MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             May 23 2019, 10:17 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
Sean C. Mullins                                         Curtis T. Hill, Jr.
Crown Point, Indiana                                    Attorney General of Indiana
                                                        Taylor C. Byrley
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Larry Gene Vickery,                                     May 23, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-2477
        v.                                              Appeal from the Lake Superior
                                                        Court
State of Indiana,                                       The Honorable Clarence D.
Appellee-Plaintiff.                                     Murray, Judge
                                                        Trial Court Cause No.
                                                        45G02-1707-F1-8



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2477 | May 23, 2019                   Page 1 of 10
                                         Statement of the Case
[1]   Larry Gene Vickery (“Vickery”) appeals, following a guilty plea, the twelve-

      year sentence imposed for his Level 3 felony criminal confinement conviction.1

      He argues that his sentence, which was ordered to be served at the Indiana

      Department of Correction, is inappropriate. Concluding that Vickery has failed

      to show that his sentence is inappropriate, we affirm his sentence.


[2]   We affirm.


                                                        Issue
              Whether Vickery’s sentence is inappropriate pursuant to Indiana
              Appellate Rule 7(B).


                                                        Facts
[3]   In July 2017, Vickery was out on bond in two separate domestic violence causes

      in which his ex-wife, Jennifer Ledbetter (“Ledbetter”), was the victim. At that

      time, she had a protective order against him. Vickery and Ledbetter have two

      daughters and a three-year-old son (“Son”). On July 6, 2017, Vickery went to

      Ledbetter’s home to speak to Son. Ledbetter did not let Vickery in the house

      because of the protective order but allowed Son to stand by the door. Vickery

      forced open the door, pushed Ledbetter to the floor, and sprayed her face with

      pepper spray. Son, who was standing nearby, was also exposed to the pepper




      1
        IND. CODE § 35-42-3-3. We note that, in the recent 2019 session, our legislature amended this statute. That
      recent amendment does not affect this appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2477 | May 23, 2019                     Page 2 of 10
      spray. Vickery handcuffed Ledbetter, beat her, and told her that he was going

      to kill her. Vickery then took the three children and fled the scene. Ledbetter

      ran to her neighbor’s house and called the police. Shortly thereafter, while the

      police were on the scene, Vickery called his mother and told her that he refused

      to turn himself into the police and that he had planned to kill Ledbetter and “go

      out with a boom on television[.]” (App. Vol. 2 at 48) (internal quotation marks

      omitted). The police later arrested Vickery.


[4]   The State charged Vickery with: (1) Level 1 felony attempted murder; (2) Level

      3 felony criminal confinement; (3) Level 5 felony criminal confinement; (4)

      Level 5 felony domestic battery by means of a deadly weapon; (5) Level 5

      felony domestic battery by means of a deadly weapon; (6) Level 6 felony

      domestic battery resulting in moderate bodily injury; (7) Level 6 felony

      domestic battery; (8) Class A misdemeanor domestic battery; (9) Class A

      misdemeanor domestic battery; (10) Level 2 felony burglary; (11) Level 3 felony

      burglary; (12) Level 5 felony battery; (13) Level 5 felony neglect of a dependent;

      (14) Level 6 felony neglect of a dependent; and (15) Class A misdemeanor

      invasion of privacy.


[5]   Vickery entered into a plea agreement and pled guilty to the Level 3 felony

      criminal confinement charge in exchange for the State’s dismissal of the

      remaining fourteen charges in this cause and the dismissal of the two other

      causes involving Ledbetter as a victim (one in which he was charged with Level

      6 felony intimidation and Class A misdemeanor invasion of privacy, and the

      other cause in which he was charged with Level 6 felony domestic battery and

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2477 | May 23, 2019   Page 3 of 10
      Level 6 felony strangulation). The plea agreement also provided that

      sentencing would be open but have a cap of twelve years.


[6]   During Vickery’s sentencing hearing, Ledbetter testified about the details of

      Vickery’s crime against her. Specifically, she testified that Vickery had planned

      his attack and that, shortly before July 6th, he had called the cable company

      and cancelled the account for her home alarm system. She also described the

      July 6th offense and how he had pepper sprayed her face and continuously

      punched and kicked her while Son “screamed in pain” from the mace that had

      gotten on him. (Tr. Vol. 3 at 11). Ledbetter begged Vickery to let her help Son,

      but Vickery refused. Instead, he repeatedly told her that he was going “to cut

      [her] body into pieces” and that she “was going to die slowly.” (Tr. Vol. 3 at

      12). She told the trial court that she and Son still had nightmares about

      Vickery’s attack and that Son would frequently “awaken in the middle of the

      night, screaming about how his father shot fireballs at us.” (Tr. Vol. 13).

