MEMORANDUM DECISION
                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                        Jul 17 2017, 9:53 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
Randy M. Fisher                                              Curtis T. Hill, Jr.
Leonard, Hammond, Thoma & Terrill                            Attorney General of Indiana
Fort Wayne, Indiana
                                                             Ellen H. Meilaender
                                                             Deputy Attorney General
                                                             Indianapolis, Indiana



                                              IN THE
        COURT OF APPEALS OF INDIANA

Andrew B. Nichols,                                           July 17, 2017
Appellant-Defendant,                                         Court of Appeals Case No.
                                                             02A05-1611-CR-2756
        v.                                                   Appeal from the Allen Superior
                                                             Court
State of Indiana,                                            The Honorable John F. Surbeck, Jr.,
Appellee-Plaintiff.                                          Judge
                                                             Trial Court Cause No.
                                                             02D06-1507-F3-44



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A05-1611-CR-2756 | July 17, 2017   Page 1 of 10
                                        Statement of the Case
[1]   Andrew B. Nichols appeals his sentence for attempted robbery, as a Level 3

      felony, and battery, as a Level 5 felony, following a jury trial. He raises two

      issues for our review, namely:

              1.       Whether the trial court abused its discretion in sentencing
                       him.

              2.       Whether his sentence is inappropriate in light of the nature
                       of the offense and his character.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On July 21, 2015, Christy Wroblewski (“Wroblewski”) stopped at Ricker’s gas

      station for her morning coffee. When she went into Ricker’s, Wroblewski left

      her car unattended and unlocked. As Wroblewski came back outside and

      walked toward her car, she saw Nichols exit the rear driver’s side door of her

      car and run across the parking lot with her purse. Wroblewski yelled at Nichols

      to stop and she began to chase him.


[4]   As Nichols ran away, he dropped the purse and stopped to pick up the contents.

      Wroblewski caught up with him and grabbed for her purse. Wroblewski was

      able to grab one handle of her purse and Nichols held onto the other. The two

      began to struggle over the purse. Wroblewski yelled for help from the

      bystanders who had gathered around, but Nichols shoved his fingers into her

      mouth. Wroblewski bit Nichols’ fingers and Nichols pulled his fingers out of

      Court of Appeals of Indiana | Memorandum Decision 02A05-1611-CR-2756 | July 17, 2017   Page 2 of 10
      her mouth and produced what appeared to be a gun, but was later found to be a

      pellet gun. Nichols pointed the gun at Wroblewski’s face and told her to stop or

      he would shoot her. Wroblewski grabbed the barrel of the pellet gun and

      pushed it away from her. As Nichols pulled the barrel out of Wroblewski’s

      hand, the pellet gun cut her hand and fell apart. When the gun started to fall

      apart Wroblewski believed it was a toy gun. As Wroblewski and Nichols

      struggled, Nichols used the pellet gun to hit Wroblewski in the temple, face,

      and back of the head. As a result, Wroblewski suffered redness, pain, and

      hematomas to her forehead and back of her head.


[5]   Nichols eventually grabbed the purse away from Wroblewski and threw it

      behind her into the parking lot. Nichols told Wroblewski to go get the purse.

      Wroblewski retrieved her purse while Nichols continued to point the gun at her

      and yelled at her to leave. Both parties then got into their cars and drove away.

      Nothing was missing from Wroblewski’s purse, and Nichols never fired the

      pellet gun. Bystanders saw Nichols drive away in a gold colored Cadillac and

      provided police with a license plate number.


[6]   Sergeant Mark Walters (“Walters”) from the Fort Wayne Police Department

      heard the dispatch of an armed robbery in progress with a description of

      Nichols’ vehicle, and he decided to watch for it from a nearby parking lot.

      Walters saw the vehicle drive by and he followed it until more units could assist

      him in stopping Nichols. When officers initiated a traffic stop, Walters

      observed a black handgun thrown out of the passenger side window. Nichols

      continued to drive approximately twenty more feet before coming to a stop

      Court of Appeals of Indiana | Memorandum Decision 02A05-1611-CR-2756 | July 17, 2017   Page 3 of 10
      where he was arrested. Walters recovered the gun from the sidewalk where

      Nichols had thrown it. The pellet gun was a phantom CO-2 gun made of metal

      that was heavy enough to replicate the feel of a real gun. The grip and the CO-

      2 tank of the gun were recovered in the area where Nichols and Wroblewski

      had struggled.


