MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 29 2018, 9:52 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
Kristin A. Mulholland Curtis T. Hill, Jr.
Crown Point, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Richard Devon Smith, January 29, 2018
Appellant-Defendant, Court of Appeals Case No.
45A03-1709-CR-2016
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Samuel L. Cappas,
Appellee-Plaintiff Judge
Trial Court Cause No.
45G04-1601-F3-2
45G04-1608-F6-179
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2016 | January 29, 2018 Page 1 of 7
[1] Richard Devon Smith appeals as inappropriate the sentences imposed following
his convictions of Level 3 felony armed robbery 1 and Level 6 felony battery. 2
Finding nothing inappropriate about the ten and a half years he was ordered to
serve for those two crimes, 3 we affirm.
Facts and Procedural History
[2] On the evening of January 11, 2016, Smith entered a liquor store, pointed a
handgun at the store clerk, and demanded all the money from the cash register.
The clerk filled a plastic bag with the money from the register. Smith then
demanded the clerk put her cell phone in the bag. The clerk complied. Smith
took the bag and backed out of the liquor store while continuing to point his
handgun at the clerk. Police arrested Smith, and the State charged him with
Level 3 felony armed robbery under cause number 45G04-1601-F3-002.
[3] While in Lake County Jail awaiting trial on that charge, Smith punched
Correction Officer Y. Darwish in the face. Officer Darwish and another officer
attempted to restrain Smith, but Smith threw a blanket over Officer Darwish’s
head and again punched him in the face. The video of the incident revealed no
1
Ind. Code § 35-42-5-1(1).
2
Ind. Code § 35-42-2-1(e)(2).
3
During the sentencing hearing, the trial court twice found Smith in contempt of court for using foul
language and interrupting the court. Smith does not challenge his contempt sentences, which were ordered
served consecutive to the sentences for robbery and battery. As Smith does not challenge the contempt
findings or sentences, we restrict our discussion to the facts relevant to the other two sentences.
Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2016 | January 29, 2018 Page 2 of 7
provocation by Officer Darwish for Smith’s attack, and during the altercation,
Smith was yelling threats against numerous officers. For these actions, under
cause number 45G04-1608-F6-179, the State charged Smith with two counts of
Level 6 felony battery and two counts of Level 6 felony intimidation. 4
[4] During 2016, the State also filed two other unrelated causes of action against
Smith. Under cause number 45G04-1602-F3-005, the State charged Smith with
Level 3 felony armed robbery and Level 3 felony criminal confinement. 5 Under
cause number 45G04-1610-F6-219, the State charged Smith with two counts of
Level 6 felony intimidation and one count of Class A misdemeanor resisting
law enforcement. 6
[5] In June 2017, Smith and the State reached an agreement by which all four of
his pending causes of action would be disposed. Smith agreed to plead guilty to
armed robbery of the liquor store and battery of Officer Darwish. The State
agreed to dismiss all remaining pending charges, which included seven felonies
and one misdemeanor. The agreement provided the sentences for the two
convictions would be served consecutively, but it capped the possible sentence
for Level 3 felony armed robbery at nine years and for Level 6 felony battery at
eighteen months.
4
Ind. Code § 35-45-2-1(a)(2)(B)(i).
5
Ind. Code § 35-42-3-3.
6
Ind. Code § 35-44.1-3-1.
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[6] The court held a sentencing hearing and then ordered Smith to serve nine years
for armed robbery consecutive to eighteen months for battery. In the process of
reaching its decision, the court made the following findings:
Aggravating Circumstances:
1. The defendant has had six (6) juvenile contacts with the
criminal justice system, resulting in five (5) juvenile
adjudications;
2. The defendant has had eight (8) adult contacts with the
criminal justice system, resulting in two (2) felony
convictions and one (1) misdemeanor conviction;
3. These multiple contacts with the criminal justice system
demonstrate that the defendant is unable to conform his
behavior to the norms of society;
4. The defendant is in need of rehabilitation that can only be
provided by a penal facility, the reasons for which are
stated in Number 3 above.
