inside. Maus backed up and sat on her bed.

      Maus told police that Jackson said, “If you scream I’ll shoot you.” Id. at 134.

      Maus told him that she did not have any money. While she sat on her bed,

      Jackson looked around and found her handgun and a handgun magazine,

      which he stole. Then, he held the gun to her head and took her sapphire ring

      off her finger. Jackson fled the apartment. Police arrested him the following

      day.


[8]   In September 2016, under cause number 79D02-1609-F2-26 (“Cause F2-26”),

      the State charged Jackson with level 2 felony burglary, level 3 felony armed

      robbery, level 4 felony burglary, level 3 felony criminal confinement (later

      amended to level 6), level 5 felony intimidation, class A misdemeanor resisting

      law enforcement, level 6 felony theft of a firearm, and class A misdemeanor

      theft.


[9]   On February 8, 2017, pursuant to an open plea agreement, Jackson pled guilty

      to two level 5 felony robberies under Cause F5-107, and level 3 felony armed

      robbery and level 6 felony criminal confinement under Cause F2-26. The State

      agreed to dismiss the remaining charges in both causes and Cause CM-2826.


      Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-660 | October 4, 2017   Page 4 of 12
       The plea agreement “embodie[d] the entire agreement between the parties.” Id.

       at 62. In Cause F5-107, the trial court sentenced Jackson to consecutive terms

       of four years, with three years executed and one year suspended, for each

       robbery conviction. In Cause F2-26, the trial court imposed a twelve-year

       sentence for the armed robbery conviction, with eight years executed and four

       years suspended to probation, and a concurrent two-year sentence for the

       criminal confinement conviction. The trial court ordered that the sentences in

       the two causes run consecutive to each other, for an aggregate sentence of

       twenty years, with fourteen years executed and six years suspended. As a

       condition of Jackson’s probation, the trial court restricted him from “entering a

       bar, tavern, or liquor store.” Id. at 73.


[10]   Jackson timely filed his notices of appeal in Causes F5-107 and F2-26. He

       subsequently filed a petition to consolidate the appeals, which we granted.


                                      Discussion and Decision

        Section 1 – We must review Jackson’s aggregate sentence for
                    all offenses under the plea agreement.
[11]   As a preliminary matter, we observe that Jackson challenges only the portion of

       his sentence attributable to Cause F5-107, i.e., his two convictions for level 5

       felony robbery. In Webb v. State, 941 N.E.2d 1082, 1087-88 (Ind. Ct. App.

       2011), trans. denied, we held that a defendant may not limit our review of his

       sentence by merely challenging an individual sentence within a single

       sentencing order that includes multiple sentences. There, the defendant pled


       Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-660 | October 4, 2017   Page 5 of 12
       guilty without a plea agreement to robbery, six counts of fraud, and three

       additional counts in one cause, and misdemeanor OWI from a separate but

       consolidated cause. Id. at 1084-85. On appeal, he challenged only his twenty-

       year maximum sentence for robbery rather than his twenty-five-year aggregate

       sentence. Id. at 1085. In holding that our review could not be so limited, we

       relied on Cardwell v. State, 895 N.E.2d 1219, 1224-25 (Ind. 2008), where our

       supreme court emphasized the importance of focusing our review on the

       aggregate sentence rather than the length of the sentence on an individual

       count. Webb, 941 N.E.2d at 1087-88.


[12]   Here, the trial court issued separate sentencing orders for Causes F5-107 and

       F2-26 and ordered that the sentences run consecutively. Notwithstanding the

       separate sentencing orders, Jackson pled guilty pursuant to a single plea

       agreement that covered three separate causes against him. The plea agreement

       is captioned with all three cause numbers and articulates the convictions or

       dismissal of counts under each. Appellant’s App. Vol. 2 at 62. Specifically, in

       exchange for Jackson’s guilty plea to a total of four counts, the remaining six

       counts under Cause F2-26 were dismissed and Cause CM-2826 was dismissed

       in its entirety. To review his sentence only with respect to two felony

       convictions, as he urges, would essentially amount to ignoring important

       aspects of the contract between the parties, such as the substantial benefit that

       he received in exchange for his guilty plea. The plea agreement represented a

       single transaction that “embodie[d] the entire agreement between the parties.”

