      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                    FILED
      regarded as precedent or cited before any                           Jun 05 2017, 8:59 am

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


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Timothy P. Broden                                        Curtis T. Hill, Jr.
      Lafayette, Indiana                                       Attorney General of Indiana
                                                               Katherine Modesitt Cooper
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Miguel Garcia,                                           June 5, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               79A04-1610-CR-2290
              v.                                               Appeal from the Tippecanoe
                                                               Superior Court
      State of Indiana,                                        The Honorable Steven P. Meyer,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               79D02-1411-F3-2



      Mathias, Judge.


[1]   Miguel Garcia (“Garcia”) was convicted in Tippecanoe Superior Court of Level

      6 felony criminal confinement and two counts of Level 3 felony robbery. The


      Court of Appeals of Indiana | Memorandum Decision 79A04-1610-CR-2290 | June 5, 2017          Page 1 of 8
      trial court sentenced Garcia to two consecutive terms of nine years on the Level

      3 felony convictions and a concurrent two and one-half year sentence on the

      Level 6 felony conviction. In his first appeal, Garcia claimed that the trial court

      erred by failing to explain why Garcia’s sentences should be served

      consecutively. A panel of this court agreed and remanded with instructions that

      the trial court either enter concurrent sentences or impose consecutive sentences

      supported by appropriate findings. On remand, the trial court chose the latter

      option and entered findings to support the imposition of consecutive sentences.

      From this order, Garcia appeals and claims that the trial court’s sentence is

      inappropriate.

[2]   We affirm.


                                 Facts and Procedural History

[3]   The facts underlying this case were set forth in our memorandum decision in

      Garcia’s first appeal as follows:


              On November 12, 2014, the State filed an information charging
              Garcia with ten counts relating to the armed robberies of a
              Speedway gas station and a Village Pantry convenience store in
              Lafayette on November 1 and November 5, 2014, respectively.
              On November 1, Garcia and Jacob Lumbley took cigarettes,
              money, and the store clerk’s cellular telephone from the
              Speedway gas station while Lumbl[e]y was armed with a
              handgun. On November 5, Garcia, Lumbley, and Tiffany
              Mounts took money and merchandise from the Village Pantry
              store while Lumbley was armed with a shotgun and Garcia was
              armed with a knife. During the course of the Village Pantry



      Court of Appeals of Indiana | Memorandum Decision 79A04-1610-CR-2290 | June 5, 2017   Page 2 of 8
        robbery, the robbers ordered the store clerks to lay on the floor
        until the robbers left.
        On May 19, 2015, Garcia and the State entered into a plea
        agreement under which Garcia pleaded guilty to the following
        charges: Count II, robbery as a Level 3 felony, relating to the
        November 1 offense; Count VI, robbery as a Level 3 felony,
        relating to the November 5 offense; and Count VII, criminal
        confinement as a Level 3 felony, relating to the November 5
        offense. In exchange, the State dismissed the remaining counts.
        Following a sentencing hearing on June 19, the trial court found
        the following aggravating factors: “the seriousness of the offense;
        offenses committed within five months of entering community;
        his criminal history; there were 3 victims; character of
        Defendant; and he has been disciplined while incarcerated.” The
        court also found the following mitigating factors:
            the Defendant pled guilty; he participated in rehabilitative
            programs while in custody at the County jail; he has
            shown remorse for his victims; he has drug and alcohol
            problems and was under the influence of Spice at the time
            of the commission of the offenses; he has had a somewhat
            good employment history; and his difficult childhood.
        The trial court then found that “the aggravating factors and the
        mitigating factors balance.”

        The trial court imposed the nine year advisory sentence upon
        Garcia for both the Count II and Count VI robbery convictions,
        with each sentence having eight years executed and one year
        suspended on supervised probation. The court reduced the Count
        VII criminal confinement conviction to a Level 6 felony and
        sentenced Garcia to two and one-half years executed on that
        count. The trial court ordered that the sentences on Counts VI
        and VII be served concurrent with one another, but consecutive
        to the sentence on Count II, for an aggregate sentence of eighteen
        years, with sixteen years executed in the Department of
        Correction and two years suspended to probation.