[7]   The State charged Nichols with attempted robbery, as a Level 3 felony, and

      battery, as a Level 5 felony. Following a trial, a jury found Nichols guilty as

      charged. Following a sentencing hearing, the trial court imposed a fourteen-

      year sentence with two years suspended to probation on the attempted robbery

      conviction and a concurrent three-year sentence on the battery conviction. The

      trial court rejected Nichols’ claim that his acceptance of responsibility was a

      mitigating circumstance. The court found that the nature of the offense was

      significant and that Nichols’ criminal history was an aggravating factor. This

      appeal ensued.


                                     Discussion and Decision
                            Issue One: Abuse of Discretion in Sentencing

[8]   Nichols challenges his sentence. Sentencing decisions lie within the sound

      discretion of the trial court. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

      2008). 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.” Gross v. State, 22




      Court of Appeals of Indiana | Memorandum Decision 02A05-1611-CR-2756 | July 17, 2017   Page 4 of 10
      N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation omitted), trans. denied. A trial

      court abuses its discretion in sentencing if it does any of the following:

               (1) fails “to enter a sentencing statement at all;” (2) enters “a
               sentencing statement that explains reasons for imposing a
               sentence—including a finding of aggravating and mitigating
               factors if any[1]—but the record does not support the reasons;” (3)
               enters a sentencing statement that “omits reasons that are clearly
               supported by the record and advanced for consideration;” or (4)
               considers reasons that “are improper as a matter of law.”


      Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind. 2007), clarified on

      reh’g, 875 N.E.2d 218 (Ind. 2007)). However, the relative weight or value

      assignable to reasons properly found, or those which should have been found, is

      not subject to review for abuse of discretion, id., and a trial court is under no

      obligation to explain why a proposed mitigator does not exist or why the court

      gave it insignificant weight, Sandleben v. State, 22 N.E.3d 782, 796 (Ind. Ct.

      App. 2014), trans. denied.


[9]   Nichols first contends that the trial court abused its discretion by failing to find

      that the significant length of time since his last criminal conduct was a

      mitigating factor. The trial court acknowledged that most of Nichols’ criminal




      1
         We note that, under the advisory sentencing scheme that replaced the presumptive sentencing scheme in
      2005, the trial court “no longer has an obligation to weigh aggravating and mitigating factors against each
      other when imposing a sentence.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). However, neither is
      the trial court prohibited from identifying facts in aggravation or mitigation. Id. And, if the trial court does
      find the existence of such factors, “then the trial court is required to give ‘a statement of the court’s reasons
      for selecting the sentence that it imposes.’” Id. (quoting Ind. Code § 35-38-1-3 (2006)).

      Court of Appeals of Indiana | Memorandum Decision 02A05-1611-CR-2756 | July 17, 2017                  Page 5 of 10
       history was old, but noted that he had committed the crimes of operating while

       intoxicated, possession of paraphernalia, and possession of a controlled

       substance just two months prior to the instant offense and was out on bond for

       those offenses when he committed the attempted robbery and battery in this

       case. Thus, while there was a gap in Nichols’ commission of offenses, he had

       begun criminal activity again even before the instant offense. The trial court’s

       refusal to give weight to the temporary lapse in Nichols’ criminal activity was

       well within the court’s discretion. Goss, 22 N.E.3d at 869.


[10]   Nichols next asserts that the trial court abused its discretion by failing to find as

       a mitigating factor that he had accepted responsibility for his crimes. The trial

       court rejected Nichols’ claim because, in fact, Nichols denied responsibility for

       the crimes with which he was charged. Instead, Nichols only took

       responsibility for the lesser offense of theft. Moreover, Nichols sought to

       minimize his actions by claiming he had thought he was taking a purse from

       someone who had previously stolen from him and he had “panicked and didn’t

       know what to do” when he realized the victim was not who he had believed her

       to be. Sen. Tr. Vol. I at 20. And Nichols did not take responsibility for pulling

       a gun on Wroblewski and repeatedly hitting her with it. Thus, the trial court

       found that Nichols had not truly accepted responsibility for his actions. Again,

       the trial court was well within its discretion to reach such a conclusion. See

       Anglemyer, 875 N.E.2d at 221 (finding the defendant’s statement of remorse

       while simultaneously minimizing his culpability was not a significant mitigating

       circumstance).