       Id. We believe that the reasoning in Cardwell and Webb extends to


       Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-660 | October 4, 2017   Page 6 of 12
       circumstances such as these where a defendant pleads guilty pursuant to a

       single plea agreement to offenses charged under separate cause numbers. In

       fact, we have recently so held in Moyer v. State, No. 79A04-1703-CR-477, 2017

       WL 3975653 at * 2 (Ind. Ct. App. Sept. 11, 2017), opinion not yet certified. We

       review Jackson’s aggregate twenty-year sentence accordingly.


       Section 2 – Jackson has failed to carry his burden to show that
                        his sentence is inappropriate.
[13]   Jackson asks us to reduce his sentence pursuant to Appellate Rule 7(B), which

       states, “The 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.” When reviewing a sentence, our principal role is to leaven the

       outliers rather than necessarily achieve what is perceived as the correct result in

       each case. Cardwell, 895 N.E.2d at 1225. “We do not look to determine if the

       sentence was appropriate; instead we look to make sure the sentence was not

       inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “[S]entencing

       is principally a discretionary function in which the trial court’s judgment should

       receive considerable deference.” Cardwell, 895 N.E.2d at 1222. “Such

       deference should prevail unless overcome by compelling evidence portraying in

       a positive light the nature of the offense (such as accompanied by restraint,

       regard, and lack of brutality) and the defendant’s character (such as substantial

       virtuous traits or persistent examples of good character).” Stephenson v. State, 29

       N.E.3d 111, 122 (Ind. 2015). In conducting our review, we may consider all

       Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-660 | October 4, 2017   Page 7 of 12
       aspects of the penal consequences imposed by the trial court in sentencing, i.e.,

       whether it consists of executed time, probation, suspension, home detention, or

       placement in community corrections, and whether the sentences run

       concurrently or consecutively. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.

       2010). In addition, as we assess the nature of the offense and character of the

       offender, “we may look to any factors appearing in the record.” Boling v. State,

       982 N.E.2d 1055, 1060 (Ind. Ct. App. 2013). Jackson has the burden to show

       that his sentence is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

       2007), clarified on reh’g, 875 N.E.2d 218.


[14]   Turning first to the nature of the offenses, we observe that “the advisory

       sentence is the starting point the Legislature selected as appropriate for the

       crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). Jackson’s

       aggregate twenty-year sentence comprises a twelve-year term for his level 3

       felony conviction (concurrent to a two-year term for his level 6 felony

       conviction) and consecutive four-year terms for his two level 5 felony

       convictions. The sentencing range for a level 3 felony is three to sixteen years,

       with an advisory term of nine years. Ind. Code § 35-50-2-5(b). The sentencing

       range for a level 5 felony is one to six years, with an advisory term of three

       years. Ind. Code § 35-50-2-6(b). A level 6 felony has a sentencing range of six

       months to two and one-half years, with an advisory term of one year. Ind.

       Code § 35-50-2-7(b).


[15]   Jackson argues that a sentence above the advisory is inappropriate because

       none of the victims suffered injury, one of the robberies involved no use of

       Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-660 | October 4, 2017   Page 8 of 12
       force, and one of the robberies involved a loss of only $6. Jackson’s argument

       ignores the decidedly violent circumstances of his crimes. He grabbed Yan with

       both arms, lifted her up, and threw her to the ground. The following day, her

       knee and fingers hurt. He threatened to kill Li and warned him not to report

       the crime. His third victim was a sixty-three-year-old woman. He forced his

       way into her home with a gun pointed at her head. He threatened to kill her if

       she screamed. He held a gun to her head while he took her ring off her finger.

       In addition, he committed all three robberies within only forty-five-days of each

       other. On balance, we cannot say that Jackson has shown compelling evidence

       portraying the nature of the offenses in a positive light.


[16]   As for Jackson’s character, he claims that he was only eighteen years old at the

       time of his offenses, his childhood was extremely difficult, he has mental health

       issues, his juvenile criminal history is not substantial, and family and

       community leaders showed support for him at sentencing. In describing his life,

       he notes that he was born “a drug baby” and designated a child in need of

       services, and his parents’ parental rights were terminated. Tr. at 38. He was

       adopted by his grandmother at age seven, but when he was twelve his

       grandfather died leaving him without a male role model. Psychological

       evaluations show that he was diagnosed with attention-deficit/hyperactivity

       disorder (“ADHD”) and oppositional-defiant disorder at age seven, for which

       he received medication until he refused treatment at age sixteen. His most

       recent psychological evaluation includes diagnoses for ADHD, intermittent

       explosive disorder, cannabis use disorder, and antisocial personality disorder.


       Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-660 | October 4, 2017   Page 9 of 12
       His criminal history consists of two juvenile adjudications for misdemeanor

       conversion and visiting a common nuisance. He was also charged with battery

       resulting in bodily injury, but that was dismissed after he wrote a letter of

       apology to the victim.


[17]   We acknowledge that Jackson has experienced many hardships from the time

       of his birth, and we understand that it is often difficult to overcome such

       adversity. We observe that the trial court recognized Jackson’s youth and

       hardships as mitigating factors. However, even though Jackson was offered

       numerous services through probation and the Department of Child Services, he

       has exhibited a disturbing propensity to engage in criminal activity. He

       committed the instant offenses after warrants for his arrest were issued from

       East Chicago City Court for failing to appear for 2016 charges of possession of

       marijuana and criminal trespass and from LaPorte Superior Court for a 2016

       charge of theft. At the time of sentencing in the instant case, the East Chicago

       and LaPorte charges were still pending. After posting bond for Cause F5-107,

       he committed the offense under Cause CM-2826. After he posted bond for

       Cause CM-2826, he committed the offenses under Cause F2-26. Despite his

       numerous contacts with law enforcement, he appears to be unwilling or unable

       to refrain from criminal activity, and his actions are continually becoming more

       violent. We also note that he lied to police about his identity during their

       investigation under Cause F5-107. We conclude that Jackson has failed to

       carry his burden to show that his sentence is inappropriate based on the nature

       of the offenses and his character. Accordingly, we affirm his sentence.


       Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-660 | October 4, 2017   Page 10 of 12
          Section 3 – The probation condition that restricts Jackson
       from entering a “liquor store” is not unconstitutionally vague.
[18]   Jackson also asserts that the probation condition that restricts his entry into a

       “liquor store” is unconstitutionally vague in that it may be read to prohibit

       entry to any business that sells liquor, such as pharmacies and grocery stores, in

       which case it is impermissibly overbroad. Appellant’s App. Vol. 2 at 73.1 In

       reviewing his argument, we note that trial courts have broad discretion in

       determining the appropriate conditions of a defendant’s probation. Bratcher v.

       State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013), trans. denied (2014). However,

       “[a] probationer has a due process right to conditions of supervised release that

       are sufficiently clear to inform him of what conduct will result in his being

       returned to prison.” McVey v. State, 863 N.E.2d 434, 447 (Ind. Ct. App. 2007)

       (citing United States v. Guagliardo, 278 F.3d 868, 872 (9th Cir. 2002)). To avoid

       being unconstitutionally vague, the condition must be clear enough so that

       individuals of ordinary intelligence would be adequately informed of the

       general conduct that is proscribed. Patton v. State, 990 N.E.2d 511, 516 (Ind. Ct.

       App. 2013). The condition “need not list, with itemized exactitude, every item

       of conduct that is prohibited.” Id.


[19]   In support of his claim, Jackson relies on Collins v. State, 911 N.E.2d 700 (Ind.

       Ct. App. 2009), trans. denied. There, a convicted sex offender appealed his




       1
        Jackson did not object to this probation condition at sentencing and signed the probation condition form.
       However, the State does not argue that he failed to preserve his claim for appellate review.

       Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-660 | October 4, 2017          Page 11 of 12
       probation condition that restricted him from visiting “businesses that sell sexual

       devices or aids.” Id. at 714. Another panel of this Court concluded that that

       condition was unfairly broad because it could extend to drug stores. Id.


[20]   We disagree with Jackson that the term “liquor store” is akin to “businesses

       that sell sexual devices or aids.” “Liquor store” is not commonly understood to

       mean any business that sells liquor; rather, it is commonly understood as a

       specific kind of store with the principal purpose of selling liquor. Furthermore,

       as the State points out, our legislature has defined liquor store in the context of

       alcohol laws. “The term ‘package liquor store’ means a place or establishment

       that meets the requirements provided in IC 1971, 7.1-3-10, and whose exclusive

       business is the retail sale of alcoholic beverages and commodities that are

       permissible under this title for use or consumption only off the licensed

       premises.” Ind. Code § 7.1-1-3-28. The terms that Jackson asserts could be

       confused with liquor store have different definitions. See Ind. Code §§ 7.1-1-3-

       18.5 (defining grocery store) and -15 (defining drug store). Consequently, we

       conclude that the probation condition restricting Jackson from entering liquor

       stores is constitutionally sound.


[21]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-660 | October 4, 2017   Page 12 of 12
