MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Oct 24 2019, 9:36 am
court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
John Andrew Goodridge                                    Curtis T. Hill, Jr.
Evansville, Indiana                                      Attorney General of Indiana
                                                         Megan M. Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Frankie Lynn Pollard, Jr.,                               October 24, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1097
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable Kelli E. Fink,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1804-F5-2860



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1097 | October 24, 2019                  Page 1 of 5
[1]   Frankie Lynn Pollard, Jr., appeals his sentence for operating a motor vehicle

      after forfeiture of license for life as a level 5 felony and being an habitual

      offender. We affirm.


                                      Facts and Procedural History

[2]   On April 19, 2018, law enforcement detained Pollard after observing that he

      failed to stop at a traffic light. After discovering the status of his license, officers

      placed him under arrest. The State charged him with operating a motor vehicle

      after forfeiture of license for life as a level 5 felony and alleged that he was an

      habitual offender. A jury found him guilty of the level 5 felony, and he pled

      guilty to being an habitual offender pursuant to an agreement providing for a

      two-year enhancement. The court found the fact Pollard pled guilty to being an

      habitual offender and that the offense did not harm any property or person to be

      mitigating and his criminal history to be aggravating. It sentenced him to four-

      and-one-half years on the level 5 felony and enhanced the sentence by two years

      for being an habitual offender.


                                                   Discussion

[3]   Pollard claims that his sentence is inappropriate under Ind. Appellate Rule

      7(B), that this Court should revise his sentence and impose the minimum

      sentence of one year for his level 5 felony and enhance the sentence by two

      years for being an habitual offender, and that an aggregate sentence of three

      years would be appropriate. He argues that, although his trial counsel admitted

      his character was not good, he pled guilty to being an habitual offender, that


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1097 | October 24, 2019   Page 2 of 5
      “[a]ll in all, [he] received the maximum sentence under the law for a person

      committing a Level 5 felony,” and that the nature of his offense is

      unremarkable. Appellant’s Brief at 12. The State responds that Pollard has

      failed to show that the nature of the offense or his character supports a

      reduction of his sentence, that, contrary to his claim, he did not receive the

      maximum sentence, and that he has an extensive criminal history including a

      number of driving-related offenses and felonies.


[4]   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.” 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). Ind. Code § 35-50-2-6 provides that a person who

      commits a level 5 felony shall be imprisoned for a fixed term of between one

      and six years with the advisory sentence being three years. Ind. Code § 35-50-2-

      8 provides that the court shall sentence a person found to be an habitual

      offender to an additional fixed term that is between two and six years for a

      person convicted of a level 5 felony. Pollard received a sentence of four-and-

      one-half years for his level 5 felony conviction which was enhanced by two

      years for being an habitual offender.


[5]   Our review of the nature of the offense reveals that Pollard operated a motor

      vehicle after forfeiture of license for life. Our review of the character of the

      offender reveals that he pled guilty to being an habitual offender pursuant to an

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1097 | October 24, 2019   Page 3 of 5
      agreement providing that he would receive a two-year enhancement. The

      presentence investigation report (“PSI”) indicates that Pollard was adjudicated

      delinquent as a juvenile for criminal trespass and possession of a look-alike

      substance. According to the PSI, his adult criminal history includes numerous

      misdemeanor convictions, including at least three counts of operating a motor

      vehicle without ever having received a license, false informing, criminal

      trespass, failure to stop after an accident, public intoxication, driving while

      suspended, disorderly conduct, resisting law enforcement, conversion, battery,

      and possession of marijuana. It also indicates that he received felony

      convictions for three counts of possession of cocaine or narcotic drug, forgery,

      operating a vehicle as an habitual traffic violator as a class D felony in 2010,

      operating a motor vehicle after lifetime forfeiture of driving privileges as a class

      C felony in 2012, and escape. It shows a revocation of his community

      corrections placement. The PSI also states that charges for possession of

      methamphetamine were filed in another cause in July 2018. The PSI indicates

      that Pollard reported that he began using alcohol at age twelve, began using

      marijuana at age ten, and became a daily smoker at age sixteen. It also

      indicates that the result of the risk assessment tool places him in the very high

      risk to reoffend category.


[6]   After due consideration, we conclude that Pollard has not sustained his burden

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

      offense and his character.


[7]   For the foregoing reasons, we affirm Pollard’s sentence.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1097 | October 24, 2019   Page 4 of 5
[8]   Affirmed.


[9]   Altice, J., and Tavitas, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1097 | October 24, 2019   Page 5 of 5
