MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  FILED
court except for the purpose of establishing                           Jul 28 2017, 9:47 am
the defense of res judicata, collateral                                    CLERK
estoppel, or the law of the case.                                      Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Karen M. Heard                                           Curtis T. Hill, Jr.
Evansville, Indiana                                      Attorney General of Indiana

                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher D. Berry,                                    July 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A01-1611-CR-2695
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable Kelli Fink,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1508-F5-4719



Barnes, Judge.


                                          Case Summary



Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2695 | July 28, 2017           Page 1 of 8
[1]   Christopher D. Berry appeals his sentence for Level 6 felony intimidation and

      Class A misdemeanor conversion. We affirm.


                                                      Issues

[2]   Berry raises two issues on appeal, which we restate as:

                I.     whether the trial court abused its discretion by imposing a
                       three-year sentence; and


               II.     whether the trial court’s sentence was inappropriate in
                       light of the nature of the offense and the character of the
                       offender.


                                                      Facts

[3]   On August 5, 2015, De’Shawna Brown was dating Berry, and had recently

      gotten into an altercation with another woman he was also dating. After the

      altercation she went to find Berry to speak with him. When she located Berry,

      he walked away from her and into a nearby alley. Brown followed him and

      when she caught up with him he pulled a handgun, pointed it at her leg, and

      threatened to kill her. As Brown was on the phone with a 911 dispatcher, she

      observed Berry drop the gun in a trashcan nearby. When officers arrived, they

      recovered the gun, which turned out to be stolen.


[4]   On August 7, 2015, Berry was charged with Level 5 felony intimidation, Level

      6 felony theft of a firearm, and Class A misdemeanor carrying a handgun

      without a license. On November 10, 2015, Berry pled guilty to Level 5 felony

      intimidation and Class A misdemeanor conversion. On the same day, a pretrial

      Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2695 | July 28, 2017   Page 2 of 8
      diversion agreement was filed. A sentencing hearing was held on November

      25, 2015. During the hearing, the trial court accepted Berry’s plea and ordered

      Berry to successfully complete the terms of the pretrial diversion program. If

      Berry competed the program successfully, his case would be dismissed.

      Pursuant to the agreement, Berry was required to obey all laws.


[5]   While participating in the pretrial diversion program, Berry was charged and

      convicted in a separate criminal proceeding with carrying a handgun without a

      license. Because Berry had violated the terms of the pretrial diversion

      agreement by being convicted of another crime, the State, on May 16, 2016,

      filed a motion to set a hearing for final judgment in his intimidation and

      conversion case. The trial court granted the State’s motion and set a hearing for

      August 30, 2016. On that day, the trial court entered convictions for Level 5

      felony intimidation and Class A misdemeanor conversion, and then proceeded

      to sentence Berry. The trial court found mitigating the fact that Berry pled

      guilty and accepted responsibility for his crimes. It found as aggravators Berry’s

      previous juvenile adjudication and recent conviction for carrying a handgun

      without a license. The trial court sentenced Berry to three years for

      intimidation, with 182 days executed in the Department of Correction (“DOC”)

      and the rest suspended to probation, and a concurrent sentence of 182 days for

      conversion. The trial court denied Berry’s motion to correct error, and he now

      appeals.


                                                    Analysis

                                          I.    Abuse of Discretion
      Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2695 | July 28, 2017   Page 3 of 8
[6]   Berry argues that the trial court abused its discretion when it “used [his]

      misdemeanor to 1) revoke him from the pretrial diversion program; 2) enter the

      conviction on the felony; and 3) enhance his sentence.” Appellant’s Br. p. 8.

      Sentencing decisions rest within the sound discretion of the trial court and are

      reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868

      N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An

      abuse of discretion occurs when the decision is clearly against the logic and

      effect of the facts and circumstances before the court. Id. Indiana Code Section

      35-38-1-7.1(a) provides in part, “in determining what sentence to impose for a

      crime, a court may consider the following aggravating circumstance: . . . (2)

      [t]he person has a history of criminal or delinquent behavior.” The trial court

      may also consider whether, “[t]he person has recently violated the conditions of

      any probation … or pretrial release granted to the person.” See Ind. Code § 35-

      38-1-7.1(a)(6). A trial court may consider any offense in a defendant’s criminal

      history so long as those records are reflected in the presentencing investigation

      report. See Robertson v. State, 871 N.E.2d 280, 287 (Ind. 2007). If a new offense

      was committed after the instant offense, but prior to sentencing, the court may

      properly consider such offense as an aggravating circumstance. Id.


