MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                            Nov 25 2015, 8:12 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
Luisa M. White                                          Gregory F. Zoeller
Kokomo, Indiana                                         Attorney General of Indiana

                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Austin M. Ferguson,                                     November 25, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        34A02-1506-CR-589
        v.                                              Appeal from the Howard Superior
                                                        Court
State of Indiana,                                       The Honorable George A.
Appellee-Plaintiff                                      Hopkins, Judge
                                                        Trial Court Cause Nos.
                                                        34D04-1404-FC-59
                                                        34D04-1405-FB-70



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1506-CR-589 | November 25, 2015       Page 1 of 8
                                              Case Summary
[1]   Austin M. Ferguson (“Ferguson”) pleaded guilty to Receiving Stolen Property,

      as a Class D felony;1 Burglary, as a Class C felony;2 Aiding, Inducing or

      Causing Burglary, as a Class B felony;3 and Aiding, Inducing or Causing

      Burglary, as a Class C felony.4 Pursuant to the plea agreement, he was

      sentenced to a specific term of years on each count. The agreement also left to

      the trial court’s discretion the limited issue of where the executed portion of

      Ferguson’s sentence on one of the convictions would be served. On appeal, he

      presents the sole issue of whether the trial court’s sentencing order was

      inappropriate. We affirm.



                                Facts and Procedural History
[2]   On April 11, 2014, Ferguson and twin his brother, Andrew, drove to Doc’s

      Detail Shop in Kokomo, where Andrew broke in through a window and let

      Ferguson in through a door. Ferguson took a digital camera and some change.

      Andrew also broke into a neighboring building that housed a separate business,

      Doc’s Pool Shed, while Ferguson waited outside. On April 10, 2014, Ferguson




      1
       Ind. Code § 35-43-4-2(b). Throughout this opinion, we refer to the versions of the Indiana statutes in effect
      at the time of Ferguson’s offenses.
      2
          I.C. § 35-43-2-1.
      3
          I.C. §§ 35-43-2-1(1) & 35-41-2-4.
      4
          I.C. §§ 35-43-2-1 & 35-41-2-4.


      Court of Appeals of Indiana | Memorandum Decision 34A02-1506-CR-589 | November 25, 2015             Page 2 of 8
      and Andrew drove to Clayton Fisher’s apartment in Kokomo, where Ferguson

      boosted Andrew up to the apartment’s balcony. Andrew broke the glass

      balcony door, entered the apartment, and let Ferguson in through the front

      door. The brothers took two guns and a plasma TV. On December 3, 2013, the

      twins drove to the home of R. Wesley Miller (“Miller”), also in Kokomo.

      Ferguson stayed outside while Andrew broke a window, entered the home, and

      stole three guns and two safes containing jewelry, documents, and a total of

      $10,500. On April 2, 2014, Ferguson and Andrew drove to Mac’s Market in

      Kokomo, where Ferguson acted as a lookout while Andrew entered the

      building through a drive-through window and stole several lottery tickets.


[3]   For his role in burglarizing Doc’s Detail Shop and Doc’s Pool Shed, Ferguson

      was charged in trial court cause number 34D04-1404-FC-59 (“FC-59”) with two

      counts of Burglary, as Class C felonies; Receiving Stolen Property, as a Class D

      felony (“Count 3”); and Conspiracy to Commit Burglary, as a Class C felony.

      For his role in the Fisher, Miller, and Mac’s Market burglaries, Ferguson was

      charged under trial court cause number 34D04-1405-FB-70 (“FB-70”) with

      Burglary, as a Class B felony (“Count 1”); two counts of Conspiracy to Commit

      Burglary, as Class B felonies; two counts of Receiving Stolen Property, as Class

      D felonies; Aiding, Inducing or Causing Burglary, as a Class B felony (“Count

      5”); Aiding, Inducing or Causing Burglary, as a Class C felony (“Count 7”);

      and Conspiracy to Commit Burglary, as a Class C felony.


[4]   Cause numbers FC-59, FB-70, and a third case (cause number 34D04-1412-F5-

      161) were disposed of in a single plea agreement filed March 13, 2015. In FC-

      Court of Appeals of Indiana | Memorandum Decision 34A02-1506-CR-589 | November 25, 2015   Page 3 of 8
      59, Ferguson agreed to plead guilty to Count 3 and to serve a term of eighteen

      months in the Indiana Department of Correction (“DOC”). In FB-70,

      Ferguson agreed to plead guilty to Count 1 (as a Class C felony), Count 5, and

      Count 7. On Counts 1 and 7, he agreed to serve for each offense a sentence of

      four years executed in the DOC. On Count 5, he agreed to serve a ten-year

      sentence, with eight years executed and two years of supervised probation. The

      agreement also provided that “[t]he parties may present evidence and argument

      regarding how the executed portion of the sentence [on Count 5] shall be served

      including but not limited to Community Corrections In-Home Detention.”

      (App. 42.) The sentences in FB-70 were to run concurrently, but consecutively

      to the sentence in FC-59. In exchange, the State agreed to dismiss all remaining

      counts in the three cases. Restitution was to be determined by the trial court.


[5]   On May 8, 2015, the trial court accepted the agreement and entered judgment

      of conviction. The court also heard evidence and argument on where

      Ferguson’s executed sentence on Count 5 should be served. Ferguson

      requested that at least some portion of his sentence be served on home

      detention so that he could obtain employment and pay restitution, which he

      would not be able to do while incarcerated. At the conclusion of the hearing,

      the court sentenced Ferguson according to the agreement’s terms and ordered

      that all eight years executed in Count 5 be served in the DOC. The court also

      ordered that Ferguson pay his pro rata share of $13,535.70 ($6,767.85) in

      restitution to Miller.


