MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Oct 25 2018, 9:25 am
regarded as precedent or cited before any
                                                                            CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark A. Thoma                                            Curtis T. Hill, Jr.
Deputy Public Defender                                   Attorney General of Indiana
Leonard, Hammond, Thoma & Terrill
                                                         Caryn N. Szyper
Fort Wayne, Indiana                                      Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Harold W. Jackson,                                       October 25, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1556
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D05-1709-F3-53



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1556 | October 25, 2018                Page 1 of 8
[1]   Harold W. Jackson appeals his sentence for robbery as a level 3 felony. We

      affirm.


                                      Facts and Procedural History

[2]   On September 20, 2017, Jackson entered a Family Dollar store in Allen County

      wearing black clothing and a black mask on his face, displayed a “CO2

      powered Airsoft gun” which appeared to be a Colt firearm, and said “[t]his is a

      hold-up . . . give me all your money.” Transcript Volume 2 at 7, 64. The store

      manager was near a safe where she had retrieved a bundle of fifty one-dollar

      bills for a cashier. Jackson walked towards the manager and cashier, pointed

      the gun at the manager’s head, and “kept yelling for the money.” Id. at 12.

      The manager was “[s]cared, like [she] was gonna die or something.” Id. The

      cashier was terrified and “kept saying ‘I got a daughter. Please don’t do this.’”

      Id. at 25. One of the employees told Jackson that the safe was locked and that

      there was a five-minute delay to open it. Jackson kept yelling and told the

      manager that “if the safe didn’t open in a certain amount of time, he was gonna

      blow her head off.” Id. at 26. The manager gave Jackson the bundle of fifty $1

      bills, and the cashier gave him a $100 bill and a $50 bill from a lockbox.

      Jackson placed several packs of Newport 100 cigarettes and the cash in a

      Family Dollar bag and exited the store. The manager called the police and felt

      “[s]cared to death.” Id. at 16.


[3]   A man observed Jackson run out of the store with a plastic bag and around the

      corner, and the man waved down a police officer. Another man who was

      outside of his house observed two police vehicles drive at a high speed on a
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1556 | October 25, 2018   Page 2 of 8
      nearby street with their lights and sirens activated and afterwards observed

      Jackson in black pants and a black hoodie in the bushes. The man saw Jackson

      walk down the street and behind another bush, and then the man waved down

      an officer and told them where he had last seen Jackson. As the man was

      walking back to his house and across his lawn, he again saw Jackson, who was

      no longer wearing the black clothing and was carrying a plastic bag, and

      Jackson asked the man to hide him. Jackson lifted up his shirt to show the gun.

      The man told Jackson that he would be in a lot of trouble for the gun and told

      him that he should throw it on the front porch. Jackson initially placed the gun

      on the porch and then immediately walked up the steps, picked up the gun

      again, tried to open the front door of the house but found it was locked, walked

      down the steps, and placed the gun into his plastic bag. At that point, the man

      pulled out his gun and demanded that Jackson lay down, and Jackson

      complied. The man yelled for officers, who came running and arrested

      Jackson. The officers retrieved the plastic bag on the porch near Jackson and

      found it contained four packs of unopened Newport cigarettes and “a black, it

      said Colt on the side, which . . . ended up being an Airsoft gun or BB gun”

      which was “a CO2 powered Airsoft gun . . . that’s supposed to mimic a Colt

      firearm.” Id. at 56, 64. The officers found money on Jackson which included a

      $100 bill, a $50 bill, fifty $1 bills, and three $20 bills. The officers also removed

      clothes from the bushes which included black work pants and two black shirts.


[4]   On September 26, 2017, the State charged Jackson with robbery as a level 3

      felony. In April 2018, the court held a bench trial. Jackson testified that he had


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1556 | October 25, 2018   Page 3 of 8
      found the bag containing the cigarettes and gun on the ground, that he had

      earned the money working for a temporary service, and that he was just

      walking down the street and was in the wrong place at the wrong time. The

      court found him guilty of robbery as a level 3 felony.


