MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                       Jan 29 2018, 9:52 am
regarded as precedent or cited before any
                                                                                CLERK
court except for the purpose of establishing                                Indiana Supreme Court
                                                                               Court of Appeals
the defense of res judicata, collateral                                          and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kristin A. Mulholland                                    Curtis T. Hill, Jr.
Crown Point, Indiana                                     Attorney General of Indiana

                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Richard Devon Smith,                                     January 29, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1709-CR-2016
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Samuel L. Cappas,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         45G04-1601-F3-2
                                                         45G04-1608-F6-179



May, Judge.

Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2016 | January 29, 2018             Page 1 of 7
[1]   Richard Devon Smith appeals as inappropriate the sentences imposed following

      his convictions of Level 3 felony armed robbery 1 and Level 6 felony battery. 2

      Finding nothing inappropriate about the ten and a half years he was ordered to

      serve for those two crimes, 3 we affirm.



                                Facts and Procedural History
[2]   On the evening of January 11, 2016, Smith entered a liquor store, pointed a

      handgun at the store clerk, and demanded all the money from the cash register.

      The clerk filled a plastic bag with the money from the register. Smith then

      demanded the clerk put her cell phone in the bag. The clerk complied. Smith

      took the bag and backed out of the liquor store while continuing to point his

      handgun at the clerk. Police arrested Smith, and the State charged him with

      Level 3 felony armed robbery under cause number 45G04-1601-F3-002.


[3]   While in Lake County Jail awaiting trial on that charge, Smith punched

      Correction Officer Y. Darwish in the face. Officer Darwish and another officer

      attempted to restrain Smith, but Smith threw a blanket over Officer Darwish’s

      head and again punched him in the face. The video of the incident revealed no




      1
          Ind. Code § 35-42-5-1(1).
      2
          Ind. Code § 35-42-2-1(e)(2).
      3
        During the sentencing hearing, the trial court twice found Smith in contempt of court for using foul
      language and interrupting the court. Smith does not challenge his contempt sentences, which were ordered
      served consecutive to the sentences for robbery and battery. As Smith does not challenge the contempt
      findings or sentences, we restrict our discussion to the facts relevant to the other two sentences.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2016 | January 29, 2018        Page 2 of 7
      provocation by Officer Darwish for Smith’s attack, and during the altercation,

      Smith was yelling threats against numerous officers. For these actions, under

      cause number 45G04-1608-F6-179, the State charged Smith with two counts of

      Level 6 felony battery and two counts of Level 6 felony intimidation. 4


[4]   During 2016, the State also filed two other unrelated causes of action against

      Smith. Under cause number 45G04-1602-F3-005, the State charged Smith with

      Level 3 felony armed robbery and Level 3 felony criminal confinement. 5 Under

      cause number 45G04-1610-F6-219, the State charged Smith with two counts of

      Level 6 felony intimidation and one count of Class A misdemeanor resisting

      law enforcement. 6


[5]   In June 2017, Smith and the State reached an agreement by which all four of

      his pending causes of action would be disposed. Smith agreed to plead guilty to

      armed robbery of the liquor store and battery of Officer Darwish. The State

      agreed to dismiss all remaining pending charges, which included seven felonies

      and one misdemeanor. The agreement provided the sentences for the two

      convictions would be served consecutively, but it capped the possible sentence

      for Level 3 felony armed robbery at nine years and for Level 6 felony battery at

      eighteen months.




      4
          Ind. Code § 35-45-2-1(a)(2)(B)(i).
      5
          Ind. Code § 35-42-3-3.
      6
          Ind. Code § 35-44.1-3-1.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2016 | January 29, 2018   Page 3 of 7
[6]   The court held a sentencing hearing and then ordered Smith to serve nine years

      for armed robbery consecutive to eighteen months for battery. In the process of

      reaching its decision, the court made the following findings:


              Aggravating Circumstances:


              1.       The defendant has had six (6) juvenile contacts with the
                       criminal justice system, resulting in five (5) juvenile
                       adjudications;


              2.       The defendant has had eight (8) adult contacts with the
                       criminal justice system, resulting in two (2) felony
                       convictions and one (1) misdemeanor conviction;


              3.       These multiple contacts with the criminal justice system
                       demonstrate that the defendant is unable to conform his
                       behavior to the norms of society;


              4.       The defendant is in need of rehabilitation that can only be
                       provided by a penal facility, the reasons for which are
                       stated in Number 3 above.