Court of Appeals of Indiana | Memorandum Decision 79A04-1610-CR-2290 | June 5, 2017   Page 3 of 8
      Garcia v. State, No. 79A02-1507-CR-944, slip op. at 1-3 (Garcia I) (Ind. Ct. App.

      Mar. 15, 2016) (record citations omitted).

[4]   The Garcia I court held that the trial court erred by imposing consecutive

      sentences without stating any reasons to support its decision. See id., slip op. at

      6 (citing Marcum v. State, 725 N.E.2d 852, 864 (Ind. 2002)). The Garcia I court

      chose to remand the case to the trial court “with instructions for the trial court

      to reconsider its order of consecutive sentences of eighteen years for the robbery

      convictions. On remand, the trial court may either enter concurrent sentences

      for the robbery convictions or impose the same consecutive sentences, if the

      court supports its sentence with appropriate findings.” Id., slip op. at 7 (citing

      Windhorst v. State, 868 N.E.2d 504 (Ind. 2007)).


[5]   On remand, the trial court exercised the latter option and entered a new

      sentencing order in which it found, with regard to its decision to impose

      consecutive sentences, that there were separate offenses committed within a

      short period of time from each other, at separate convenience stores, involving a

      total of three victims. The trial court then re-imposed its original aggregate

      sentence of eighteen years with sixteen years executed and two suspended.

      Garcia again appeals.


                                     Discussion and Decision

[6]   In this appeal after remand, Garcia claims only that the sentence imposed by

      the trial court is inappropriate. Article 7, Sections 4 and 6 of the Indiana

      Constitution authorize independent appellate review and revision of a sentence

      Court of Appeals of Indiana | Memorandum Decision 79A04-1610-CR-2290 | June 5, 2017   Page 4 of 8
      imposed by the trial court. Trainor v. State, 950 N.E.2d 352, 355-56 (Ind. Ct.

      App. 2011), trans. denied. This authority is implemented through Indiana

      Appellate Rule 7(B), which provides that the court on appeal “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.”

[7]   Still, we must and should exercise deference to a trial court’s sentencing

      decision because Rule 7(B) requires us to give “due consideration” to that

      decision and because we recognize the unique perspective a trial court brings to

      its sentencing decisions. Id. Although we have the power to review and revise

      sentences, the principal role of appellate review should be to attempt to “leaven

      the outliers” and identify some guiding principles for trial courts and those

      charged with improvement of the sentencing statutes, but not to achieve what

      we perceive to be a “correct” result in each case. Fernbach v. State, 954 N.E.2d

      1080, 1089 (Ind. Ct. App. 2011), trans. denied (citing Cardwell v. State, 895

      N.E.2d 1219, 1225 (Ind. 2008)). The appropriate question is not whether

      another sentence is more appropriate; rather, the question is whether the

      sentence imposed is inappropriate. Former v. State, 876 N.E.2d 340, 344 (Ind.

      Ct. App. 2007). It is the defendant’s burden on appeal to persuade us that the

      sentence imposed by the trial court is inappropriate. Childress v. State, 848

      N.E.2d 1073, 1080 (Ind. 2006).




      Court of Appeals of Indiana | Memorandum Decision 79A04-1610-CR-2290 | June 5, 2017   Page 5 of 8
[8]   Here, Garcia pleaded guilty to committing two Level 3 felonies.1 The

      sentencing range for a Level 3 felony is from three to sixteen years, with the

      advisory sentence being nine years. Ind. Code § 35-50-2-5(b). The trial court

      also ordered the advisory sentences for the two Level 3 felonies to be served

      consecutively, for an aggregate sentence of eighteen years. See Cardwell, 895

      N.E.2d at 1225 (holding that “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.”). We also

      take into account that the court ordered two of these eighteen years suspended

      to probation. See Marley v. State, 17 N.E.3d 335, 339 (Ind. Ct. App. 2014)

      (holding that appellate courts reviewing the appropriateness of a sentence

      should consider not only the aggregate length of a sentence but also whether a

      portion of the sentence is ordered suspended).

