MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D), this                      Dec 09 2016, 8:53 am
Memorandum Decision shall not be
                                                                      CLERK
regarded as precedent or cited before any                         Indiana Supreme Court
                                                                     Court of Appeals
court except for the purpose of establishing                           and Tax Court

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
Deputy Public Defender                                   Attorney General of Indiana
Fort Wayne, Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gregory T. Clark, II,                                    December 9, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1607-CR-1481
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,
                                                         The Honorable John F. Surbeck,
Appellee-Plaintiff.                                      Jr., Judge

                                                         Trial Court Cause No.
                                                         02D05-1602-F3-8



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1481 | December 9, 2016   Page 1 of 6
[1]   Gregory T. Clark, II appeals his sentence for robbery as a level 3 felony. Clark

      raises one issue which we restate as whether his sentence is inappropriate based

      on the nature of the offense and the character of the offender. We affirm.


                                         Facts and Procedural History

[2]   On January 27, 2016, Clark knowingly and intentionally, while armed with a

      handgun, robbed a gas station in Fort Wayne, Indiana. On February 2, 2016,

      the State charged Clark with: Count I, robbery as a level 3 felony; Count II,

      unlawful possession of a firearm by a serious violent felon as a level 4 felony;

      and Count III, resisting law enforcement as a level 6 felony. On May 20, 2016,

      the court held a guilty plea hearing at which Clark pled guilty to Count I. 1


[3]   On June 13, 2016, the court held a sentencing hearing at which Clark indicated

      he did not have additions or corrections to the presentence investigation report

      (“PSI”). Clark’s counsel requested the court sentence him to the minimum

      executed sentence, noted that he had a revocation pending in Adams County

      for which he would serve four years, and asked the court to consider Clark’s

      drug addiction. The State argued that the aggravating factors include Clark’s

      criminal history and failed efforts at rehabilitation, that he was on probation

      when he committed the present offense, and that he was placed in a high risk to

      reoffend category. Clark stated that he was diagnosed with epilepsy and could




      1
        At the hearing, Clark’s counsel stated that Clark was “pleading straight up to Count I, and then at
      sentencing [the State was] going to dismiss 2 and 3, but it’s not in a plea agreement.” Guilty Plea Transcript
      at 4.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1481 | December 9, 2016             Page 2 of 6
      not operate a forklift any longer and could not provide for himself, that he was

      never brought up to be a thief, that when he committed the crime he was not in

      his right mind and was overwhelmed with life, and that he needs to be there for

      his family. The court found Clark’s criminal history to be an aggravating

      circumstance and noted that it included a prior armed robbery. The court

      stated that it was clear that Clark had numerous opportunities to address his

      addiction and had chosen not to take them and found that his addiction was not

      a mitigating circumstance. It found Clark’s guilty plea to be a mitigating factor,

      and sentenced him to twelve years, ordered him to pay restitution of $485.32,

      and dismissed Counts II and III.


                                                  Discussion

[4]   The issue is whether Clark’s sentence is inappropriate based on the nature of the

      offense and his character. Ind. Appellate Rule 7(B) provides that we “may

      revise a sentence authorized by statute if, after due consideration of the trial

      court’s decision, [we find] that the sentence is inappropriate in light of the

      nature of the offense and the character of the offender.” Under this rule, the

      burden is on the defendant to persuade the appellate court that his or her

      sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

      Relief is available if, after due consideration of the trial court’s sentencing

      decision, this court finds that in its independent judgment, the sentence is

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

      offender. See Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015). Sentencing is

      principally a discretionary function in which the trial court’s judgment should

      Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1481 | December 9, 2016   Page 3 of 6
      receive considerable deference. Id. (citation omitted). Whether we regard a

      sentence as appropriate 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 factors that come to light in a given case. Id. (citation

      omitted).


[5]   Clark contends that, while the criminal conduct was significant, that fact was

      already reflected in the charge of robbery as a level 3 felony and there was no

      need to “double count” the conduct by further aggravating the sentence of an

      elevated charge. Appellant’s Brief at 8. He further argues that, since he was

      sixteen years old, he has been under the influence of an addiction to drugs and

      that the addiction explains his theft and possession charges. He requests that

      his sentence be revised to the minimum executed sentence with whatever

      addiction programs or services the court sees fit to order.


[6]   The State argues that this was Clark’s second conviction for armed robbery and

      that he was on probation for the previous robbery when he committed the

      instant one. It argues that Clark’s criminal career began as a juvenile and

      consists of two prior felony convictions, and that his criminal history shows that

      he learned nothing from his prior contacts with the criminal justice system and

      failed to take advantage of the opportunities that were presented to rehabilitate

      himself and live a productive and meaningful life.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1481 | December 9, 2016   Page 4 of 6
[7]   A person who commits a level 3 felony shall be imprisoned for a fixed term of

      between three and sixteen years, with the advisory sentence being nine years, see

      Ind. Code § 35-50-2-5, and the court sentenced Clark to twelve years.


[8]   With respect to the nature of the offense, the record reveals that in January

      2016 Clark knowingly and intentionally, while armed with a handgun, robbed a

      gas station and took $485.32. With respect to the character of the offender,

      Clark pled guilty to robbery as a level 3 felony and the other counts against him

      of unlawful possession of a firearm by a serious violent felon and resisting law

      enforcement were dismissed. The PSI indicates that, as a juvenile, Clark was

      adjudicated to be delinquent in 2006 for criminal mischief as a class B

      misdemeanor if committed by an adult and leaving home, and in 2007 for

      disorderly conduct as a class B misdemeanor if committed by an adult and

      possession of marijuana as a class A misdemeanor if committed by an adult, for

      which he was placed on probation and ordered to participate in drug/alcohol

      counseling and random urinalysis testing and for which he was unsatisfactorily

      discharged from probation. His criminal history as an adult includes

      convictions for two counts of criminal conversion as class A misdemeanors in

      2010, one for which he was sentenced to unsupervised probation and ordered to

      complete a “Caring About People Theft Intervention Program,” armed robbery

      as a class B felony in Adams County in April 2011 for which he was sentenced

      to fourteen years with four years suspended to probation, and possession of a

      controlled substance as a class D felony and resisting law enforcement as a class

      A misdemeanor in July 2011. Appellant’s Appendix, Volume 2, at 16. The PSI


      Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1481 | December 9, 2016   Page 5 of 6
       further indicates that Clark was released to probation on June 6, 2014, in the

       Adams County case and was on probation in that cause at the time of the

       January 27, 2016 robbery. With respect to substance abuse, the PSI states that

       he reported he first tried alcohol at age seventeen, that he first tried marijuana at

       age eighteen and used every other day until 2010 when he quit, that he first

       tried cocaine in September 2015 and used daily until his present incarceration,

       and that he first used Xanax without a prescription on the day he committed

       the present offense. The PSI further states that Clark’s overall risk assessment

       score using the Indiana risk assessment system places him in the high risk to

       reoffend category.


[9]    After due consideration, we conclude that Clark has not met his burden of

       establishing that his sentence is inappropriate in light of the nature of the

       offense and his character.


                                                   Conclusion

[10]   For the foregoing reasons, we affirm Clark’s sentence for robbery as a level 3

       felony.


       Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1481 | December 9, 2016   Page 6 of 6
