                                                                       Aug 05 2013, 5:23 am

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
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:

RYAN P. DILLON                                  GREGORY F. ZOELLER
Dillon Legal Group, P.C.                        Attorney General of Indiana
Franklin, Indiana
                                                ERIC P. BABBS
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ZACHARIAH GALYAN,                               )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 55A01-1303-CR-140
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MORGAN SUPERIOR COURT
                        The Honorable Jane Spencer Craney, Judge
                            Cause No. 55D03-1210-FD-1503



                                      August 5, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          The appellant-defendant, Zachariah Galyan, challenges the appropriateness of the

three-year sentence that was imposed following his conviction for Intimidation,1 a class D

felony. We find that Galyan’s prior criminal record, including the fact that he was on

probation when he committed the offense, and the fear that he imparted to the victim and

his family justifies this sentence. Thus, we affirm the trial court’s judgment.

                                          FACTS

          On October 16, 2012, Galyan was arrested for public intoxication. While in a

holding cell at the jail, Galyan indicated to one of the officers that he wanted to speak

with him. Galyan informed the officer that he was in jail because of the Chief Deputy.

More particularly, Galyan told the officer that he knew where the Chief Deputy lived, and

when he was released, he was going to “beat” the Chief Deputy’s “ass.” Tr. p. 9. The

officer knew that the Chief Deputy lived only a few hundred yards from Galyan and

would see Galyan on a daily basis. Thus, the officer notified the Chief Deputy of

Galyan’s threat. As a result, the Chief Deputy subsequently adjusted his home security

cameras. The Chief Deputy’s wife, who also worked in law enforcement, began carrying

a firearm while she was performing yard work. Galyan acknowledged that his threat

likely caused alarm to the Chief Deputy and his family.

          Galyan was charged with two counts of intimidation. He pleaded guilty to one

count in exchange for the State’s dismissal of the other charge.          Galyan was later




1
    Ind. Code § 35-45-2-1.
                                              2
sentenced to three years of incarceration and he now appeals, challenging the

appropriateness of the sentence.

                            DISCUSSION AND DECISION

       In addressing Galyan’s claim, we may revise his sentence only if, after due

consideration of the trial court’s decision, the sentence is “inappropriate in light of the

nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B). It is

the defendant’s burden to persuade us that the sentence is inappropriate. Childress v.

State, 848 N.E.2d 1073, 1080 (Ind. 2006). One relevant factor is the defendant’s criminal

history. Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011).

       In this case, Galyan’s criminal record included juvenile adjudications for burglary,

dangerous possession of a firearm, and theft in one case, possession of a controlled

substance in another case, and theft in a third case. As an adult, Galyan was convicted of

residential burglary, a class B felony, in 2010. When Galyan committed the intimidation

offense, he was in violation of the terms of his probation.       Galyan testified at his

sentencing hearing that he had abused alcohol and illegal drugs.        Tr. p. 21.    Both

Galyan’s trial counsel and the trial court noted that Galyan displayed an attitude at the

hearing suggesting that he did not take the proceedings seriously. Id. at 32. Moreover,

although Galyan acknowledged the need to apologize to the Chief Deputy, he never did.

Id. at 24.




                                            3
        In light of these circumstances, we find that the three-year sentence, which is the

maximum term for a class D felony,2 is not inappropriate under Indiana Appellate Rule

7(B). Galyan’s prior criminal history, including the fact that he was on probation when

he committed the instant offense, coupled with the fear that he imparted to the Chief

Deputy and his family, justifies the sentence. See Bailey v. State, 979 N.E.2d 133, 143

(Ind. 2012) (observing that the defendant, while on probation for a similar offense, along

with a lengthy criminal history that included eleven prior adult convictions, justified the

imposition of a two-year sentence for domestic battery).

        The judgment of the trial court is affirmed.

FRIEDLANDER, J., and VAIDIK, J., concur.




2
  Ind. Code section 35-50-2-7 provides that the sentencing range for a class D felony is from six months
to three years, with an advisory sentence of one-and-one-half years.
                                                   4