[5]   On May 25, 2018, the court held a sentencing hearing. Jackson’s counsel stated

      that one of Jackson’s sisters had indicated that Jackson had been shot in the

      head approximately twenty years earlier and that the family was concerned that

      it had an impact on his cognitive abilities. Counsel also stated that he had met

      with Jackson multiple times and always found that Jackson understood the case

      and was able to talk about his defense. Jackson’s counsel stated, “if I were to

      meet [Jackson] without any history, I’d probably think he had a learning

      disability, and perhaps that’s related to the head wound, which is consistent

      with what his sister tells me,” and “[i]f he’s not gonna self-disclose that to them

      when he gets to R.D.C., it may be a good idea to have some record of that in

      the pre-sentence report, just so they can better help him.” Id. at 98. Jackson’s

      counsel stated that he believed there were some mental health issues and “I

      don’t know how to exactly quantify those, but to the extent that those are

      mitigating, we’d ask the Court to give that some weight. He does have some

      health issues, has seizures and the like.” Id. at 99. He also argued that not a lot

      of property was taken and nobody was harmed, and asked the court to impose

      no more than the advisory sentence of nine years. The State argued that

      Jackson had an extensive and extremely serious criminal history, has had his

      probation revoked and an opportunity to address any substance abuse issues,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1556 | October 25, 2018   Page 4 of 8
      committed the instant armed robbery not long after his discharge from parole in

      2015, and in committing the robbery pointed a gun at the store clerks who were

      clearly extremely fearful. The State requested an aggravated sentence. The

      court found Jackson’s criminal record “with failed efforts at rehabilitation

      covering a period of time from 1999 to 2017, with four prior felony convictions”

      to be an aggravating circumstance. Id. at 101. It stated that Jackson was a

      multi-state offender, had been given the benefit of probation a couple of times,

      time in the Department of Correction, and parole, and sentenced Jackson to

      twelve years.


                                                  Discussion

[6]   Jackson claims that his sentence is inappropriate in light of the nature of the

      offense and his character. He argues that he remained polite and composed

      even when the trial judge announced the guilty verdict, that he expressed a

      desire to further his education and continue working and contributing to

      society, that the fact he reported he plans to abstain from getting into trouble by

      working shows that he is a hard worker who values personal growth, and that

      his strong familial relationships show that he has some redeeming qualities.

      The State responds that nothing about the nature of Jackson’s offense, which

      caused multiple people to fear for their lives and involved attempted residential

      entry after the fact, warrants downward revision of his sentence. The State also

      points to Jackson’s criminal history and argues that he has consistently

      demonstrated over the last two decades that he will not respect the authority of

      the courts, the law, or the rights of others.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1556 | October 25, 2018   Page 5 of 8
[7]   Ind. Appellate Rule 7(B) 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.” Under this rule, the burden is on the defendant to persuade

      the appellate court that his or her sentence is inappropriate. See Childress v.

      State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[8]   Ind. Code § 35-50-2-5 provides that a person who commits a level 3 felony shall

      be imprisoned for a fixed term of between three and sixteen years, with the

      advisory sentence being nine years. Jackson was sentenced to twelve years.


[9]   Our review of the nature of the offenses reveals that Jackson entered the Family

