                                                              FILED
MEMORANDUM DECISION                                       Apr 28 2016, 7:33 am

                                                              CLERK
Pursuant to Ind. Appellate Rule 65(D),                    Indiana Supreme Court
                                                             Court of Appeals
this Memorandum Decision shall not be                          and Tax Court

regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Benjamin Loheide                                         Gregory F. Zoeller
Columbus, Indiana                                        Attorney General of Indiana

                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jerry Strawser,                                          April 28, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         03A05-1510-CR-1573
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable James D. Worton,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         03D01-1410-F3-4542



Altice, Judge.


                                          Case Summary




Court of Appeals of Indiana | Memorandum Decision 03A05-1510-CR-1573 | April 28, 2016   Page 1 of 8
[1]   Jerry Strawser pled guilty to three counts of Robbery as a Level 3 felony and

      was sentenced to an aggregate term of thirty-six years executed in the

      Department of Correction. Strawser now appeals, contending that his sentence

      is inappropriate pursuant to Ind. Appellate Rule 7(B).


[2]   We affirm.


                                       Facts & Procedural History


[3]   On September 28, 2014, Strawser and James Maddox drove from Detroit,

      Michigan to Columbus, Indiana for the purpose of robbing a specific gas

      station. During the ride, Strawser used heroin and smoked marijuana. When

      they arrived in Columbus, Strawser entered the gas station while wearing a

      mask and pointed a handgun at the clerk, Miranda Baker, and demanded

      money. Baker gave Strawser the money from the register, and he then ordered

      her to the back room and demanded that she open two safes.


[4]   While Strawser was behind the counter with Baker, Florentina Perez Ruiz and

      her brother, Rogelio Perez Ruiz, entered the gas station for their morning

      coffee. Florentina saw Strawser’s mask and thought it was a joke, so she smiled

      at him and laughed. Strawser pointed his gun at Florentina and Rogelio and

      demanded money. Florentina immediately complied, but Rogelio gave

      Strawser only part of his money. Strawser became angry and struck Rogelio in

      the head with the gun.




      Court of Appeals of Indiana | Memorandum Decision 03A05-1510-CR-1573 | April 28, 2016   Page 2 of 8
[5]   Meanwhile, police had been alerted to the robbery and surrounded the gas

      station. Strawser exited the gas station and ran to a neighboring parking lot

      where Maddox was waiting for him in a vehicle. Strawser and Maddox

      managed to elude police and drove to a restaurant approximately eight miles

      away. Strawser and Maddox were apprehended after police located the vehicle

      in the restaurant’s parking lot.


[6]   As a result of these events, the State charged Strawser with three counts of

      Level 3 felony robbery, one count of Level 5 felony battery, and one count of

      Level 5 felony possession of an altered handgun. Strawser subsequently entered

      into a plea agreement pursuant to which he pled guilty to the three counts of

      robbery in exchange for dismissal of the remaining charges. On September 8,

      2015, the trial court sentenced Strawser to consecutive terms of ten years for

      robbing Baker, sixteen years for robbing Rogelio, and ten years for robbing

      Florentina. Thus, Strawser received an aggregate sentence of thirty-six years

      executed in the Department of Correction. Strawser now appeals. Additional

      facts will be provided as necessary.


                                          Discussion & Decision


[7]   Strawser contends that his sentence is inappropriate in light of the nature of his

      offense and his character. Article 7, section 4 of the Indiana Constitution grants

      our Supreme Court the power to review and revise criminal sentences. See

      Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014), cert. denied, 135 S.Ct. 978

      (2015). Pursuant to A.R. 7, our Supreme Court authorized this court to


      Court of Appeals of Indiana | Memorandum Decision 03A05-1510-CR-1573 | April 28, 2016   Page 3 of 8
      perform the same task. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

      Per App. R. 7(B), we may revise a sentence “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.” Inman v. State, 4

      N.E.3d 190, 203 (Ind. 2014) (quoting App. R. 7). “Sentence review under

      Appellate Rule 7(B) is very deferential to the trial court.” Conley v. State, 972

      N.E.2d 864, 876 (Ind. 2012). “Such deference should prevail 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).

      Strawser bears the burden on appeal of persuading us that his sentence is

      inappropriate. See Conley, 972 N.E.2d at 876.


[8]   The determination of whether we regard a sentence as inappropriate “turns on

      our sense of the culpability of the defendant, the severity of the crime, the

      damage done to others, and myriad other factors that come to light in a given

      case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895

      N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to

      leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is

      not our goal in this endeavor to achieve the perceived “correct” sentence in

      each case. Knapp, 9 N.E.3d at 1292. Accordingly, “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.” King v. State,

      Court of Appeals of Indiana | Memorandum Decision 03A05-1510-CR-1573 | April 28, 2016   Page 4 of 8
       894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original). Additionally,

       “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.” Cardwell, 895 N.E.2d at 1225.


[9]    To assess the appropriateness of a sentence, we first look to the statutory range

       established for the classification of the relevant offenses. Strawser was

       convicted of three Level 3 felonies. The advisory sentence for a Level 3 felony

       is nine years, with a minimum and maximum sentence of three years and

       sixteen years, respectively. Ind. Code § 35-50-2-5. Strawser was sentenced to

       consecutive terms of ten years for robbing Baker, ten years for robbing

       Florentina, and sixteen years for robbing Rogelio, for an aggregate sentence of

       thirty-six years.


