      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                   FILED
      this Memorandum Decision shall not be
                                                                          Apr 30 2018, 6:17 am
      regarded as precedent or cited before any
      court except for the purpose of establishing                             CLERK
                                                                           Indiana Supreme Court
      the defense of res judicata, collateral                                 Court of Appeals
                                                                                and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Adam C. James                                            Curtis T. Hill, Jr.
      Shelbyville, Indiana                                     Attorney General of Indiana
                                                               Caroline G. Templeton
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Terry E. Belden,                                         April 30, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               73A04-1709-CR-2242
              v.                                               Appeal from the Shelby Superior
                                                               Court
      State of Indiana,                                        The Honorable R. Kent Apsley,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               73D01-1609-F5-71



      Mathias, Judge.

[1]   Terry E. Belden (“Belden”) pleaded guilty in Shelby Superior Court to Level 5

      felony operating a motor vehicle with a lifetime license forfeiture and was


      Court of Appeals of Indiana | Memorandum Decision 73A04-1709-CR-2242 | April 30, 2018        Page 1 of 7
      sentenced to four years of incarceration. Belden appeals and argues that his

      sentence is inappropriate in light of the nature of his offense and his character.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On the afternoon of September 16, 2016, Indiana State Police Sergeant Dennis

      Scudder (“Sgt. Scudder”) was driving his patrol car westbound on Interstate 74

      when he observed a car traveling at a slow speed pull off onto the right shoulder

      of the highway. Sgt. Scudder pulled his car behind the other car to see if the

      driver needed assistance. Sgt. Scudder spoke with the driver of the car, Belden,

      and quickly learned that Belden was an habitual traffic violator whose license

      had been forfeited for life. Belden was then placed under arrest.


[4]   On September 21, 2016, the State charged Belden with Level 5 felony operating

      a motor vehicle with a lifetime license forfeiture. A bench trial was scheduled

      for August 1, 2017, but on the day the trial was to occur, Belden entered an

      open plea of guilty. A sentencing hearing was held on August 30, 2017. At the

      hearing, Belden explained that he did not have a ride to work on the day he was

      arrested, so he drove to work despite being aware of his lifetime license

      forfeiture and his status as an habitual traffic violator. Belden testified that he

      has two minor children—a sixteen-year-old child for whom he pays child




      Court of Appeals of Indiana | Memorandum Decision 73A04-1709-CR-2242 | April 30, 2018   Page 2 of 7
      support,1 and a one-year-old child—and that he was living with the younger

      child’s mother, who has some cognitive problems and was on disability.


[5]   The trial court found as mitigating that Belden was the father of two dependent

      children and that incarceration would be a hardship to them. The court also

      found as mitigating that Belden was gainfully employed. The court found as

      aggravating Belden’s significant criminal history, especially that nine of

      Belden’s prior arrests were for habitual traffic violator offenses and five of those

      arrests came after Belden had his driving privileges forfeited for life. Belden’s

      arrests led to numerous convictions; he was convicted of driving as an habitual

      traffic violator in 1988, 1989, 2001, 2005, and 2012. Belden also has prior

      convictions for operating a vehicle while intoxicated, theft, and burglary. In

      total, Belden has accumulated six felony and ten misdemeanor convictions.

      Belden himself agreed with the State’s characterization that “[t]he majority of

      your adult life you’ve either been incarcerated or had a case pending or been on

      probation or parole.” Tr. p. 29. The court also found as a significant aggravator

      that Belden had been released from prison for the very same offense only ten

      months before the current incident. Further, despite the condition of his release

      on bond that he not commit any additional criminal offense, there was evidence

      presented at the sentencing hearing that Belden repeatedly continued to drive

      while out on bond.




      1
          Belden acknowledged that he has a child support arrearage for the older child.


      Court of Appeals of Indiana | Memorandum Decision 73A04-1709-CR-2242 | April 30, 2018   Page 3 of 7
[6]   The trial court ultimately decided to impose an executed sentence of four years

      at the Department of Correction, stating:


              But I’ll be quite honest with you, Mr. Belden, based on your
              prior criminal history, based on the evidence that I’ve heard
              about your continuing to drive while you’re on bond, and your
              history of driving after conviction for the same offense, I mean,
              your prior criminal history is ridiculous. I think it, you know, the
              definition of insanity is continuing to do the same thing and
              expecting a different result. I . . . I’m not gonna sit here and
              pretend that if I put you on probation, or if I put you on house
              arrest, or work release, or something like . . . I’m not going to
              pretend that I’m putting you on one of those programs and that
              you won’t drive because your history is, the evidence is that
              you’re gonna drive no matter what I say, no[] matter what the
              legislature says, no matter what conditions I put on you, you’re
              gonna drive so it’s ridiculous for me to put you on any kind of a
              program that allows you an opportunity to drive, and for me to
              pretend that you’re not going to. So that having been said,
              probation to me doesn’t strike me as a logical option. Home
              detention does not strike me as a logical option in this matter.
              Again, you know, I’m not gonna put those kinds of conditions on
              you and pretend you’re gonna abide by them and then us end up
              back here and me setting you up for failure in that regard. The
              only thing that makes sense to me in this case is an executed
              sentence.


