      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                          Jul 17 2015, 8:28 am
      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
      Amanda O. Blackketter                                     Gregory F. Zoeller
      Blackketter Law, LLC                                      Attorney General of Indiana
      Shelbyville, Indiana
                                                                Richard C. Webster
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Thomas Daniel Sayre,                                      July 17, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                73A01-1411-CR-482
              v.
                                                                Appeal from the Shelby Superior
      State of Indiana,                                         Court
                                                                The Honorable Jack A. Tandy,
      Appellee-Plaintiff,                                       Judge
                                                                Cause No. 73D01-1403-FC-32




      Robb, Judge.



                                 Case Summary and Issue
[1]   Thomas Sayre entered a plea of guilty to robbery, a Class C felony, and was

      sentenced to seven years executed at the Indiana Department of Correction

      Court of Appeals of Indiana | Memorandum Decision 73A01-1411-CR-482 | July 17, 2015         Page 1 of 6
      (“DOC”). Sayre appeals, raising the sole issue of whether his sentence, and in

      particular his placement in DOC, is inappropriate in light of the nature of his

      offense and of his character. Concluding his sentence is not inappropriate, we

      affirm.



                            Facts and Procedural History
[2]   On March 14, 2014, Sayre offered to sell five pounds of marijuana for $5,000 to

      James Jones, who was an undercover detective. Sayre arranged to meet

      Detective Jones at a gas station in Shelbyville, Indiana, and told Jones he

      would be in a blue Honda. Sayre’s brother drove Sayre to the gas station where

      Sayre spoke with Devon Jones, his cousin, who was there in another vehicle.

      When Detective Jones arrived, Sayre walked to Detective Jones’s vehicle, and

      Detective Jones handed him an envelope containing the money. Sayre returned

      to his vehicle and acted as though he was going to reach inside to get the drugs.

      Instead, he jumped into the passenger seat and his brother drove away at a high

      rate of speed. Devon Jones followed in his vehicle to act as a blockade. Sayre

      and his brother initially got away and took the money to a nearby casino.

      Police located them later that day, and Sayre admitted his involvement in the

      incident, claiming responsibility for the setup and stating he had basically

      bribed his brother and cousin to participate.


[3]   The State charged Sayre with conspiracy to commit robbery, a Class C felony;

      robbery, a Class C felony; theft, a Class D felony; conspiracy to commit theft, a

      Class D felony; money laundering, a Class D felony; and alleged he was an

      Court of Appeals of Indiana | Memorandum Decision 73A01-1411-CR-482 | July 17, 2015   Page 2 of 6
      habitual offender. Sayre eventually entered into a plea agreement whereby he

      entered a plea of guilty to robbery, a Class C felony; the State dismissed the

      remaining charges and the habitual offender allegation; and the sentence was to

      be determined by the trial court. At the sentencing hearing, Sayre

      acknowledged his drug addiction and asked the trial court to consider placing

      him in a Purposeful Incarceration program1 to address his drug issues: “I’m not

      necessarily asking for less time, I, I guess what I’m asking for is, I don’t want

      out of, out of my charges, you know. But I really [sic] asking is, seeking for is

      drug treatment, because that’s what, that’s what always brings me down.”

      Transcript at 38-39.


[4]   The trial court accepted the plea and found Sayre guilty of robbery as a Class C

      felony. With respect to sentencing, the trial court stated:

                 In terms of reviewing your situation I’ll find three aggravating
                 circumstances, the first being your criminal history . . . . Probation
                 counted seven prior felony convictions and nine prior misdemeanor
                 convictions, so you certainly have a significant criminal history
                 especially in light of your age.[2] The second aggravator I’ll find is that
                 you have, we’ve tried lesser restrictive type sentencing, including
                 probation in the past, and those have not been successful because you
                 violated those various programs. The third . . . aggravator I’ll find is
                 that . . . the unique circumstances of the crime pose a danger to several



      1
        Purposeful Incarceration is described on the DOC website as a cooperative project between DOC and
      Indiana courts where the DOC “works in collaboration with Judges who can sentence chemically addicted
      offenders and document that they will ‘consider a sentence modification’ should the offender successfully
      complete [a] . . . Therapeutic community.” Therapeutic communities “provide intensive substance abuse
      treatment . . . that hold the offenders highly accountable.” Purposeful Incarceration,
      http://www.in.gov/idoc/2798.htm (last visited July 15, 2015).
      2
          Sayre testified that he would “[b]e twenty six.” Tr. at 36.


