MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                  FILED
regarded as precedent or cited before any                                         Aug 28 2020, 8:19 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
Donald E.C. Leicht                                       Curtis T. Hill, Jr.
Peru, Indiana                                            Attorney General of Indiana
                                                         Samuel J. Dayton
                                                         Deputy Attorney General
                                                         Alexandria Sons
                                                         Certified Legal Intern
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert M. Rogers,                                        August 28, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-455
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable Hans S. Pate,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         34D04-1901-F4-110



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-455 | August 28, 2020           Page 1 of 6
                                          Case Summary
[1]   Robert M. Rogers (“Rogers”) pled guilty to Possession of a Firearm by a

      Serious Violent Felon, a Level 4 felony.1 He was sentenced to twelve years

      imprisonment, with three years suspended. He presents the sole issue of

      whether his sentence is inappropriate. We affirm.



                                Facts and Procedural History
[2]   On January 6, 2019, Kokomo Police Officers Andrew Grammer (“Officer

      Grammer”) and Graham Dennis (“Officer Dennis”) were on patrol together

      when they observed a vehicle make a turn without proper use of a turn signal.

      Officer Grammer activated his lights and siren to initiate a vehicle stop. As the

      officers followed behind the vehicle, they observed the passenger, later

      identified as Rogers, move about and reach toward the floorboard. The

      pursued vehicle came to an abrupt stop, then Rogers exited and took off

      running.


[3]   The officers gave chase, and Officer Grammer deployed his Taser twice but it

      did not connect with Rogers. Officer Grammer observed Rogers reach toward

      his waistband, remove his right hand from the waistband area, and turn his

      body back and to the left. Concerned that Rogers was armed with a handgun,

      Officer Grammer decided to use deadly force. He threw down the Taser and




      1
          Ind. Code § 35-47-4-5(c).


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-455 | August 28, 2020   Page 2 of 6
      drew his Glock 17 handgun. At that moment, Rogers fell. No shots were fired.

      Rogers jumped up and took off running again. He was later found hiding in a

      nearby shed. Officer Dennis returned to the area where Rogers had fallen and

      found a Smith & Wesson handgun with one live round of ammunition, together

      with a magazine with fourteen live 9 mm rounds.


[4]   On January 11, 2019, Rogers was charged with Possession of a Firearm by a

      Serious Violent Felon, Possession of a Syringe, a Level 6 felony,2 and Resisting

      Law Enforcement, as a Level 6 felony.3 Rogers and the State reached a plea

      bargain whereby Rogers would plead guilty to the firearm possession count and

      his executed term of imprisonment in the Indiana Department of Correction

      (“the DOC”) would be capped at nine years. On January 15, 2020, Rogers pled

      guilty to the firearm possession charge, stipulating to the accuracy of the facts

      stated in the probable cause affidavit.


[5]   On February 14, 2020, the trial court sentenced Rogers to twelve years

      imprisonment and suspended three years to probation, such that Rogers’s term

      of imprisonment in the DOC was capped at nine years. The trial court

      recommended to the DOC that Rogers be permitted to participate in the

      Purposeful Incarceration program, and specified in the sentencing order that




      2
          I.C. § 16-42-19-18.
      3
          I.C. § 35-44.1-3-1.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-455 | August 28, 2020   Page 3 of 6
      Rogers could, upon completion of that program, petition for a sentence

      modification. Rogers now appeals.



                                 Discussion and Decision
[6]   Rogers contends that his sentence is inappropriate. He argues that his criminal

      activity stems from his history of substance abuse and his rehabilitation could

      be achieved in less than nine years in the DOC.


[7]   Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent

      appellate review and revision of a sentence imposed by a trial court. See, e.g.,

      Sanders v. State, 71 N.E.3d 839, 843 (Ind. Ct. App. 2017), trans. denied. This

      appellate authority is embodied in Indiana Appellate Rule 7(B). Id. Under

      7(B), the appellant must demonstrate that his sentence is inappropriate in light

      of the nature of his offense and his character. Id. (citing Ind. Appellate Rule

      7(B)). In these instances, deference to the trial courts “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).


[8]   The Indiana Supreme Court has explained that the principal role of appellate

      review is an attempt to leaven the outliers, “not to achieve a perceived ‘correct’

      result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). The

      question is not whether another sentence is more appropriate, but whether the


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-455 | August 28, 2020   Page 4 of 6
       sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct.

       App. 2008).


[9]    A defendant convicted of a Level 4 felony is subject to a sentencing range of

       two to twelve years, with an advisory sentence of six years. I.C. § 35-50-2-5.5.

       Rogers received a twelve-year sentence, with three years suspended. Upon the

       review of sentence appropriateness under Appellate Rule 7, appellate courts

       may consider all aspects of the penal consequences imposed by the trial judge in

       sentencing the defendant, including suspension. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010).


[10]   We first look to the nature of the offense. Rogers did not simply possess a

       weapon without risk of danger to others. Rather, he fled on foot while armed

       with a handgun with a live round inside. He appeared to be pointing the

       weapon directly at Officer Grammar, causing the officer to fear that Rogers was

       ready to fire upon him. The handgun was found abandoned with a magazine

       with an additional fourteen live rounds of ammunition.


[11]   Next, we consider the defendant’s character. Rogers has an extensive criminal

       history beginning at age eighteen. He has eight felony and ten misdemeanor

       convictions. These include two firearm offenses and four batteries. Rogers has

       five probation violations and two violations of in-home detention conditions.

       One violation involved Rogers cutting off his ankle monitor after serving

       eighteen days in home detention. He was in home detention placement at the

       time he committed the instant offense.


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-455 | August 28, 2020   Page 5 of 6
[12]   Neither the evidence of the nature of the offense nor the evidence of Rogers’s

       character militates toward a lesser sentence. In sum, Rogers has failed to

       persuade us that his sentence is inappropriate.



                                               Conclusion
[13]   The sentence imposed upon Rogers is not inappropriate.


[14]   Affirmed.


       Vaidik, J., and Baker, Sr. J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-455 | August 28, 2020   Page 6 of 6
