      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                                 FILED
      this Memorandum Decision shall not be                                              Oct 18 2018, 6:49 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
      Brian A. Karle                                           Curtis T. Hill, Jr.
      Lafayette, Indiana                                       Attorney General of Indiana
                                                               Kelly A. Loy
                                                               Supervising Deputy Attorney
                                                               General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Gramm Webster Smith,                                     October 18, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-1105
              v.                                               Appeal from the
                                                               Tippecanoe Superior Court
      State of Indiana,                                        The Honorable Steven P. Meyer
      Appellee-Plaintiff                                       Trial Court Cause No.
                                                               79D02-1801-F5-8



      Kirsch, Judge.


[1]   Following his guilty pleas to Criminal Confinement and Domestic Battery in

      the Presence of a Minor, Gramm Smith was sentenced to five (5) years, with


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1105 | October 18, 2018                    Page 1 of 6
      four (4) years to be served at the Indiana Department of Correction and one (1)

      year on community corrections. Contending that his sentence is inappropriate,

      he now appeals.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On the evening of January 6, 2018, Smith, his girlfriend, T.F., and their two

      children, were visiting a residence when Smith and T.F. began to argue. T.F.

      went to the car to move the child car seats, and Smith pushed her into the rear

      passenger seat and began to drive. T.F. yelled for Smith to let her out, and T.F.

      eventually got out of the car and ran back to the residence. Smith followed her

      into the residence, argued with her, and shoved her down. He then grabbed a

      knife and threatened to kill everyone if anyone called the police.


[4]   When the police arrived, Q.S., Smith’s and T.F’s seven-year-old child, told the

      police that he saw Smith push his mom down, that Smith said he would kill

      everyone in the house, and that he saw Smith retrieve a knife from the kitchen.


[5]   The State charged Smith with Count 1, kidnapping, a Level 5 felony; Count 2,

      criminal confinement, a Level 5 felony; Count 3, intimidation, a Level 5 felony;

      and Count 4, domestic battery in the presence of a minor, a Level 6 felony.

      Smith pleaded guilty to Count 2 and Count 4, pursuant to a written plea

      agreement, and the remaining counts were dismissed.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1105 | October 18, 2018   Page 2 of 6
[6]   The trial court found the following mitigating factors: 1) Smith pled guilty, 2)

      long term imprisonment could result in an undue hardship on Smith’s children,

      3) and Smith’s mental health issues. The trial court found the following

      aggravating circumstances: 1) Smith’s overall character, 2) Smith violated the

      no-contact order over 600 times, 3) Smith’s criminal history, 4) Smith

      committed the instant offense while on probation, 5) Smith’s ongoing gang

      affiliation, and 6) the seriousness of the offense. The trial court found that the

      aggravators outweighed the mitigators and sentenced Smith to an aggregate

      sentence of five years with one year of community service and imposed a no

      contact order.


                                     Discussion and Decision
[7]   On appeal, Smith argues that that his sentence is inappropriate. In support of

      his contention, Smith notes that his sentence is two years above the advisory

      sentence for a Level 5 felony, that a majority of that time was ordered to be

      executed in prison and that his offense is not more egregious than the “typical”

      offense to which he pleaded guilty. He also contends that his offense may have

      been the product of mental illness, for which he is willing to obtain treatment.

      Finally, Smith also states that he pleaded guilty and took responsibility for his

      actions and that, while he has criminal history, none relates to domestic

      violence.


[8]   Indiana Appellate Rule 7(B) grants appellate courts the authority to “revise a

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


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1105 | October 18, 2018   Page 3 of 6
       court's decision, [this] Court finds that the sentence is inappropriate in

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

       do not look to see whether the defendant's sentence is appropriate or if

       another sentence might be more appropriate; rather, the test is whether the

       sentence is “inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct.

       App. 2007). A defendant bears the burden of persuading this Court that

       his sentence meets the inappropriateness standard. Anglemyer v. State, 868

       N.E.2d 482, 490 (2007).


[9]    At sentencing, Smith expressed remorse for his actions and apologized to the

       victim. Prior to this offense, Smith held steady employment, and a lengthy

       prison sentence will result in a hardship on his children, whom he cannot

       support while incarcerated.

[10]   In considering the nature of the offenses, “the advisory sentence is the starting

       point the Legislature has selected as an appropriate sentence.” Id. at 494.

       When determining the appropriateness of a sentence that deviates from an

       advisory sentence, we consider whether there is anything more or less

       egregious about the offense as committed by the defendant that “makes it

       different from the typical offense accounted for by the legislature when it set

       the advisory sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct.

       App. 2011).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1105 | October 18, 2018   Page 4 of 6
[11]   In light of both the nature of the offense and his character, Smith’s five-year

       sentence with one year in community corrections for a Level 5 felony

       criminal confinement and a Level 6 felony domestic battery is not

       inappropriate. The circumstances surrounding Smith's offenses are troubling.

       His offenses were committed in the presence of children. He threatened T.F.

       with a knife and threatened to kill everyone in the residence. While in jail,

       Smith repeatedly violated a no contact order and placed more than 100

       telephone calls to T.F. Smith threatened and manipulated his victim while

       awaiting trial, is a continued danger to his family and the community, and has

       repeatedly failed to follow through with medication.


[12]   Smith’s juvenile history includes the crimes of false informing, burglary,

       conspiracy to commit burglary, and theft in 2006. His criminal history

       includes a class B felony conviction for burglary and carrying a handgun

       without a license in 2011 in which he was sentenced to six years in the

       Department of Correction. In 2011, Smith was again convicted of burglary

       and sentenced to 10 years with 4 years on probation. Finally, Smith was on

       probation when he committed the instant offenses.

[13]   After examining the nature of Smith’s offenses and Smith’s character, we

       conclude that the sentence imposed by the trial court is not inappropriate.

[14]   Affirmed.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1105 | October 18, 2018   Page 5 of 6
Vaidik, C.J., and Riley, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1105 | October 18, 2018   Page 6 of 6
