MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                            May 23 2018, 9:00 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                        CLERK
                                                                             Indiana Supreme Court
court except for the purpose of establishing                                    Court of Appeals
                                                                                  and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ryan M. Gardner                                         Curtis T. Hill, Jr.
Deputy Public Defender                                  Attorney General of Indiana
Fort Wayne, Indiana
                                                        James B. Martin
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jack W. Lombard, III,                                    May 23, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A03-1711-CR-2755
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Frances C. Gull,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause Nos.
                                                        02D06-1608-F5-254
                                                        02D04-1701-F6-48



Najam, Judge.


Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2755 | May 23, 2018                  Page 1 of 7
                                         Statement of the Case
[1]   Jack W. Lombard, III appeals his sentence following his guilty plea to

      intimidation, as a Level 6 felony, in Cause No. 02D06-1608-F5-254 (“F5-254”),

      and his sentence following his guilty plea to unlawful possession of a syringe, as

      a Level 6 felony, and possession of paraphernalia, as a Class C misdemeanor, in

      Cause No. 02D04-1701-F6-48 (“F6-48”). He raises one issue for our review,

      namely, whether his sentences are inappropriate in light of the nature of the

      offenses and his character.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On August 25, 2016, Lombard entered a gas station and stated to the clerk:

      “Give me your money. I want your f***in money.” Appellant’s App. Vol. II

      in F5-254 at 29.1 When the store clerk refused, Lombard said: “I will beat you;

      give me a pack of Newport 100’s.” Id. The store clerk was in fear, so he gave

      Lombard a pack of cigarettes valued at $5.09. Lombard then left the gas

      station. Officers with the Fort Wayne Police Department located Lombard a

      short time later, and the store clerk identified him as the person who took the

      cigarettes. Officers arrested Lombard, and he was released on bond.




      1
         Lombard submitted a four-volume appendix relevant to each cause number below, and he references each
      appendix by different appellate case numbers. For ease of reference, we will refer to each appendix by the
      trial court cause number.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2755 | May 23, 2018             Page 2 of 7
      Subsequently, the State charged Lombard with one count of robbery, as a Level

      5 felony, in F5-254.


[4]   On January 13, 2017, officers with the Allen County Police Department

      received an anonymous tip from a homeowner that Lombard was asleep on a

      couch in the home’s attached garage. When officers arrived, they discovered

      that Lombard had an active warrant for his arrest in F5-254 and they arrested

      him. The homeowner then gave officers consent to search the area. Officers

      searched the couch where Lombard had been sleeping and found three

      hypodermic syringes, a smoking device with burnt residue, and a burnt metal

      spoon head. On January 19, the State charged Lombard with one count of

      unlawful possession of a syringe, as a Level 6 felony, and one count of

      possession of paraphernalia, as a Class C misdemeanor, in F6-48.


[5]   Thereafter, on March 9, the State added one count of intimidation, as a Level 6

      felony, in F5-254 and dismissed the charge of robbery, as a Level 5 felony. On

      March 13, Lombard pleaded guilty as charged in both F5-254 and F6-48. The

      trial court took the guilty pleas under advisement and placed Lombard in the

      Allen County Drug Court Diversion Program. As a condition of his placement,

      Lombard agreed to comply with the rules of the court and to submit to random

      urine drug screens. And in exchange for his successful completion of the

      program the State agreed to dismiss all counts under F6-48 and the remaining

      count under F5-254.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2755 | May 23, 2018   Page 3 of 7
[6]   On August 28, Lombard’s case manager filed a petition to terminate his

      participation in the Drug Court Diversion Program. In the petition, the State

      alleged that Lombard had failed to comply with all of the rules and

      requirements of inpatient treatment and had failed to submit to a random urine

      drug screen on August 24. Lombard denied the allegations, and the trial court

      held an evidentiary hearing on September 22. At the end of the evidentiary

      hearing, the trial court found that Lombard had violated the terms of the

      agreement and revoked his placement in the program.


[7]   On October 24, the trial court accepted Lombard’s guilty pleas and entered

      judgment of conviction. The trial court then held a joint sentencing hearing in

      F5-254 and F6-48. During the sentencing hearing, the trial court identified

      mitigating and aggravating circumstances. The trial court sentenced Lombard

      to one and one-half years in the Department of Correction for unlawful

      possession of a syringe, as a Level 6 felony, and sixty days for possession of

      paraphernalia, as a Class C misdemeanor, in F6-48, to be served concurrently.