[6]   In this consolidated appeal, Ferguson appeals the trial court’s sentencing order.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1506-CR-589 | November 25, 2015   Page 4 of 8
                                Discussion and Decision
[7]   Article 7, Section 6 of the Indiana Constitution grants this Court authority to

      independently review and revise a sentence imposed by the trial court. To

      implement this grant of authority, Indiana Appellate Rule 7(B) provides: “The

      Court 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.” Ind.

      Appellate Rule 7(B). The analysis is not whether another sentence is more

      appropriate, but whether the sentence imposed is inappropriate. Conley v. State,

      972 N.E.2d 864, 876 (Ind. 2012). The defendant bears the burden of

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


[8]   On appeal, Ferguson contends that factors such as the non-violent nature of his

      offenses, his limited criminal history, his ongoing drug addiction problems, and

      his young age are mitigating and thus should reduce his sentence. He argues

      that “[i]f the [trial] court had correctly taken into consideration [his] character,

      the fact that he pled guilty, the nature of the crime and the necessity to pay

      restitution as soon as possible, the court would have imposed a more lenient

      sentence and would have allowed [him] to serve on Home-Detention.”

      (Appellant’s Br. 4.) He therefore “requests re-sentencing” (Appellant’s Br. 4)

      and asks that this Court “reverse and remand the sentencing of the trial court

      with instructions to reconsider [his] 16 year sentence and take into

      consideration the mitigating factors presented in this appeal.” (Appellant’s Br.



      Court of Appeals of Indiana | Memorandum Decision 34A02-1506-CR-589 | November 25, 2015   Page 5 of 8
       8.)5 He thus seems to argue that both his overall sentence and his placement in

       the DOC were inappropriate.


[9]    If the trial court accepts the parties’ agreement to a plea calling for a specific

       term of years, the court has no discretion to impose anything other than the

       precise sentence upon which they agreed. Childress v. State, 848 N.E.2d 1073,

       1078-79 n.4 (citing Badger v. State, 637 N.E.2d 800, 802 (Ind.1994) (“[I]f the

       court accepts the agreement, it becomes bound by the terms of the

       agreement.”); Blackburn v. State, 493 N.E.2d 437, 439 (Ind.1986) (“Although not

       a party to the agreement, once the court accepts a plea agreement, it is bound

       by the terms of that agreement.”)). Only if the trial court exercises discretion in

       imposing a sentence may a convicted person contest on appeal the merits of

       that discretion on the grounds that the sentence is inappropriate. Hole v. State,

       851 N.E.2d 302, 304 (Ind. 2006) (citing Childress, 848 N.E.2d at 1078-80).


[10]   Here, the trial court sentenced Ferguson to the fixed terms stated in the plea

       agreement. Because Ferguson received the precise length of sentence for which

       he bargained, the length of his sentence is not available for Rule 7(B) review.

       See id. To the extent he argues that this Court should reduce his sentence, we

       have no authority to do so.


[11]   However, the plea agreement did leave to the trial court’s discretion the limited

       issue of where Ferguson would serve the executed portion of his sentence on



       5
           We note that Ferguson received an aggregate sentence of eleven-and-a-half years, not sixteen.


       Court of Appeals of Indiana | Memorandum Decision 34A02-1506-CR-589 | November 25, 2015             Page 6 of 8
       Count 5 in FB-70. The place where a convicted person’s sentence is to be

       served is an appropriate focus for application of our review and revise authority.

       Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007) (citing Hole, 851 N.E.2d at

       304 n.4); King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Nevertheless,

       it is quite difficult for a defendant to prevail on a claim that the placement of his

       sentence is inappropriate. King, 894 N.E.2d at 267 (citing Fonner v. State, 876

       N.E.2d 340, 343 (Ind. Ct. App. 2007)). “A defendant challenging the

       placement of a sentence must convince us that the given placement is itself

       inappropriate.” Id. at 268. And as a practical matter, trial courts better know

       the feasibility of alternative placements in particular counties or communities.

       Id.


[12]   Ferguson argues generally that factors such as his guilty plea, limited criminal

       history, ongoing addiction problems, young age, and the non-violent nature of

       his offenses militate toward a more lenient sentence. The only argument

       Ferguson advances bearing directly on the appropriateness of the location of his

       sentence is that if he were placed on home detention rather than serving time in

       the DOC, “he could work toward paying the restitution.” (Appellant’s Br. 6.)

       By simply arguing that placement on home detention would be more

       appropriate, Ferguson has failed to show that his placement in the DOC is

       inappropriate. While the court-ordered time in the DOC will likely delay his

       victim’s receipt of restitution, Ferguson does not argue that the additional DOC

       time will prevent him from making restitution entirely.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1506-CR-589 | November 25, 2015   Page 7 of 8
[13]   Furthermore, while Ferguson’s prior criminal history is minimal, he has

       previously been sentenced to alternative placements without success. As a

       juvenile, he was adjudicated a delinquent for conduct that constituted Resisting

       Law Enforcement, as a Class A misdemeanor, if committed by an adult. He

       was placed on supervised probation, but violated his probation and was placed

       in secure detention. As an adult, he was charged with Possession of Marijuana,

       as a Class A misdemeanor. His participation in a pretrial diversion program

       was terminated, however, after the charges in this case were filed. In light of

       these past unsuccessful alternative placements, the trial court’s order that

       Ferguson serve his executed time in the DOC, rather than on home detention,

       was not inappropriate.


[14]   Affirmed.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1506-CR-589 | November 25, 2015   Page 8 of 8
