MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             Nov 22 2017, 6:03 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
Jeffery A. Earl                                         Curtis T. Hill, Jr.
Danville, Indiana                                       Attorney General

                                                        Henry A. Flores
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Timothy Fulbright,                                      November 22, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        32A01-1706-CR-1340
        v.                                              Appeal from the Hendricks
                                                        Superior Court
State of Indiana,                                       The Honorable Karen M. Love,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        32D03-1607-F4-28



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A01-1706-CR-1340 | November 22, 2017       Page 1 of 6
                                             Case Summary
[1]   Timothy Fulbright appeals his six-year sentence imposed following his guilty

      plea to level 4 felony burglary. He argues that his placement in the Department

      of Correction (“DOC”) for the executed portion of his sentence is inappropriate

      in light of the nature of the offense and his character. Finding that Fulbright

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


                                 Facts and Procedural History
[2]   In July 2016, a fire broke out in Tami Morris’s apartment when she was away

      and caused substantial damage. When Morris returned to her apartment, she

      discovered that some of her personal property was missing. Fulbright admitted

      to police that he was in Morris’s apartment at the time of the fire, but he said

      that he went in to try to put out the fire. Police obtained a search warrant for

      Fulbright’s apartment and found Morris’s property in his apartment and on his

      person. The State charged Fulbright with level 4 felony burglary, level 4 felony

      arson, and level 6 felony theft.


[3]   On May 2, 2017, a change of plea hearing was held. Pursuant to a plea

      agreement, Fulbright pled guilty to level 4 felony burglary and agreed to a six-

      year sentence with three years executed and three years suspended. Fulbright’s

      placement during the executed portion of the sentence was left to the trial

      court’s discretion. Fulbright also agreed to pay Morris restitution of $7210.14.

      The State agreed to dismiss the other charges.




      Court of Appeals of Indiana | Memorandum Decision 32A01-1706-CR-1340 | November 22, 2017   Page 2 of 6
[4]   Also on May 2, the trial court ordered that Fulbright be transferred from the

      Hendricks County Jail to the Work Release Center for the remainder of his

      pretrial detention. While on work release, Fulbright obtained employment at

      Integrity Rotational Molding and began training to be a machine operator. On

      May 20, Fulbright received a pass to go to his father’s house. A friend drove

      him there, but on the way back, the friend allegedly had a panic attack and

      began swerving off the road. After the friend pulled over, Fulbright decided to

      drive back to work release. On the way, a police officer stopped him for

      speeding, gave him a speeding ticket, and charged him with driving with a

      suspended license. On May 22, the work release director filed a petition and

      notice of work release violation requesting that Fulbright be remanded to

      Hendricks County Jail.


[5]   On May 23, the trial court held Fulbright’s sentencing hearing. Pursuant to the

      plea agreement, the trial court imposed a six-year sentence, with three years

      executed and three years suspended. As for Fulbright’s placement during the

      executed portion of the sentence, the trial court observed that the burglary was

      “very substantial”; that within three weeks of being placed on work release he

      was charged with driving while suspended; and that his criminal history was

      “not insignificant” for his age and included juvenile admissions to battery,

      disorderly conduct, criminal mischief, and child molesting, as well as adult

      convictions for receiving stolen property and driving while suspended. Tr. at

      56, 58. The trial court also noted that Fulbright had pending charges for two




      Court of Appeals of Indiana | Memorandum Decision 32A01-1706-CR-1340 | November 22, 2017   Page 3 of 6
      counts of battery. The trial court ordered that Fulbright serve the executed

      portion of his sentence in the DOC. This appeal ensued.


                                     Discussion and Decision
[6]   Fulbright challenges his placement in the DOC. Indiana Appellate Rule 7(B)

      states that his 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.” Fulbright asserts that placement in the DOC is inappropriate and

      asks that we revise his placement to work release. We have explained that


              [t]he location where a sentence is to be served is an appropriate
              focus for application of our review and revise authority....
              Nonetheless, we note that it will be quite difficult for a defendant
              to prevail on a claim that the placement of his sentence is
              inappropriate. This is because the question under Appellate Rule
              7(B) is not whether another sentence is more appropriate; rather,
              the question is whether the sentence imposed is inappropriate. A
              defendant challenging the placement of a sentence must convince
              us that the given placement is itself inappropriate.


      Webb v. State, 941 N.E.2d 1082, 1090 (Ind. Ct. App. 2011) (quoting King v.

      State, 894 N.E.2d 265, 267-68 (Ind. Ct. App. 2008)), trans. denied.


      “[S]entencing is principally a discretionary function in which the trial court’s

      judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d

      1219, 1222 (Ind. 2008). “Such deference should prevail unless overcome by

      compelling evidence portraying in a positive light the nature of the offense (such


      Court of Appeals of Indiana | Memorandum Decision 32A01-1706-CR-1340 | November 22, 2017   Page 4 of 6
      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). 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).


[7]   Fulbright contends that he is an “excellent candidate” for work release and

      “does not present a danger to society.” Appellant’s Br. at 8. We are

      unpersuaded. As for the nature of the offense, Fulbright argues that his offense

      was nonviolent because he committed it when no one was home. However,

      Fulbright either set fire to Morris’s apartment or used the fire as an opportunity

      to commit a burglary. Although he told the police that he went into her

      apartment to put out the fire, police discovered Morris’s stolen items in his

      apartment and on his person. As a result of Fulbright’s crime, Morris suffered

      substantial losses of more than $7000. Fulbright contends that it was an

      isolated incident motivated by his unemployment and need for money, but his

      criminal history as discussed below shows otherwise.


[8]   As for Fulbright’s character, he contends that his adult criminal history is

      minor. However, Fulbright was only twenty-three years old at the time he

      committed the instant offense and already had convictions for receiving stolen

      property, for which he received alternative misdemeanor sentencing, and

      driving while suspended. At the time of sentencing, he had pending charges for

      class A misdemeanor battery resulting in bodily injury and class B

      Court of Appeals of Indiana | Memorandum Decision 32A01-1706-CR-1340 | November 22, 2017   Page 5 of 6
       misdemeanor battery. His juvenile criminal history includes two admissions to

       battery, two admissions to disorderly conduct, one admission to criminal

       mischief, and one admission to child molesting. Further, within three weeks of

       being placed on work release, he allegedly broke the law again and was charged

       with driving while suspended. Fulbright testified that the reason he was driving

       was because his friend had a panic attack. However, it is the trial court’s

       prerogative to weigh the credibility of witnesses, and the trial court did not find

       his explanation credible. Fulbright’s criminal history shows a consistent pattern

       of breaking the law while the seriousness of his offenses is accelerating.


[9]    Fulbright places great emphasis on his need to earn an income to support his

       two children and make restitution and provides some examples to illustrate his

       strong work ethic. Although we commend his efforts and acknowledge that

       work release would enable him to earn an income, his criminal history

       demonstrates that previous attempts at leniency have failed. We conclude that

       Fulbright has failed to carry his burden to show that his sentence is

       inappropriate in light of the nature of the offense and his character.


[10]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 32A01-1706-CR-1340 | November 22, 2017   Page 6 of 6