Mitigating Circumstances:
1. The defendant is twenty-three (23) years of age;
2. The defendant admitted his guilt by way of a plea
agreement, thus saving the Court and the tax payers of this
county the time and expense of a trial.
The Court finds that the aggravating factors outweigh the
mitigating factors.
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(App. Vol. 2 at 26-7.)
Discussion and Decision
[7] Smith asserts his sentence is inappropriate. We may revise a sentence if it is
inappropriate in light of the nature of the offense and the character of the
offender. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008) (citing
Ind. Appellate Rule 7(B)). We consider the aggravators and mitigators found
by the trial court and also any other factors appearing in the record. Baumholser
v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016), trans. denied. The appellant
must demonstrate his sentence is inappropriate. Id. at 418.
[8] When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence. Anglemyer v. State, 868
N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The
sentencing range for a Level 3 felony is “a fixed term of between three (3) and
sixteen (16) years, with the advisory sentence being nine (9) years.” Ind. Code
§ 35-50-2-5. The sentencing range for a Level 6 felony is “a fixed term of
between six (6) months and two and one-half (2 ½) years, with the advisory
sentence being one (1) year.” Ind. Code § 35-50-2-7(b).
[9] The court sentenced Smith to nine years for armed robbery, which was the cap
provided by the plea agreement but is also the advisory sentence for a Level 3
felony. Smith’s sentence for battery of a law enforcement officer is eighteen
months, which was the cap provided by the plea agreement and is less than
Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2016 | January 29, 2018 Page 5 of 7
mid-way between the advisory and maximum sentences for Level 6 felony
battery. Those sentences do not seem inappropriate in light of the crimes Smith
committed. When robbing the liquor store clerk, Smith did not just display his
gun, he kept it pointed at her the entire time, and the experience caused the
clerk to have nightmares and difficulty going to work. The record suggests
Smith’s battery of Officer Darwish was unprovoked and Smith continued
beating Officer Darwish despite other officers’ attempts to intervene.
[10] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.
App. 2007). The significance of a criminal history in assessing a defendant’s
character varies based on the gravity, nature, and number of prior offenses in
relation to the current offense. Id. When sentencing Smith, the trial court
noted his juvenile and adult history of criminal behavior.
[11] Smith’s first involvement with the juvenile justice system occurred when Smith
was thirteen. His first adjudication as a delinquent came at age fourteen, when
he was disorderly and battered a police officer. Before being released from the
disposition for that adjudication, Smith was adjudicated a delinquent for
committing criminal recklessness and criminal mischief. For those acts he
served time in the Lake County Juvenile Center and the Illinois Department of
Correction. He also spent time in the Lake County Juvenile Center for false
informing. As an adult, in addition to the four causes of action that were
disposed by the plea agreement herein, Smith has convictions of resisting law
Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2016 | January 29, 2018 Page 6 of 7
enforcement in Lake County and battering a law enforcement officer with
bodily waste in Madison County.
[12] Despite having served a number of sentences for battering a law enforcement
officer, Smith was convicted herein of once again battering a correctional
officer. This repetition of behavior suggests Smith’s behavior is not being
modified by prior shorter terms of incarceration. Accordingly, we cannot find
inappropriate the slightly-above-advisory consecutive sentence he received
herein. See, e.g., Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007)
(advisory sentence not inappropriate when defendant’s criminal history
contains multiple convictions for similar offenses).
Conclusion
[13] In light of Smith’s character and the nature of his crimes, we see nothing
inappropriate about a ten-and-a-half-year sentence for the convictions herein.
We accordingly affirm.
[14] Affirmed.
Vaidik, C.J., and Altice, J., concur.
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Richard Devon Smith v. State of Indiana (mem. dec.)
Combined Opinion