      And the trial court sentenced Lombard to one and one-half years for

      intimidation, as a Level 6 felony, in F5-254, to be served consecutive to the

      sentence in F6-48. This consolidated appeal ensued.2




      2
        Lombard filed two separate appeals in order to appeal his sentences in F6-48 and F5-254. Subsequently,
      the State filed a motion to consolidate the appeals, which this court granted.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2755 | May 23, 2018             Page 4 of 7
                                       Discussion and Decision
[8]   Lombard contends that his sentences are inappropriate in light of the nature of

      the offenses and his character.3 Indiana Appellate Rule 7(B) provides that

      “[t]he 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.” The Indiana Supreme Court has recently explained that:


               The principal role of appellate review should be to attempt to
               leaven the outliers . . . but not achieve a perceived “correct”
               result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). Defendant has the burden to persuade us that the
               sentence imposed by the trial court is inappropriate. Anglemyer v.
               State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007),
               decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).


      Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).


[9]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

      sentence to the circumstances presented, and the trial court’s judgment “should

      receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we




      3
         In his briefs on appeal, Lombard states that the trial court “abused its discretion in sentencing him”
      because it “failed to identify the weight it gave” to the mitigating factors and because his substance-abuse
      issues should have been seen as mitigators rather than aggravators at sentencing. Appellant’s Br. in F6-48 at
      12, Appellant’s Br. in F5-254 at 12. However, Lombard’s actual argument is that the trial court imposed a
      sentence that is “inappropriate in light of the nature of the offense and the character of the offender” under
      Indiana Appellate Rule 7(B). Id. As such, we will only analyze whether his sentence is inappropriate in light
      of the nature of the offenses and his character, and we will not consider whether the trial court abused its
      discretion.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2755 | May 23, 2018                Page 5 of 7
       regard a sentence as inappropriate at the end of the day 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.” Id. at 1224.

       The question is not whether another sentence is more appropriate, but rather

       whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] 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).


[10]   Here, the trial court identified as mitigating factors the fact that Lombard had

       pleaded guilty and accepted responsibility, that he had expressed remorse, and

       that he does not have a history of felony convictions. And the trial court

       identified the following aggravating factors: Lombard’s criminal history, which

       includes five juvenile-delinquency adjudications and twelve misdemeanor

       convictions as an adult; that he has had two of his prior sentences modified,

       that he has had his probation revoked once; and that he has had failed attempts

       at rehabilitation. The trial court also found as a specific aggravator for F6-48

       that he was out on bond for F5-254 at the time he committed the offenses.

       Accordingly, the trial court sentenced Lombard to an aggregate term of one and

       one-half years in the Indiana Department of Correction in F6-48 and one and

       one-half years in the Department of Correction in F5-254, to run consecutively.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2755 | May 23, 2018   Page 6 of 7
[11]   Lombard maintains that his sentence in F5-254 is inappropriate in light of the

       nature of the offenses because “the crime was a threat to cause harm which was

       made with the sole goal of stealing merchandise valued at $5.09[.]” Appellant’s

       Br. in F5-254 at 13. And Lombard contends that his sentence in F6-48 is

       inappropriate in light of the nature of the offenses because “[n]othing about

       these facts or circumstances make this crime one of an extraordinary nature”

       and there was “no evidence of harm or claim of restitution[.]” Appellant’s Br.

       in F6-48 at 13. Be that as it may, we consider both the nature of the offenses

       and Lombard’s character in our review. See Williams v. State, 891 N.E.2d 621,

       633 (Ind. Ct. App. 2008). And Lombard’s dubious character persuades us that

       his sentences are not inappropriate.


[12]   At the time of the sentencing hearing, Lombard’s criminal history included five

       adjudications as a juvenile delinquent and twelve misdemeanor convictions as

       an adult. Further, he has had his probation revoked once, and he has had two

       of his sentences modified. And he was out on bond in F5-254 when he

       committed the offenses in F6-48. Lombard also admits to a history of substance

       abuse, which he has been unable to overcome. As such, we cannot say that

       Lombard’s sentences are inappropriate in light of his character. Accordingly,

       we affirm his sentence.


[13]   Affirmed.


       Robb, J., and Altice, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2755 | May 23, 2018   Page 7 of 7