      Ledbetter also read a victim-impact statement and revealed painstaking details

      about the repeated domestic abuse she had endured at the hands of Vickery

      during their thirteen-year relationship and his ongoing manipulation of her.


[7]   Vickery’s counsel acknowledged that the twelve-year sentencing cap set out in

      the plea agreement was an “appropriate” sentence, (Tr. Vol. 3 at 30), and he

      recognized that community corrections had written a letter indicating that he

      was “not eligible for direct placement to Lake County Community Corrections”

      due to committing his offense with a deadly weapon. (App. Vol. 2 at 188).

      Nevertheless, Vickery argued that the trial court should divide his twelve-year

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2477 | May 23, 2019   Page 4 of 10
      sentence in the following manner: four to five years in the Indiana Department

      of Correction, followed by three to four years in community corrections, and

      then three to four years on probation. (Tr. Vol. 3 at 30). Vickery also told the

      trial court that, at the time of his offense, he had been using steroids for two

      years, and he introduced a psychosocial assessment from 2012 and April 2017,

      which showed that he had been diagnosed with anger issues, depression, and

      anxiety.


[8]   When sentencing Vickery, the trial court commented, in part, as follows:


              The nature and circumstances of the crime are just unimaginable.
              Certainly[,] a significant aggravating factor in this case is the
              nature and circumstances of the crime.

              One of the things I heard this morning that I found especially
              disturbing was in Mr. Vickery’s own comments that he -- he
              didn’t spray his child with pepper spray. He sprayed it, and
              essentially the child walked into it. The notion that any aspect of
              that would be somehow acceptable or mitigating, I don’t
              understand the thinking there, that to spray pepper spray in
              someone’s face in the first place is a crime. He did it in his ex-
              wife’s face, in her home, around the children. The children lived
              there. That’s an extremely dangerous act. He may as well have
              sprayed it in his children’s faces. They live there. And they were
              exposed to it, at least one child was.

              This case represents one of the most disturbing accounts of
              spousal abuse that I can recall in my memory which goes back
              several years as a judge on the criminal bench. The attacks by
              Mr. Vickery, they’ve been relentless, calculated, clearly meant to
              severely injure -- and I don’t use the word lightly -- but terrorize
              the victim in this case. Mr. Vickery’s own comments this



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2477 | May 23, 2019   Page 5 of 10
              morning, in his comments he stated that he admitted to using
              control and violence to control the situation as he put it.

              I don’t know how long it would take a child or any human being
              to forget having mace sprayed at them. There was a comment
              this morning that the toddler stated that his daddy sprayed
              fireballs at him. One can only speculate if that creates a memory
              for a lifetime, it’s -- it’s mind boggling. I suspect that the
              memory will be with this child for a long time. From where I sit,
              Mr. Vickery, these children don’t need your presence in their
              lives; they need your absence. You have been an absolute
              menace to your ex-wife and your children, sir.

      (Tr. Vol. 3 at 37-38).


[9]   The trial court specifically rejected Vickery’s proffered mental health report to

      be a mitigating circumstance. The trial court, however, found Vickery’s guilty

      plea to be a mitigating circumstance but stated that it did “not carry any

      significant weight because the evidence in this case [wa]s substantial and would

      likely have lead [sic] to a conviction had the case gone to trial.” (Tr. Vol. 3 at

      38). The trial court found the following aggravating circumstances: (1)

      Vickery’s criminal history, which included seven felony convictions involving

      crimes of dishonesty2 and three probation violations; (2) the nature and

      circumstances of the crime, which the trial court found to be a significant; (3)

      Vickery committed the offense against the victim when he was on bond in two

      other domestic violence cases involving the same victim; (4) he violated a



      2
        Vickery’s seven prior felony convictions included: two separate causes for Class D felony check fraud in
      2002; Class D felony theft in 2002; Class D felony theft in 2003; Class D felony check fraud in 2003; and two
      counts of Class D felony receiving stolen property in 2011.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2477 | May 23, 2019                     Page 6 of 10
       protective order against the victim; and (5) Vickery’s “morally depraved”

       character. (App. Vol. 2 at 121). The trial court imposed a twelve (12) year

       sentence and ordered it to be executed at the Indiana Department of Correction

       “with no alternative placement and no probation.” (Tr. Vol. 3 at 38). Vickery

       now appeals.


