MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Feb 21 2017, 9:58 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr. Curtis T. Hill, Jr.
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brandon M. Gilbert, February 21, 2017
Appellant-Defendant, Court of Appeals Case No.
02A03-1608-CR-1794
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D05-1503-F5-56
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1608-CR-1794 | February 21, 2017 Page 1 of 5
[1] Brandon Gilbert appeals the sentence he received after pleading guilty to
Corrupt Business Influence,1 a Level 5 Felony. Gilbert argues that the sentence
is inappropriate in light of the nature of the offense and his character. Finding
that the sentence is not inappropriate, we affirm.
Facts
[2] Between July 21 and September 17, 2014, Gilbert and a number of other
individuals came up with a plan to enter several different Lowes Home
Improvement Stores, alternating days with one another. They would pick up
items off of the shelf, take the unpaid-for merchandise to the return counter,
return the items for a store gift card, and then pawn the gift cards at a pawn
store. Gilbert bought heroin with the money he received from the pawn store.
[3] On March 3, 2015, the State charged Gilbert with Level 5 felony corrupt
business influence, and on May 18, 2015, Gilbert pleaded guilty as charged.
The trial court placed Gilbert into the drug court diversion program and
sentencing was deferred to afford him an opportunity to complete the program
successfully.
[4] Gilbert completed a transitional living program at the Shepard House and was
then placed at the Thirteen Step House. In March and April, Gilbert had four
dilute drug screens. On April 1 and May 11, 2016, Gilbert tested positive for
1
Ind. Code § 35-45-6-2.
Court of Appeals of Indiana | Memorandum Decision 02A03-1608-CR-1794 | February 21, 2017 Page 2 of 5
morphine. He missed eight drug screens between March and May. On May 2,
Gilbert filled a prescription for hydrocodone. On May 12, 2016, Gilbert failed
to return to the Thirteen Step House and was unsuccessfully discharged from
the program. As a result, the State filed a petition to terminate Gilbert’s
participation in the drug court diversion program. Gilbert admitted to the
allegations in the petition. The trial court revoked Gilbert’s placement in the
drug court diversion program and, on July 21, 2016, sentenced Gilbert to four
years imprisonment. Gilbert now appeals.
Discussion and Decision
[5] Gilbert’s sole argument on appeal is that the sentence imposed by the trial court
is inappropriate in light of the nature of the offense and his character. Indiana
Appellate Rule 7(B) provides that this Court may revise a sentence if it is
inappropriate in light of the nature of the offense and the character of the
offender. We must “conduct [this] review with substantial deference and give
‘due consideration’ to the trial court’s decision—since the ‘principal role of
[our] review is to attempt to leaven the outliers,’ and not to achieve a perceived
‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)
(quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal
citations omitted).
[6] For a Level 5 felony conviction, Gilbert faced a sentence of one to six years,
with an advisory term of three years imprisonment. Ind. Code § 35-50-2-6(b).
Gilbert received a four-year term.
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[7] With respect to the nature of the offense, Gilbert and his cohorts methodically
planned and committed acts of theft at Lowes stores on many occasions over a
three-month period. Gilbert and his counterparts operated strategically,
alternating the dates on which and the stores at which they committed these
offenses. The reason Gilbert committed this offense was to fund his drug habit.
[8] With respect to Gilbert’s character, he is thirty-two years old and has had
regular contact with the criminal justice system since the age of seventeen. He
has seven prior misdemeanor convictions and two prior felony convictions. He
has had the benefit of probation, short jail sentences, and the drug court
diversion program. He has had a suspended sentence revoked once and
probation revoked once. He has completed substance abuse treatment twice—
in 2004 and in 2016.
[9] We acknowledge that Gilbert is battling a serious drug and alcohol dependency
problem and has been for much of his life. We also acknowledge the uphill
battle that addicts face on a daily basis. But Gilbert has been afforded multiple
chances by our criminal justice system to reform his behavior and treat his
substance abuse issues. He has been either unwilling or unable to take
advantage of those opportunities. Under these circumstances, we find that the
four-year sentence imposed by the trial court is not inappropriate in light of the
nature of the offense and Gilbert’s character.
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[10] The judgment of the trial court is affirmed.
Mathias, J., and Pyle, J., concur.
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