Pursuant to Ind.Appellate Rule 65(D), 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:

DONALD C. SWANSON, JR.                             GREGORY F. ZOELLER
Fort Wayne, Indiana                                Attorney General of Indiana

                                                   KATHERINE MODESITT COOPER
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana

                                                                                 FILED
                               IN THE                                        Jan 17 2012, 9:39 am

                     COURT OF APPEALS OF INDIANA                                     CLERK
                                                                                   of the supreme court,
                                                                                   court of appeals and
                                                                                          tax court




REBECCA HERB,                                      )
                                                   )
       Appellant,                                  )
                                                   )
               vs.                                 )       No. 02A03-1106-CR-251
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee.                                   )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Wendy W. Davis, Judge
                              Cause No. 02D06-1101-FD-71


                                        January 17, 2012

                MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       Rebecca Herb (“Herb”) pleaded guilty in Allen Superior Court to four Class D

felony offenses and was ordered to serve an aggregate two-year sentence with six months

suspended to probation. Herb appeals and argues that her sentence is inappropriate in

light of the nature of the offense and the character of the offender.

       We affirm.

                              Facts and Procedural History

       On January 11, 2011, Herb attempted to purchase two beers at the Bootleggers Bar

and Tavern with a stolen credit card belonging to Gary Miller. After Herb’s friend told

the bartender that she was using a stolen credit card, Herb left the bar and drove away in

a stolen vehicle. The vehicle had been reported stolen by its owner, Jennifer McGinnis,

in July 2010.

       Fort Wayne Police Officers apprehended Herb and she was arrested.             Herb

admitted to stealing Gary Miller’s credit card and that she also had stolen his wife’s

credit card. She used the latter card to obtain $800 in cash from an ATM in Mississippi.

Herb also confessed that she knew she was driving a stolen vehicle. Police officers also

discovered in Herb’s possession a stolen wallet belonging to Joan Anderson. Herb

admitted that she stole Anderson’s wallet while she was cleaning Anderson’s home.

       On January 13, 2011, Herb was charged with Class D felony fraud, two counts of

Class D felony receiving stolen property, and Class D felony receiving stolen auto parts.

Shortly thereafter, Herb pleaded guilty as charged, and a sentencing hearing was held on

May 10, 2011. The trial court ordered Herb to serve concurrent terms of two years, with

six months suspended to probation, for each Class D felony conviction. Herb was also

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given credit for 121 days of jail time. Herb now appeals. Additional facts will be

provided as necessary.

                                 Discussion and Decision

       Herb argues that her aggregate two-year sentence, with six months suspended to

probation, is inappropriate in light of the nature of the offense and the character of the

offender. Although a trial court may have acted within its lawful discretion in imposing a

sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent

appellate review and revision of sentences through Indiana 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) (citing Anglemyer v. State, 868 N.E.2d 482,

491 (Ind. 2007)). The defendant has the burden of persuading us that his sentence is

inappropriate. Id. (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)). Finally,

although we have the power to review and revise sentences, “[t]he principal role of

appellate review should be to attempt to leaven the outliers, and identify some guiding

principles for trial courts and those charged with improvement of the sentencing statutes,

but not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895

N.E.2d 1219, 1225 (Ind. 2008).

       In this case, Herb was ordered to serve concurrent two-year sentences, with six

months suspended to probation, for her four Class D felony convictions. A person

convicted of a Class D felony “shall be imprisoned for a fixed term of between six (6)

                                             3
months and three (3) years, with the advisory sentence being one and one-half (1½)

years.” Ind. Code § 35-50-2-7.

       Concerning the nature of the offense, we observe that four victims were harmed by

Herb’s four Class D felony offenses. But other than multiple victims, there are no facts

surrounding the nature of the offenses that would support a sentence above the one and

one-half year advisory sentence for a Class D felony.

       But Herb’s character supports the sentence imposed. Herb’s decision to plead

guilty, while reflecting well on her character, was also a pragmatic decision because she

admitted to committing all four offenses when she was arrested. Moreover, in imposing

its sentence, the trial court considered Herb’s struggles with alcohol abuse and depression.

       Herb has not led a law abiding life. She has been convicted of multiple

misdemeanors in multiple jurisdictions, including four misdemeanor larceny convictions

and a misdemeanor forgery conviction in New York and larceny and uttering

misdemeanor convictions in Mississippi. Herb also pleaded guilty to felony possession

of a controlled substance in Mississippi, but the court withheld adjudication and placed

Herb on probation for five years. An arrest warrant has been issued for Herb in that

cause because she failed to abide by the terms of her probation. Herb also has several

misdemeanor charges pending against her in the state of New York and a warrant has

been issued for her arrest because she failed to appear for a scheduled court hearing there.

For all of these reasons, we conclude that Herb’s aggregate two-year sentence is not

inappropriate.



                                             4
                                        Conclusion

       Herb’s two-year aggregate sentence, with six months suspended to probation, is

not inappropriate in light of the nature of the offense and the character of the offender.

       Affirmed.

FRIEDLANDER, J., and RILEY, J., concur.




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