MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                           Oct 26 2015, 9:00 am
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
Marielena Duerring                                       Gregory F. Zoeller
South Bend, Indiana                                      Attorney General of Indiana

                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Sammie L. Binion,                                        October 26, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1503-CR-106
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable John M.
Appellee-Plaintiff.                                      Marnocha, Judge
                                                         Trial Court Cause No.
                                                         71D02-1408-F6-122



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1503-CR-106| October 26, 2015   Page 1 of 7
                                       Statement of the Case
[1]   Sammie L. Binion appeals his sentence following his convictions for resisting

      law enforcement, as a Level 6 felony, and theft, as a Level 6 felony. Binion

      raises a single issue for our review, namely, whether his sentence is

      inappropriate in light of the nature of the offenses and his character. We affirm.


                                 Facts and Procedural History
[2]   On August 22, 2014, Andrew Wynn, an asset protection officer at a Walmart

      store in South Bend, observed Binion place two pairs of pants in a shopping

      basket and then attempt to leave the store without having paid for them. Wynn

      stopped Binion and began to escort him back into the store, but Wynn then

      “took off running.” Tr. at 115. Wynn observed Binion leave the premises in a

      vehicle, and Wynn reported the vehicle to South Bend Police Department

      Officer Brad Rohrscheib, who was nearby.


[3]   Officer Rohrscheib pursued Binion in a fully marked vehicle with his lights and

      sirens activated. But Binion refused to stop for Officer Rohrscheib. Instead,

      Binion drove away “at a pretty high rate of speed and . . . created some

      distance.” Id. at 143. However, as Binion attempted to navigate a right turn,

      he lost control of his vehicle and crashed into a truck. Undeterred, Binion

      exited his wrecked vehicle and continued to flee on foot. Binion climbed a

      fence to access a golf course, where he “jumped down into [a] ravine drainage

      ditch area” that “lead to an underground drainage system or culvert . . . .” Id.




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      at 179. While some officers gave chase, at the other end of the culvert other

      officers awaited Binion. Once he exited the culvert, they arrested him.


[4]   The State charged Binion, in relevant part, with resisting law enforcement, as a

      Level 6 felony; theft, as a Level 6 felony; and failure to stop after an accident, as

      a Class C misdemeanor. The court found Binion guilty after a bench trial.

      And, following a sentencing hearing, the court sentenced Binion as follows:


              Well, the problem, Mr. Binion, is that you haven’t done anything
              different since the age of sixteen.

              You first came to the attention of the criminal justice system
              when you were sixteen by committing three crimes[:] battery[]
              resulting in bodily injury, criminal mischief[,] and another
              battery. And all of those would be misdemeanors, if committed
              by an adult.

              Then as an adult you have . . . twelve misdemeanors and three
              prior felony convictions.

              There is resisting by flight, criminal trespass, criminal conversion.
              All of those were . . . suspended sentence[s] and probation.

              You have your first felony in 2005 for forgery. That was
              suspended, and [it] looks like you were put on probation, but the
              probation was revoked because of the commission of a new
              criminal offense.

              Then driving never having a license[;] I’m not so concerned
              about that.

              But in 2006, you’re back at it again[. B]attery, interfering with
              the reporting of a crime, then trespass after that.


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        There is another trespass, driving while never having a license,
        resisting law enforcement, possession of marijuana[.]

                                               ***

        Then there is a battery again, where there was a failure in that
        situation to complete the BIP program Madison Center.

        Then that takes us up to 2010, where there’s a theft conviction as
        a D felony. A petition to revoke probation based upon two new
        criminal offenses. It looks like you ended up going to the DOC
        on that one.

        Then another theft, which is one of the ones you got revoked
        for[.] Theft, as a D felony. Then you ended up in that case
        getting released from the DOC in July of 2013.

        Then there was a parole violation and you were returned to the
        DOC. . . .

        You got out of the DOC on March 13, 2014 . . . .

        Then in the midst of all of that, you get another criminal
        conversion.

        Then you have this situation here.

        It was, quite honestly . . . a rather routine shoplifting case[] until
        you decided to take off from the officers. Then it got to be a lot
        more serious.

        When I look at these resisting by flight when a vehicle is used,
        there are those situations where they get filed where I think that
        the person was just sort of contemplating in their mind whether
        they were going to stop or not stop, and it just took them a few
        blocks to make that determination. Or maybe they were close to


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              home and they didn’t want to get their car towed, so they drove
              home.

                                                     ***

              But this is the kind of offense that the statute should apply to.
              This was a very dangerous situation[. Y]ou led the police on a
              very prolonged chase at very high speeds[. I]t endangered
              everybody that was on the road, including the police that were
              chasing you.

              And you end up hitting somebody’s car, then you continue to
              take off from that.

              So that kind of sets it apart.


      Id. at 251-54. The court then ordered Binion to serve an aggregate term of two

      and one-half years in the Department of Correction. This appeal ensued.


                                     Discussion and Decision
[5]   Binion argues that his sentence is inappropriate in light of the nature of the

      offenses and his character. Article 7, Sections 4 and 6 of the Indiana

      Constitution “authorize[] independent appellate review and revision of a

      sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind.

      Ct. App. 2007) (alteration original). This appellate authority is implemented

      through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule

      7(B) requires the appellant to demonstrate that his sentence is inappropriate in

      light of the nature of his offenses and his character. See Ind. Appellate Rule

      7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess


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      the trial court’s recognition or non-recognition of aggravators and mitigators as

      an initial guide to determining whether the sentence imposed was

      inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006).

      However, “a defendant must persuade the appellate court that his or her

      sentence has met th[e] inappropriateness standard of review.” Roush, 875

      N.E.2d at 812 (alteration original).


[6]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

      sentence to the circumstances presented, and the trial court’s judgment “should

      receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224

      (Ind. 2008). The principal role of appellate review is to attempt to “leaven the

      outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

      end of the day turns on “our sense of the culpability of the defendant, the

      severity of the crime, the damage done to others, and myriad other facts that

      come to light in a given case.” Id. at 1224.


[7]   Here, Binion asserts that “the trial court sentenced [him] to [the] maximum

      sentence allowable for a Level 6 felony,” which should not apply to him

      because his offenses were not the “worst offenses” and he is not the

      “worst . . . offender[].” Appellant’s Br. at 4. But the premise underlying

      Binion’s argument on appeal is mistaken. While the maximum sentence for a

      single Level 6 felony is two and one-half years, Ind. Code § 35-50-2-7 (West

      Supp. 2014), Binion committed two Level 6 felonies. And while the court

      imposed a term of two and one-half years for each of Binion’s offenses, it

      ordered those terms to be served concurrently. Thus, Binion received half of

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      the sentence he could have received, and his only argument on appeal is

      without merit.


[8]   In any event, Binion’s sentence is not inappropriate in light of the nature of the

      offenses or his character. As the trial court stated, Binion turned a run-of-the-

      mill shoplifting into a high-speed chase that “endangered everybody that was

      on the road, including the police . . . .” Tr. at 254. And, as thoroughly detailed

      by the trial court, Binion has a lengthy criminal history that demonstrates his

      poor character. As such, we cannot say that his sentence is inappropriate under

      Indiana Appellate Rule 7(B).


[9]   Affirmed.


      Kirsch, J., and Barnes, J., concur.




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