      Court of Appeals of Indiana | Memorandum Decision 73A01-1411-CR-482 | July 17, 2015             Page 3 of 6
              people . . . people driving by there, the innocent people as well as the
              police officers, beyond what is normally present in a robbery situation .
              . . . On the mitigating side of things I’ll find one mitigator that being
              your, taking responsibility by pleading guilty and I agree with the state
              on this point that that is somewhat lessened by the circumstances and
              the benefit that you received of having the habitual dismissed . . . .
              Sentence you to seven years at the [DOC], to be served on an executed
              basis . . . . Recommend to the [DOC] that you receive substance abuse
              and mental health treatment while you’re within the department.
      Tr. at 42-43. Sayre now appeals his sentence.



                                 Discussion and Decision
                                     I. Standard of Review
[5]   Article VII, Sections 4 and 6 of the Indiana Constitution authorize independent

      appellate review and revision of sentences through Appellate Rule 7(B), which

      provides that a 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.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007). The defendant has

      the burden of persuading us that his sentence is inappropriate. Childress v. State,

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


                                  II. Inappropriate Sentence
[6]   Sayre does not challenge the length of the sentence imposed by the trial court.

      Instead, he challenges the trial court’s order that he serve his sentence in the

      DOC. The place where a sentence is to be served is subject to Rule 7(B) review.

      Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007). However, it is “quite

      Court of Appeals of Indiana | Memorandum Decision 73A01-1411-CR-482 | July 17, 2015   Page 4 of 6
      difficult” for a defendant to prevail on a claim that his placement is

      inappropriate because “the question under Appellate Rule 7(B) is not whether

      another sentence is more appropriate; rather, the question is whether the

      sentence imposed is inappropriate.” Fonner v. State, 876 N.E.2d 340, 343-44

      (Ind. Ct. App. 2007) (emphasis in original).


[7]   Here, the record shows Sayre asked the trial court to identify him as a

      Purposeful Incarceration offender, but the trial court did not do so. Although

      the trial court did not specifically address Sayre’s request and the reasons for

      denying it, it is clear from the trial court’s sentencing statement that Sayre’s

      criminal history, and in particular, his failure to respond to less restrictive

      placements factored into the trial court’s placement decision. Despite not

      ordering Purposeful Incarceration, the trial court did recommend Sayre receive

      substance abuse treatment while incarcerated. Sayre claims that because of

      “the particular circumstances of Sayre’s drug use and addiction, placement in

      the [DOC] will make drug treatment unsuccessful for this particular defendant.”

      Appellant’s Brief at 6.


[8]   We are not convinced that the trial court’s imposition of an executed sentence

      and the provision of substance abuse and mental health treatment in the DOC

      instead of Purposeful Incarceration is inappropriate. The record reveals the

      nature of Sayre’s offense involved bribing his relatives to assist him in

      committing a robbery and imperiling others as they fled from the scene.

      Although there is nothing particularly egregious about this, we conclude that

      Sayre’s character justifies his placement with DOC.

      Court of Appeals of Indiana | Memorandum Decision 73A01-1411-CR-482 | July 17, 2015   Page 5 of 6
[9]    At twenty-six years of age, Sayre has an extensive criminal history as both a

       juvenile and as an adult, including, as particularly relevant to this charge,

       multiple convictions for property offenses. He has violated probation each time

       he has been placed on it, and he committed the instant offense while on parole.

       He has not reformed his behavior as a result of his past incarcerations or in

       response to past leniency. Sayre does have a long-standing and apparently

       serious drug problem. However, on the occasions he has been ordered into

       drug treatment, he has failed to take advantage of it, and he has not

       affirmatively sought treatment on his own before requesting this grace from the

       trial court. Drug treatment of any kind in any place will only be successful for

       Sayre if he is willing to battle and overcome his addiction, and Sayre has not

       shown that the DOC will be unable to offer adequate opportunities to address

       his substance abuse issues.



                                               Conclusion
[10]   After due consideration of the trial court’s decision and our own assessment of

       Sayre’s character, we cannot say that placement in the DOC is inappropriate.


[11]   Affirmed.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 73A01-1411-CR-482 | July 17, 2015   Page 6 of 6
