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.
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[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.
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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
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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.
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[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
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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.
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Gregory T. Clark, II v. State of Indiana (mem. dec.)
Combined Opinion