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, Jun 07 2013, 9:16 am
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK A. THOMA GREGORY F. ZOELLER
Leonard, Hammond, Thoma & Terrill Attorney General of Indiana
Fort Wayne, Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LARRY C. PERRY, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1211-CR-456
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D05-1201-FD-111
June 7, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
Larry Perry appeals his two-year sentence for Class D felony invasion of privacy.
He contends that his sentence is inappropriate in light of the nature of the offense and his
character. Because Perry has failed to persuade us that his sentence is inappropriate in
light of the nature of the offense and his character, we affirm.
Facts and Procedural History
In June 2011, a trial court issued an ex parte order for protection against Perry on
behalf of the mother of his child, Drema Johnson. The protective order provided that
Perry was prohibited from “harassing, annoying, telephoning, contacting or directly or
indirectly communicating” with Drema. State’s Ex. 1. Perry was served with this
protective order while he was residing in the Allen County Jail on unrelated charges.
Approximately one month later, Perry sent a two-page letter to Drema asking
about his son. Perry also congratulated Drema on the birth of her new baby. When
Drema received the letter, she contacted the police because she did not know how Perry
found her address or had any knowledge of her personal life.
The State charged Perry with Class A misdemeanor invasion of privacy, which
was elevated to a Class D felony based on his prior invasion of privacy conviction. A
bench trial was held, and Perry was found guilty.
In sentencing Perry, the trial court identified as aggravators his extensive criminal
history and that his prior efforts at rehabilitation had failed. Appellant’s App. p. 135.
The court found no mitigators. The trial court sentenced Perry to two years in the
Department of Correction.
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Perry now appeals.
Discussion and Decision
Perry contends that his two-year sentence is inappropriate in light of the nature of
the offense and his character and asks us to revise his sentence “to one (1) year
executed.” Appellant’s Br. p. 16.1
The Indiana Constitution authorizes us to conduct sentence revision “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.” Ind.
Appellate Rule 7(B). The principal role of such review is to attempt to leaven the
outliers. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). The burden rests with
the defendant to persuade us that his or her sentence is inappropriate. Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006).
A person who commits a Class D felony shall be imprisoned for a fixed term of
between six months and three years, with the advisory sentence being one and one-half
years. Ind. Code § 35-50-2-7. Here, the trial court sentenced Perry to two years. This
sentence is within the statutory range.
As for the nature of the offense, Perry sent a letter that violated a protective order
issued to protect a woman whom he had previously choked and threatened to kill. He
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Perry’s sole argument on appeal is that his two-year executed sentence is inappropriate. See
Appellant’s Br. p. 1. However, because Perry references aggravators and mitigators in his argument, the
State construes Perry’s argument as including the contention that the trial court abused its discretion by
failing to consider certain mitigators. Insofar as Perry’s argument contains this assertion, we observe that
whether a trial court has abused its discretion by improperly recognizing aggravators and mitigators when
sentencing a defendant and whether a defendant’s sentence is inappropriate under Indiana Appellate Rule
7(B) are two distinct analyses. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Because Perry
frames his argument as one made under Indiana Appellate Rule 7(B), we so confine our discussion.
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also threatened to kill her son and had been in a fight with her mother, father, and brother.
Appellant’s App. p. 71-74. Perry sent the letter to the victim only one month after the
protective order was issued, and understandably, the victim’s first thought was “he found
me.” Id. at 65. The circumstances of the offense are serious notwithstanding his claim
that he was trying to amiably resolve their differences for the benefit of their child.
As for Perry’s character, it, too, does not warrant a reduced sentence. We note
that the twenty-six-year-old Perry has an extensive criminal history, which began in 2000
and includes six felony convictions, eight misdemeanor convictions, and four juvenile
adjudications. The convictions include three domestic battery convictions and two
invasion of privacy convictions. As the trial court observed, Perry has had “plenty of
opportunities at rehabilitation,” which he did not take advantage of. Id. at 135. Perry’s
criminal history and failed efforts of rehabilitation in and of itself justifies the enhanced
sentence. Perry did express regret by saying, “I just want to apologize to the victim,
Drema or whatever. And that’s it.” Id. at 131. However, the trial court determined that
he was not remorseful. The trial court is in the best position to judge the sincerity of a
defendant's remorseful statements. Stout v. State, 834 N.E.2d 707, 711 (Ind. Ct. App.
2005), trans. denied. We also note that Perry did not take responsibility for his actions
and only offered explanations for why he committed the offense. Finally, the fact that
Perry waived his right to a jury trial does not reflect his character either positively or
negatively.
Given the nature of the offense and his character, Perry has failed to persuade us
that his two-year sentence is inappropriate.
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Affirmed.
KIRSCH, J., and PYLE, J., concur.
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