[10]   With respect to the nature of the offenses, we note that Strawser and Maddox

       drove approximately five hours from Detroit to Columbus for the purpose of

       robbing this specific gas station. At his sentencing hearing, Strawser testified

       that he had targeted Columbus because it was a “clean city” with “nice

       people.” Transcript at 26. Strawser robbed Baker at gunpoint, and when

       Florentina and Rogelio came into the gas station to buy their morning coffee,

       Strawser took the opportunity to rob them as well. When Rogelio resisted

       giving Strawser his money, Strawser struck him in the head with the gun.

       Strawser then fled from the gas station and was subsequently apprehended at a

       nearby restaurant. We are unpersuaded by Strawser’s argument that

       consecutive sentences are inappropriate because the offenses were part of a

       Court of Appeals of Indiana | Memorandum Decision 03A05-1510-CR-1573 | April 28, 2016   Page 5 of 8
       single episode of criminal conduct. As Strawser acknowledges, consecutive

       sentences were permissible under I.C. § 35-50-1-2 because robbery is classified

       as a crime of violence. The existence of multiple victims was sufficient to

       justify consecutive sentences in this case. See Gilliam v. State, 901 N.E.2d 72, 74

       (Ind. Ct. App. 2009) (noting that a single aggravating circumstance, such as the

       presence of multiple victims, may justify the imposition of consecutive

       sentences).


[11]   As to Strawser’s character, the record reveals that at only twenty-three years

       old, he already has a long history of delinquent and criminal behavior in his

       home state of Michigan. At fourteen years old, Strawser was adjudicated

       delinquent for committing retail fraud. At eighteen years old, Strawser was

       convicted under two separate cause numbers of attempted breaking and

       entering and malicious destruction of a building, both as misdemeanors. While

       on probation for these offenses, Strawser committed attempted retail fraud, a

       felony. He was sentenced to eighteen months on probation, but his probation

       was revoked because he “didn’t show up.” Transcript at 12. He was sentenced

       to the Michigan Department of Correction for a term ranging from four months

       to two and a half years. He was released in January 2014 without parole

       supervision after serving the maximum sentence due to his poor behavior in

       prison, including fighting and gang involvement. Less than a year later, he

       committed the instant offenses. Strawser’s behavior while incarcerated in

       Indiana has been atrocious. He has been found guilty of numerous jail rule

       violations for actions ranging from flooding his cell, physically attacking


       Court of Appeals of Indiana | Memorandum Decision 03A05-1510-CR-1573 | April 28, 2016   Page 6 of 8
       another inmate, throwing bodily waste on another inmate, damaging jail

       property, intimidation, and disorderly conduct.


[12]   Nevertheless, Strawser argues that his sentence should be reduced because he

       had a difficult childhood. Our Supreme Court has noted, however, “that

       evidence of a difficult childhood warrants little, if any, mitigating weight.”

       Ritchie v. State, 875 N.E.2d 706, 725 (Ind. 2007). Strawser also suggests that his

       sentence is inappropriately harsh in light of his substance abuse problems and

       his expression of remorse. Although we acknowledge that Strawser apparently

       has a substance abuse problem, we also note that he was ordered to participate

       in substance abuse services while on probation in Michigan. In February 2011,

       a warrant was issued for his arrest for failure to attend outpatient counseling

       and drug testing, and he was ordered to perform community service as a

       sanction. Under these circumstances, we cannot conclude that Strawser’s

       substance abuse problem weighs significantly in favor of a sentence reduction.

       See Caraway v. State, 959 N.E.2d 847, 852 (Ind. Ct. App. 2011) (holding that

       substance abuse may be considered an aggravating circumstance where the

       defendant is aware of his addiction and does not seek treatment), trans. denied.


[13]   We also observe that the trial court did not find Strawser’s expression of

       remorse to be a significant mitigating factor. See Hape v. State, 903 N.E.2d 977,

       1002-03 (Ind. Ct. App. 2009) (explaining that “our review of a trial court’s

       determination of a defendant’s remorse is similar to our review of credibility

       judgments: without evidence of some impermissible consideration by the trial

       court, we accept its determination”), trans. denied. We find the sincerity of his

       Court of Appeals of Indiana | Memorandum Decision 03A05-1510-CR-1573 | April 28, 2016   Page 7 of 8
       remorse highly dubious in light of his behavior while in jail and his attempts to

       minimize the severity of his crimes at the sentencing hearing and in the pre-

       sentence investigation report.1 For all of these reasons, we readily conclude that

       Strawser’s thirty-six-year executed sentence is not inappropriate.


[14]   We affirm.


[15]   Bailey, J. and Bradford, J., concur.




       1
         At the sentencing hearing, Strawser testified that he “tapped [Rogelio] on the head” with the gun and that
       “if [he] was really trying to harm anybody [he] would have shot somebody.” Transcript at 21. Strawser told
       the probation officer preparing his pre-sentence investigation report that he believed the sentencing range
       applicable to his offenses was “ridiculous” because “nobody died, got shot, everything was returned.”
       Appellant’s Appendix at 39.

       Court of Appeals of Indiana | Memorandum Decision 03A05-1510-CR-1573 | April 28, 2016             Page 8 of 8
