MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Dec 02 2019, 8:09 am

court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Christopher Kunz                                        Curtis T. Hill, Jr.
Marion County Public Defender                           Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                   Marjorie Lawyer-Smith
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Ira Lee Brown III,                                      December 2, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1232
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Shatrese M.
Appellee-Plaintiff.                                     Flowers, Judge
                                                        Trial Court Cause No.
                                                        49G02-1801-F3-3806



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1232 | December 2, 2019                   Page 1 of 7
                                         Statement of the Case
[1]   Ira Lee Brown III appeals his sentence following his convictions for unlawful

      possession of a firearm by a serious violent felon, as a Level 4 felony, and

      attempted battery, as a level 5 felony. Brown raises one issue for our review,

      namely, whether his sentence is inappropriate in light of the nature of the

      offenses and his character.


[2]   We affirm.


                                   Facts and Procedural History
[3]   On January 28, 2018, Brown and an associate, Marvin Allen, went to Geoffrey

      Lacava’s home to sell him synthetic marijuana. After Brown had sold Lacava

      the drugs, Brown and Allen left. Approximately ten to fifteen minutes later, the

      two individuals returned to Lacava’s house. Sometime thereafter, Brown and

      Allen left again, and Lacava followed them to the door. 1 When Brown and

      Allen left Lacava’s house for the second time, Brown was holding a firearm,

      and he fired several shots in Lacava’s direction. Brown did not hit Lacava, but

      he hit the front door to Lacava’s house and a window.


[4]   Among other offenses, the State charged Brown with one count of attempted

      battery, as a Level 5 felony (Count 3); one count of carrying a handgun without




      1
        It is not clear from the record what occurred while Brown and Allen were inside of Lacava’s residence for
      the second time.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1232 | December 2, 2019                 Page 2 of 7
      a license, as a Level 5 felony (Count 4); and one count of unlawful possession

      of a firearm by a serious violent felon, as a Level 4 felony (Count 5). 2 The trial

      court held a bifurcated jury trial. At the conclusion of the first phase of the trial,

      the jury found Brown guilty of Counts 3 and 4. Prior to the start of the second

      phase of the trial, Brown pleaded guilty to Count 5. Due to double jeopardy

      concerns, the trial court only entered judgment of conviction against Brown for

      Count 3 and Count 5.


[5]   Thereafter, the trial court held a sentencing hearing. At the hearing, the court

      identified as mitigating factors the fact that Brown had pleaded guilty to Count

      5 and Brown’s history of mental health issues. The court then identified

      aggravating factors. Specifically, the court identified Brown’s juvenile criminal

      history, which includes six juvenile adjudications, and Brown’s adult criminal

      history, which includes one felony conviction and three misdemeanor

      convictions. 3 The court also identified as aggravators the nature and

      circumstances of the offense, namely that Brown had fired shots in the direction

      of an unarmed individual, and Brown’s IRAS score, which indicated that

      Brown is in the very high risk category to reoffend. The trial court then found

      that the aggravators outweighed the mitigators. Accordingly, the court




      2
        The State additionally charged Brown with one count of armed robbery, as a Level 3 felony, and one count
      of kidnapping, as a Level 3 felony, based on Lacava’s allegations of events that had occurred while Brown
      and Allen were in his home. However, the jury found Brown not guilty of those offenses.
      3
        The court noted that it was not able to use Brown’s prior felony conviction as an aggravator to enhance his
      sentence for Count 5 but that it could consider that conviction to enhance his sentence for Count 3.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1232 | December 2, 2019                  Page 3 of 7
      sentenced Brown to consecutive sentences of six years executed in the

      Department of Correction on Count 3 and to eight years, with six years in the

      Marion County Community Corrections program and two years suspended to

      probation on Count 5, for an aggregate sentence of fourteen years, with twelve

      years executed and two years suspended to probation. This appeal ensued.


                                     Discussion and Decision
[6]   Brown contends that his sentence is inappropriate in light of the nature of the

      offenses and his character. Indiana Appellate Rule 7(B) provides that “[t]he

      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.” This court

      has recently held that “[t]he advisory sentence is the starting point the

      legislature has selected as an appropriate sentence for the crime committed.”

      Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana

      Supreme Court has recently explained that:


              The principal role of appellate review should be to attempt to
              leaven the outliers . . . but not achieve a perceived “correct”
              result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
              2008). Defendant has the burden to persuade us that the
              sentence imposed by the trial court is inappropriate. Anglemyer v.
              State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007),
              decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).


      Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1232 | December 2, 2019   Page 4 of 7
[7]   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, 895 N.E.2d at 1222. 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.

      The question is not whether another sentence is more appropriate, but rather

      whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

      268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] 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).

      Further, it is well settled that “our review of the sentence should focus on the

      forest—the aggregate sentence—rather than the trees—consecutive or

      concurrent, number of counts, or length of sentences on any individual count.”

      Gleason v. State, 965 N.E.2d 702, 712 (Ind. Ct. App. 2012).


[8]   The sentencing range for a Level 4 felony is two years to twelve years, with an

      advisory sentence of six years. See Ind. Code § 35-50-2-5.5 (2019). And the

      sentencing range for a Level 5 felony is one year to five years, with an advisory

      sentence of three years. See I.C. § 35-50-2-6(b). Here, the trial court identified

      as aggravating factors Brown’s criminal history, the nature and circumstances

      of the offenses, and his IRAS score. And the court identified as mitigating


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1232 | December 2, 2019   Page 5 of 7
       factors the fact that Brown had pleaded guilty to Count 5 and his history of

       mental health issues. The court found that the aggravators outweighed the

       mitigators and sentenced Brown to eight years, with six years in the Marion

       County Community Corrections program and two years suspended to

       probation for the Level 4 felony offense, which the court ordered to run

       consecutive to Brown’s sentence of six years executed in the Department of

       Correction for the Level 5 felony offense, for an aggregate sentence of twelve

       years executed and two years suspended to probation.


[9]    On appeal, Brown contends that it was inappropriate for the trial court to order

       his sentences to run consecutively instead of concurrently. Brown maintains

       that his aggregate sentence is inappropriate in light of the nature of the offenses

       because the offenses were not “planned or premeditated,” because the offenses

       were “far from the most egregious crime of the same type,” and because

       “Lacava did not testify to any lasting mental distress as a result.” Appellant’s

       Br. at 12, 13. And Brown contends that his sentence is inappropriate in light of

       his character because “the entirety of his juvenile history occurred at least ten

       years prior to this offense,” he “was struggling with numerous behavioral

       disorders,” he voluntarily pleaded guilty to Count 5, and he was gainfully

       employed for three months. Id. at 14.


[10]   However, Brown has not met his burden on appeal to demonstrate that his

       sentence is inappropriate. With respect to the nature of the offenses, Brown

       illegally possessed a firearm despite the fact that he knew he was not allowed to

       possess it. Further, as the trial court found, Brown used that gun to “fire[] shots

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1232 | December 2, 2019   Page 6 of 7
       directly at [Brown], and directly at the house[.]” Tr. Vol. III at 13. Further,

       Brown “did not have any type of weapon in his hand.” Id. at 12. In essence,

       Brown illegally possessed a firearm and used that firearm to fire shots in the

       direction of an unarmed man. And Brown committed those offenses shortly

       after he had sold illegal drugs. Accordingly, Brown has not presented

       compelling evidence portraying the nature of the offenses in a positive light. See

       Stephenson, 29 N.E.3d at 122.


[11]   As to his character, Brown has a lengthy criminal history that includes six

       juvenile adjudications, one felony conviction, and three misdemeanor

       convictions. Further, Brown has had his probation revoked in the past. And,

       while in jail, Brown has violated jail rules on numerous occasions. Moreover,

       Brown indicated that he did not “feel anything” about having fired a weapon in

       Lacava’s direction, who Brown knew to be unarmed, which reflects poorly on

       his character. Appellant’s App. Vol. II at 168. We cannot say that Brown’s

       sentence is inappropriate in light of his character.


[12]   We therefore affirm his aggregate sentence of six years executed in the

       Department of Correction followed by six years in the Marion County

       Community Corrections program and two years suspended to probation.


[13]   Affirmed.


       Vaidik, C.J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1232 | December 2, 2019   Page 7 of 7