      Tr. p. 51. Belden now appeals.


                                     Discussion and Decision
[7]   On appeal, Belden argues that his four-year executed sentence is inappropriate.

      Even if a trial court acted within its statutory discretion in imposing a sentence,

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

      Court of Appeals of Indiana | Memorandum Decision 73A04-1709-CR-2242 | April 30, 2018   Page 4 of 7
      appellate review and revision of a sentence imposed by the trial court. Rose v.

      State, 36 N.E.3d 1055, 1063. This constitutional authority is implemented

      through Indiana Appellate Rule 7(B), which provides that we “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.”


[8]   Still, we must exercise deference to a trial court’s sentencing decision, because

      Rule 7(B) requires us to give “due consideration” to that decision and because

      we understand and recognize the unique perspective a trial court brings to its

      sentencing decisions. Id. Although we have the power to review and revise

      sentences, the principal role of appellate 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 what

      we perceive to be a “correct” result in each case. Cardwell v. State, 895 N.E.2d

      1219, 1225 (Ind. 2008).


[9]   Our review under Appellate Rule 7(B) 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. The

      appropriate question is not whether another sentence is more appropriate;

      rather, the question is whether the sentence imposed is inappropriate. Rose, 36

      N.E.3d at 1063. It is the defendant’s burden on appeal to persuade us that the

      sentence imposed by the trial court is inappropriate. Childress v. State, 848

      N.E.2d 1073, 1080 (Ind. 2006)).

      Court of Appeals of Indiana | Memorandum Decision 73A04-1709-CR-2242 | April 30, 2018   Page 5 of 7
[10]   Here, Belden was convicted of a Level 5 felony and sentenced to four years.

       The sentencing range for a Level 5 felony is one to six years, with an advisory

       sentence of three years. Ind. Code § 35-50-2-6(b). Thus, Belden’s four-year

       sentence is one year above the advisory sentence and two years below the

       maximum sentence. With this in mind, we consider the nature of the offense

       and the character of the offender.


[11]   With regard to the nature of the offense, Belden argues that his offense was

       non-violent. But regardless of whether his offense was violent, our General

       Assembly has classified it as a Level 5 felony. And given his extensive criminal

       history, Belden knew well that he was not permitted to drive, and his family

       had even made arrangements to get him to work without driving. Yet when his

       normal ride to work was unavailable, Belden did not seek out alternative means

       of transport, but instead decided to drive both to and from work. Nothing about

       the nature of this offense convinces us that Belden’s four-year sentence is

       inappropriate.


[12]   We now turn our consideration to the character of the offender. When

       considering the character of the offender, one relevant fact is the defendant’s

       criminal history. Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015),

       trans. denied. The significance of a defendant’s criminal history varies based on

       the gravity, nature, and number of prior offenses in relation to the current

       offense. Id.




       Court of Appeals of Indiana | Memorandum Decision 73A04-1709-CR-2242 | April 30, 2018   Page 6 of 7
[13]   As detailed above, Belden has an extensive criminal history that includes six

       felony convictions and ten misdemeanor convictions. He has six prior

       convictions for operating a motor vehicle as an habitual traffic violator. Belden

       has been shown leniency in the past, including probation, work release, home

       detention, and community corrections. Yet he violated the terms of his

       probation, home detention, and community corrections. Still, his criminal

       behavior has been undeterred. Just ten months prior to the instant offense, he

       was released from incarceration for committing the very same offense. And

       when he was released on bond in the present case, he continued to flout the law

       and drive. Belden’s extensive criminal history reveals that he is a scofflaw when

       it comes to our state’s vehicular rules and regulations. There is nothing about

       Belden’s character, as revealed by his criminal history and disregard for the

       laws of this state, which persuades us that his four-year sentence is

       inappropriate.


[14]   Affirmed.


       Najam, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 73A04-1709-CR-2242 | April 30, 2018   Page 7 of 7