       Court of Appeals of Indiana | Memorandum Decision 02A05-1611-CR-2756 | July 17, 2017   Page 6 of 10
                               Issue Two: Inappropriateness of Sentence

                                                      Waiver


[11]   Nichols also contends that his sentence is inappropriate in light of the nature of

       the offenses and his character. However, he presents no authority or argument

       on the nature of his offense. Instead, he focuses solely on his character.

       Accordingly, he has waived appellate review of his sentence. As we recently

       explained in Sanders v. State, 71 N.E.3d 839, 843-44 (Ind. Ct. App. 2017), trans.

       denied:


                 Article 7, Sections 4 and 6 of the Indiana Constitution
                 “authorize[] independent appellate review and revision of a
                 sentence imposed by the trial court.” Roush v. State, 875 N.E.2d
                 801, 812 (Ind. Ct. App. 2007) (alteration original). This appellate
                 authority is implemented through Indiana Appellate Rule 7(B).
                 Id. Revision of a sentence under Rule 7(B) requires the appellant
                 to demonstrate that his sentence is inappropriate in light of the
                 nature of his offenses and his character. Ind. Appellate Rule 7(B)
                 (emphasis added). That language is clear: Rule 7(B) plainly
                 requires, as this court has long acknowledged, “the appellant to
                 demonstrate that his sentence is inappropriate in light of both the
                 nature of the offenses and his character.” Williams v. State, 891
                 N.E.2d 621, 633 (Ind. Ct. App. 2008) (emphasis original to
                 Williams).


       Because Nichols has failed to present any authority or analysis on the issue of

       the nature of his offenses, he has waived our review of the inappropriateness of

       his sentence.

                                            Waiver Notwithstanding


       Court of Appeals of Indiana | Memorandum Decision 02A05-1611-CR-2756 | July 17, 2017   Page 7 of 10
[12]   Waiver notwithstanding, Nichols has failed to persuade us that his sentence is

       inappropriate. We assess the trial court’s recognition or non-recognition of

       aggravators and mitigators as an initial guide to determining whether the

       sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind.

       Ct. App. 2006). However, “a defendant must persuade the appellate court that

       his or her sentence has met th[e] inappropriateness standard of review.” Roush,

       875 N.E.2d at 812 (alteration original).


[13]   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, 1224

       (Ind. 2008). The principal role of appellate review is to attempt to “leaven the

       outliers.” Id. at 1225. 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. The question is not whether another

       sentence is more appropriate, but rather whether the sentence imposed is

       inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).

       Deference to the trial court “prevail[s] 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).




       Court of Appeals of Indiana | Memorandum Decision 02A05-1611-CR-2756 | July 17, 2017   Page 8 of 10
[14]   Here, aside from providing no authority or analysis concerning the nature of his

       offenses, Nichols has not shown that the sentence was inappropriate in light of

       his character. “When considering the character of the offender, one relevant

       fact is the defendant’s criminal history,” and “[t]he significance of criminal

       history varies based on the gravity, nature, and number of prior offenses in

       relation to the current offense.” Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct.

       App. 2015), trans. denied. Nichols’ criminal history consists of seven

       misdemeanor convictions and one felony conviction. Nichols’ past crimes

       include shoplifting, criminal mischief, carrying a handgun without a license,

       possession of a bad check/money order, Class B felony burglary, resisting law

       enforcement, operating a motor vehicle while intoxicated, and possession of a

       controlled substance. Further, several of his prior offenses are similar in nature

       to his crimes in the instant case—i.e., unlawful taking of property from others

       and carrying a weapon. Moreover, Nichols was out on bond when he

       committed the offense here. His criminal history reflects poorly on his

       character.


[15]   Nichols’ attempts at explaining his crime also indicate a lack of character. He

       claimed that he believed the victim’s vehicle belonged to two individuals who

       had previously stolen from him, so he decided to exact revenge by stealing from

       those two rather than pursuing relief through lawful channels. Nichols further

       stated that when Wroblewski approached him and he realized his mistake, he

       “panicked and didn’t know what to do.” Sent. Tr. Vol. I at 20. Instead of

       ceasing his criminal activity and returning the purse to his mistaken victim,


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       Nichols chose to escalate the situation when he pulled out the gun he was

       carrying, pointed it at Wroblewski, threatened to shoot her, and then beat her

       repeatedly with it about her face and head. His purported resort to vigilante

       justice and his decision to escalate the situation with further violence reflect

       poorly on his character. Nichols’ sentence was not inappropriate given the

       nature of the offenses and his character.


[16]   Affirmed.


       Riley, J., and Bradford, J., concur.




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