      Dollar store dressed in black and wearing a mask on his face, displayed an

      Airsoft gun which was designed to look like a Colt firearm and pointed it at the

      manager’s head, and demanded money. He yelled and threatened the store

      employees, telling the manager that “if the safe didn’t open . . . he was gonna

      blow her head off.” Transcript Volume 2 at 26. He took money from the

      manager and money from the cashier which she obtained from a lockbox. The

      manager testified that the robbery occurred over ten or fifteen minutes. The

      manager testified she was “[s]cared, like [she] was gonna die” and “[s]cared to

      death,” and the cashier testified that she was terrified and “kept saying ‘I got a

      daughter. Please don’t do this.’” Id. at 12, 16, 25. After leaving the store,

      Jackson removed his black pants and shirt, asked a man to hide him, lifted his

      shirt to display his gun, and attempted to enter the man’s house.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1556 | October 25, 2018   Page 6 of 8
[10]   Our review of the character of the offender reveals that, according to the

       presentence investigation report (the “PSI”), Jackson’s criminal history consists

       of possession of a controlled substance as a felony in Missouri in May 1999, for

       which he was placed on probation which was revoked twice and he was

       ordered to serve five years in prison, and murder in the second degree, armed

       criminal action, and attempted robbery in the first degree as felonies in October

       2001, for which he was sentenced to fifteen years in prison. The PSI indicates

       that he was released to parole in July 2014 and discharged from parole in

       October 2015. The PSI also states that, according to Jackson’s NCIC report, it

       appears he was arrested in Missouri in 1999 for “Tampering With Motor

       Vehicle – Airplane” but that no further information was obtained. Appellant’s

       Appendix Volume III at 6.


[11]   The PSI further provides that Jackson stated that he plans to abstain from

       further trouble by working and that he reported that, prior to his present

       incarceration, he worked at various temporary agencies. It also provides that

       Jackson stated that he suffered from chronic seizures. The PSI indicates that

       Jackson reported that he began using marijuana at age eighteen or nineteen and

       used daily until age thirty-six when he claimed to have quit. The PSI states

       that, when asked about his feeling toward the present verdict, Jackson stated

       “They did me wrong.” Id. at 8. The PSI indicates that Jackson scored high in

       two domains of the Indiana risk assessment system tool, the criminal history

       domain and the criminal attitudes and behavioral patterns domain, and that his




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1556 | October 25, 2018   Page 7 of 8
       overall risk assessment score places him in the moderate risk to reoffend

       category.


[12]   After due consideration, we conclude that Jackson has not sustained his burden

       of establishing that his sentence is inappropriate in light of the nature of the

       offenses and his character.1


[13]   For the foregoing reasons, we affirm Jackson’s sentence.


       Affirmed.


       Altice, J., and Tavitas, J., concur.




       1
         To the extent Jackson argues the court abused its discretion in sentencing him by failing to consider his
       family support, desire to stay out of trouble, and mental health, we need not address this issue because we
       find that his sentence is not inappropriate. See Chappell v. State, 966 N.E.2d 124, 134 n.10 (Ind. Ct. App.
       2012) (noting that any error in failing to consider the defendant’s guilty plea as a mitigating factor is harmless
       if the sentence is not inappropriate) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that,
       in the absence of a proper sentencing order, Indiana appellate courts may either remand for resentencing or
       exercise their authority to review the sentence pursuant to Ind. Appellate Rule 7(B) ), reh’g denied; Mendoza v.
       State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007) (noting that, “even if the trial court is found to have abused
       its discretion in the process it used to sentence the defendant, the error is harmless if the sentence imposed
       was not inappropriate”), trans. denied), trans. denied; Shelby v. State, 986 N.E.2d 345, 370 (Ind.Ct.App.2013)
       (holding that “even if the trial court did abuse its discretion by failing to consider the alleged mitigating factor
       of residual doubt, this does not require remand for resentencing” and citing Windhorst and Mendoza), trans.
       denied. Even if we were to consider Jackson’s abuse of discretion argument, we would not find it to be
       persuasive. Jackson did not argue at sentencing that his family support and desire to stay out of trouble
       constituted mitigating circumstances, and while Jackson’s counsel stated that Jackson may have a learning
       disability which was possibly related to his previous head wound, the trial court did not find that Jackson’s
       mental health issues constituted a mitigating circumstance.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1556 | October 25, 2018                        Page 8 of 8