                                                   Decision
[10]   Vickery argues that his twelve-year sentence is inappropriate. He does not

       challenge the duration of his sentence, which was within the sentencing cap

       contained in his plea agreement. Instead, Vickery challenges the trial court’s

       sentencing decision regarding placement, arguing that this Court should order

       the trial court to impose a “split sentence” with the time divided equally

       between community corrections and the Indiana Department of Correction.

       (Vickery’s Br. 10).


[11]   We may revise a sentence if it is inappropriate in light of the nature of the

       offense and the character of the offender. Ind. Appellate Rule 7(B). The

       defendant has the burden of persuading us that his sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a

       Rule 7(B) review “should be to attempt to leaven the outliers, and identify some

       guiding principles for trial courts and those charged with improvement of the

       sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

       Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2477 | May 23, 2019   Page 7 of 10
[12]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence “is the starting point the Legislature has selected as an

       appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.

       Here, Vickery entered a guilty plea and was convicted of Level 3 felony

       criminal confinement. A Level 3 felony has a sentencing range of six (6) years

       to sixteen (16) years with an advisory sentence of nine (9) years. I.C. § 35-50-2-

       5(b). The trial court imposed a twelve-year sentence, which is less than the

       maximum sentence and consistent with the sentencing cap set out in Vickery’s

       plea agreement.


[13]   The location where a sentence is to be served is an appropriate focus for our

       review and revise authority under Appellate Rule 7(B). Biddinger v. State, 868

       N.E.2d 407, 414 (Ind. 2007). However, “it will be quite difficult for a defendant

       to prevail on a claim that the placement of his or her sentence is inappropriate.”

       Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct. App. 2007). Indeed, “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.” Id. at 344 (emphasis in original). “A defendant challenging the

       placement of a sentence must convince us that the given placement is itself

       inappropriate.” Id.


[14]   Turning to the nature of Vickery’s criminal confinement offense, we note that

       Vickery acknowledges the “aggravating nature” of the offense. (Vickery’s Br.

       8). The trial court found the nature and circumstances of Vickery’s offense to

       be “unimaginable” and “significant[.]” (Tr. Vol. 3 at 37). The record reveals

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2477 | May 23, 2019   Page 8 of 10
       that Vickery cancelled the account for his ex-wife’s home alarm system shortly

       before he went to her house where he sprayed her face with mace, handcuffed

       her, repeatedly beat her, and threatened to kill her. Indeed, he repeatedly told

       her that he was going “to cut [her] body into pieces” and that she “was going to

       die slowly.” (Tr. Vol. 3 at 12). The nature of his offense was exacerbated by

       the fact that Vickery committed his brutal acts against Ledbetter in the presence

       of their three-year-old child, who “screamed in pain” from the mace that

       Vickery had sprayed and who had to watch as Vickery beat the toddler’s mother

       and refused to let her console the young boy. (Tr. Vol. 3 at 11).


[15]   Turning to Vickery’s character, we note that his poor character is revealed by

       the facts that he committed his offense against Ledbetter while he was out on

       bond from two domestic abuse cases involving Ledbetter and that he did so in

       violation of the protective order she had against him. Additionally, he has a

       criminal history, consisting of seven prior felony convictions and three

       probation violations. Vickery contends that his prior convictions, which

       included check fraud, theft, and receiving stolen property, show that he has “a

       non-violent character[.]” (Vickery’s Br. 9). He seems to suggest that we should

       ignore Ledbetter’s victim impact statement made during the sentencing hearing,

       which revealed that Vickery’s character was far from “non-violent.” When

       reflecting on Vickery’s character, the trial court noted that Vickery was

       “morally depraved and use[d] violence as a means of control[,]” and the trial

       court “consider[ed] [Vickery] to be extremely dangerous to the victim and her

       children because of the numerous charges and protective orders involving the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2477 | May 23, 2019   Page 9 of 10
       same victim[.]”(App. Vol. 2 at 121). Furthermore, the record reveals that

       community corrections determined that Vickery was not eligible for such

       placement because his offense involved the use of a deadly weapon.


[16]   Vickery has not persuaded us that his twelve-year sentence and placement in

       the Indiana Department of Correction for his Level 3 felony criminal

       confinement conviction is inappropriate. Therefore, we affirm the sentence

       imposed by the trial court.


[17]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2477 | May 23, 2019   Page 10 of 10