[9]   Regarding the nature of the offenses, Garcia argues that nothing in the record

      indicates that his actions during the two robberies consisted of anything more

      than what was necessary to commit the offenses. He also argues that his co-

      defendant Lumbley was the main actor in the robberies. However, the record

      indicates that Garcia was an active participant in both robberies. He admittedly

      took property, cigarettes, during the first robbery. He also admitted that, during




      1
        Garcia also pleaded guilty to Level 5 felony criminal confinement, which the trial court reduced to a Level
      6 felony. The trial court also ordered the sentence on this Level 6 felony to be served concurrently with the
      two consecutive sentences imposed on the Level 3 felony convictions. Thus, the sentence on the Level 6
      felony does not affect the aggregate length of the sentence imposed by the trial court.

      Court of Appeals of Indiana | Memorandum Decision 79A04-1610-CR-2290 | June 5, 2017                Page 6 of 8
       the second robbery, he was armed with a knife and personally took cash directly

       from the cash register. Thus, Garcia was an active player in two armed

       robberies that were separated by several days, and which involved several

       victims. Accordingly, there is little about the nature of the offenses that

       persuades us that Garcia’s sentence is inappropriate.


[10]   With regard to the character of the offender, we admit that Garcia does not

       have a particularly lengthy criminal history. However, he has had numerous

       run-ins with the law. In addition to his two prior misdemeanor convictions for

       possession of marijuana and criminal trespass, Garcia had been arrested

       numerous times in Illinois, though the charges were later dismissed. See Cotto v.

       State, 829 N.E.2d 520, 526 (Ind. 2005) (holding that lengthy arrest record may

       reveal that defendant has not been deterred even after extensive contact with the

       criminal justice system); Vermillion v. State, 978 N.E.2d 459, 468 (Ind. Ct. App.

       2012) (noting that lengthy arrest record may be considered as part of the trial

       court’s assessment of defendant’s character and the risk that he will reoffend).

[11]   Nor can we ignore that Garcia received the advisory sentence for his convictions.

       Because the advisory sentence is the starting point our General Assembly has

       selected as an appropriate sentence for the crime committed, the defendant bears

       a particularly heavy burden in persuading us that his sentence is inappropriate

       when the trial court imposes the advisory sentence. Fernbach, 954 N.E.2d at 1089.

       We recognize that the trial court ordered Garcia’s sentences to be served

       consecutively. However, this simply recognizes that Garcia committed two

       completely separate robberies which occurred several days apart and involved

       Court of Appeals of Indiana | Memorandum Decision 79A04-1610-CR-2290 | June 5, 2017   Page 7 of 8
       different stores and different victims. See O’Connell v. State, 742 N.E.2d 943, 952

       (Ind. 2001) (noting that the existence of multiple crimes or multiple victims may

       justify the imposition of consecutive sentences); see also Myers v. State, 27 N.E.3d

       1069, 1082 (Ind. 2015) (holding that defendant’s consecutive sentences were not

       inappropriate where there were multiple victims), reh’g denied.


[12]   We acknowledge that, in aggregate, Garcia received a relatively severe sentence.

       However, this reflects both the serious nature of the crimes Garcia committed,

       armed robbery, and the fact that he committed two completely separate

       robberies, several days apart, involving different stores and different victims. In

       exercising our authority to review and revise sentences, our role is not to achieve

       what we perceive to be a “correct” result in each case, Fernbach, 954 N.E.2d at

       1089, nor is it our role to decide whether another sentence would be more

       appropriate. Former, 876 N.E.2d at 344. Instead, the question before us is only

       whether the sentence imposed by the trial court was inappropriate. Id. It was not.


                                                 Conclusion

[13]   Considering both the nature of the offense and the character of the offender,

       and giving due consideration and deference to the trial court sentencing

       decision, we are unable to say that Garcia’s sentence of eighteen years, with

       two years suspended to probation, is inappropriate.


[14]   Affirmed.


       Kirsch, J., and Altice, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 79A04-1610-CR-2290 | June 5, 2017   Page 8 of 8
