Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before FILED
any court except for the purpose of Dec 27 2012, 8:52 am
establishing the defense of res judicata,
collateral estoppel, or the law of the CLERK
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN C. BOHDAN GREGORY F. ZOELLER
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
GARY R. ROM
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LEE E. DAVIS, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 02A04-1205-CR-241
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D06-1108-FB-167
December 27, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
SHARPNACK, Senior Judge
STATEMENT OF THE CASE
Lee Davis Jr. appeals the sentence he received for his conviction of robbery, a
Class B felony. Ind. Code § 35-42-5-1 (1984).
We affirm.
ISSUE
Davis presents one issue for our review: whether his sentence is inappropriate.
FACTS AND PROCEDURAL HISTORY
On July 28, 2011, Davis and three other individuals robbed a McDonald’s
restaurant in Fort Wayne while at least one of them was armed with a gun. The men
pointed a gun at the heads of two employees, and, while brandishing the gun, the men
ordered the employees to the floor and took the manager to the safe. After obtaining
money from the safe, the men left the restaurant. As they were crossing through the yard
of a home, they encountered its resident. The men ordered the resident to lie on the
ground at gunpoint and hit him in the head with a bag. The men were later apprehended,
and Davis was charged with robbery.
Davis pleaded guilty without a plea agreement, and the trial court sentenced him to
fifteen years. It is from this sentence that he now appeals.
DISCUSSION AND DECISION
Davis contends that his fifteen-year sentence is inappropriate. Particularly, he
argues that he should have received no more than the advisory sentence because he
accepted responsibility for his criminal behavior by pleading guilty.
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We may revise a sentence authorized by statute if, after due consideration of the
trial court’s decision, we determine that the sentence is inappropriate in light of the nature
of the offense and the character of the offender. Ind. Appellate Rule 7(B). A defendant
bears the burden of persuading the appellate court that his or her sentence has met the
inappropriateness standard of review. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.
2007), clarified on reh’g, 875 N.E.2d 218 (2007).
To assess the appropriateness of the sentence, we look first to the statutory range
established for the class of the offense. Here, the offense is a Class B felony, for which
the advisory sentence is ten years, with a minimum sentence of six years and a maximum
sentence of twenty years. Ind. Code § 35-50-2-5 (2005). Davis was sentenced to fifteen
years.
Next, we look to the nature of the offense and the character of the offender. As to
the nature of the current offense, Davis and his companions robbed a restaurant at
gunpoint, terrorizing the employees and the customers. They also accosted a man in his
own yard, striking him in the head.
With regard to the character of the offender, we observe that Davis has a notable
criminal history. He was placed on informal adjustment three times as a juvenile. As an
adult who was just twenty-two years old at the time of sentencing, he had already
accumulated three misdemeanor convictions and one felony conviction. He had
previously had his probation revoked, and he was on parole at the time he committed the
instant offense. According to his presentence investigation report, Davis is at high risk to
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reoffend. Moreover, although Davis attended substance abuse treatment, he indicated
that he has used marijuana daily since age eighteen, cocaine three times per week since
age nineteen, and that he has experimented with ecstasy.
In his brief, Davis points out that his act of pleading guilty is a mitigating
circumstance and that there are insufficient indicators to suggest he was an inappropriate
candidate for a suspended sentence. At sentencing, the trial court acknowledged the
mitigating quality of Davis’ plea, but also recognized that Davis’ juvenile and criminal
record and failed efforts at rehabilitation were aggravating circumstances.
Although Davis pleaded guilty to this charge, we note the pragmatism of this
decision based upon the evidence against him. See Wells v. State, 836 N.E.2d 475, 479
(Ind. Ct. App. 2005) (guilty plea does not rise to level of significant mitigation where
evidence against defendant is such that decision to plead guilty is merely pragmatic one),
trans. denied. Additionally, he has several convictions and has violated his probation.
Moreover, he was on parole at the time he committed the instant offense. It is clear that
prior leniency has proven ineffective to rehabilitate Davis, and this offense is further
proof that a longer period of incarceration is appropriate. Davis has not carried his
burden of persuading this Court that his sentence has met the inappropriateness standard
of review. See Anglemyer, 868 N.E.2d at 494. We do not find his sentence to be
inappropriate in light of the nature of the offense and his character.
CONCLUSION
Based upon the foregoing, we conclude that Davis’ sentence is not inappropriate.
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Affirmed.
MATHIAS, J., and PYLE, J., concur.
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