              Mitigating Circumstances:


              1.       The defendant is twenty-three (23) years of age;


              2.       The defendant admitted his guilt by way of a plea
                       agreement, thus saving the Court and the tax payers of this
                       county the time and expense of a trial.


              The Court finds that the aggravating factors outweigh the
              mitigating factors.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2016 | January 29, 2018   Page 4 of 7
      (App. Vol. 2 at 26-7.)



                                 Discussion and Decision
[7]   Smith asserts his sentence is inappropriate. We may revise a sentence if it is

      inappropriate in light of the nature of the offense and the character of the

      offender. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008) (citing

      Ind. Appellate Rule 7(B)). We consider the aggravators and mitigators found

      by the trial court and also any other factors appearing in the record. Baumholser

      v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016), trans. denied. The appellant

      must demonstrate his sentence is inappropriate. Id. at 418.


[8]   When considering the nature of the offense, the advisory sentence is the starting

      point to determine the appropriateness of a sentence. Anglemyer v. State, 868

      N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The

      sentencing range for a Level 3 felony is “a fixed term of between three (3) and

      sixteen (16) years, with the advisory sentence being nine (9) years.” Ind. Code

      § 35-50-2-5. The sentencing range for a Level 6 felony is “a fixed term of

      between six (6) months and two and one-half (2 ½) years, with the advisory

      sentence being one (1) year.” Ind. Code § 35-50-2-7(b).


[9]   The court sentenced Smith to nine years for armed robbery, which was the cap

      provided by the plea agreement but is also the advisory sentence for a Level 3

      felony. Smith’s sentence for battery of a law enforcement officer is eighteen

      months, which was the cap provided by the plea agreement and is less than


      Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2016 | January 29, 2018   Page 5 of 7
       mid-way between the advisory and maximum sentences for Level 6 felony

       battery. Those sentences do not seem inappropriate in light of the crimes Smith

       committed. When robbing the liquor store clerk, Smith did not just display his

       gun, he kept it pointed at her the entire time, and the experience caused the

       clerk to have nightmares and difficulty going to work. The record suggests

       Smith’s battery of Officer Darwish was unprovoked and Smith continued

       beating Officer Darwish despite other officers’ attempts to intervene.


[10]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.

       App. 2007). The significance of a criminal history in assessing a defendant’s

       character varies based on the gravity, nature, and number of prior offenses in

       relation to the current offense. Id. When sentencing Smith, the trial court

       noted his juvenile and adult history of criminal behavior.


[11]   Smith’s first involvement with the juvenile justice system occurred when Smith

       was thirteen. His first adjudication as a delinquent came at age fourteen, when

       he was disorderly and battered a police officer. Before being released from the

       disposition for that adjudication, Smith was adjudicated a delinquent for

       committing criminal recklessness and criminal mischief. For those acts he

       served time in the Lake County Juvenile Center and the Illinois Department of

       Correction. He also spent time in the Lake County Juvenile Center for false

       informing. As an adult, in addition to the four causes of action that were

       disposed by the plea agreement herein, Smith has convictions of resisting law



       Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2016 | January 29, 2018   Page 6 of 7
       enforcement in Lake County and battering a law enforcement officer with

       bodily waste in Madison County.


[12]   Despite having served a number of sentences for battering a law enforcement

       officer, Smith was convicted herein of once again battering a correctional

       officer. This repetition of behavior suggests Smith’s behavior is not being

       modified by prior shorter terms of incarceration. Accordingly, we cannot find

       inappropriate the slightly-above-advisory consecutive sentence he received

       herein. See, e.g., Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007)

       (advisory sentence not inappropriate when defendant’s criminal history

       contains multiple convictions for similar offenses).



                                               Conclusion
[13]   In light of Smith’s character and the nature of his crimes, we see nothing

       inappropriate about a ten-and-a-half-year sentence for the convictions herein.

       We accordingly affirm.


[14]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2016 | January 29, 2018   Page 7 of 7