[7]   A trial court does not have an obligation to properly weigh aggravating and

      mitigating factors against each other. Anglemyer, 868 N.E.2d at 491. Therefore,

      a trial court cannot be said to have abused its discretion by failing to weigh such

      factors. Id. Once a trial court has issued a sentencing statement it may then

      impose any sentence that is authorized by statute. Id.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2695 | July 28, 2017   Page 4 of 8
[8]    Berry argues that once the trial court revoked his pretrial diversion agreement,

       pursuant to his conviction for carrying a handgun without a license, it was not

       then allowed to consider the conviction as an aggravating circumstance in

       determining the appropriate sentence for his current conviction. He essentially

       argues that this action would be “double aggravation.” We disagree.


[9]    Berry violated the terms of the agreement when he was convicted of carrying a

       handgun without a license. The trial court used the conviction to determine

       that Berry failed to complete the diversion program and revoke him from the

       program, and then found the same conviction to be an aggravating

       circumstance when deciding the sentence it imposed on his guilty plea. It did

       not abuse its discretion in doing so, especially since it imposed concurrent

       sentences. See, Pedraza v. State, 887 N.E.2d 77 (Ind. 2008) (holding that a trial

       court may use a single prior conviction as both an element to convict defendant

       of an enhanced crime and as an aggravating circumstance to enhance the

       sentence imposed, but it cannot be used to support consecutive sentences).


                                    II.     Appropriateness of Sentence

[10]   Berry argues that the sentence imposed was inappropriate in light of the nature

       of the offense and his character. We determine whether Berry’s sentence is

       inappropriate under Indiana Appellate Rule 7(B). See Anglemyer, 868 N.E.2d at

       491. Although Rule 7(B) does not require us to be “extremely” deferential to a

       trial court’s sentencing decision, we still must give due consideration to that

       decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We

       also understand and recognize the unique perspective a trial court brings to its
       Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2695 | July 28, 2017   Page 5 of 8
       sentencing decisions. Id. “Additionally, a defendant bears the burden of

       persuading the appellate court that his or her sentence is inappropriate.” Id.


[11]   The principal role of 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). We “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.” Id. Whether a sentence is inappropriate

       ultimately turns on 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. When reviewing the appropriateness of a sentence

       under Rule 7(B), we may consider all aspects of the penal consequences

       imposed by the trial court in sentencing the defendant, including whether a

       portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,

       1025 (Ind. 2010).


[12]   The advisory sentence is the starting point to determine the appropriateness of

       the sentence. See Anglemyer, 868 N.E.2d at 494. Pursuant to Ind. Code § 35-50-

       2-6 (b), “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.” A person convicted of a Class A misdemeanor “shall be imprisoned for

       a fixed term of not more than one year.” See Ind. Code § 35-50-3-2. Here,

       Berry received concurrent sentences of three years on the felony charge and six

       Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2695 | July 28, 2017   Page 6 of 8
       months on the misdemeanor charge, executed in the DOC, with two-and-one-

       half years suspended to probation on the felony charge. 1


[13]   Regarding the nature of the offense, Berry concedes that the nature of the crime

       was serious. Berry pointed a loaded gun at the victim in this case and

       threatened to kill her. Also, the gun was stolen. The nature of the offense does

       not warrant a sentence reduction.


[14]   Our review of the character of the offender reveals that Berry has a prior

       juvenile conviction for dealing in marijuana. While in a pretrial diversion

       program for threatening someone with a stolen, unlicensed handgun, Berry

       again was caught carrying an unlicensed handgun. Clearly, this second event

       speaks to Berry’s bad character.


[15]   After considering the nature of the offense and Berry’s character, we cannot

       conclude that his sentence is inappropriate. This is especially true in light of the

       fact that the trial court showed leniency by suspending two-and-one-half years

       of Berry’s three-year sentence.2


                                                         Conclusion




       1
           Berry incorrectly argues that he received a sentence above the advisory for a Level 5 felony.
       2
        Berry also argues that the trial court failed to consider his “limited” criminal history and that the
       presentence investigation report indicated Berry was unlikely to reoffend as mitigators. Appellant’s Br. p. 13.
       This argument is waived because it falls under an abuse of discretion analysis, which Berry does not fully
       develop. Under an inappropriate sentence analysis we only consider the nature of the offense and the
       character of the offender. See King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008).

       Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2695 | July 28, 2017                Page 7 of 8
[16]   The trial court did not abuse its discretion in sentencing Berry. Also, the trial

       court did not impose an inappropriate sentence in light of the nature of the

       offenses and Berry’s character. We affirm.


[17]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2695 | July 28, 2017   Page 8 of 8
