MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 18 2018, 6:49 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
Brian A. Karle Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana
Kelly A. Loy
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gramm Webster Smith, October 18, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1105
v. Appeal from the
Tippecanoe Superior Court
State of Indiana, The Honorable Steven P. Meyer
Appellee-Plaintiff Trial Court Cause No.
79D02-1801-F5-8
Kirsch, Judge.
[1] Following his guilty pleas to Criminal Confinement and Domestic Battery in
the Presence of a Minor, Gramm Smith was sentenced to five (5) years, with
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four (4) years to be served at the Indiana Department of Correction and one (1)
year on community corrections. Contending that his sentence is inappropriate,
he now appeals.
[2] We affirm.
Facts and Procedural History
[3] On the evening of January 6, 2018, Smith, his girlfriend, T.F., and their two
children, were visiting a residence when Smith and T.F. began to argue. T.F.
went to the car to move the child car seats, and Smith pushed her into the rear
passenger seat and began to drive. T.F. yelled for Smith to let her out, and T.F.
eventually got out of the car and ran back to the residence. Smith followed her
into the residence, argued with her, and shoved her down. He then grabbed a
knife and threatened to kill everyone if anyone called the police.
[4] When the police arrived, Q.S., Smith’s and T.F’s seven-year-old child, told the
police that he saw Smith push his mom down, that Smith said he would kill
everyone in the house, and that he saw Smith retrieve a knife from the kitchen.
[5] The State charged Smith with Count 1, kidnapping, a Level 5 felony; Count 2,
criminal confinement, a Level 5 felony; Count 3, intimidation, a Level 5 felony;
and Count 4, domestic battery in the presence of a minor, a Level 6 felony.
Smith pleaded guilty to Count 2 and Count 4, pursuant to a written plea
agreement, and the remaining counts were dismissed.
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[6] The trial court found the following mitigating factors: 1) Smith pled guilty, 2)
long term imprisonment could result in an undue hardship on Smith’s children,
3) and Smith’s mental health issues. The trial court found the following
aggravating circumstances: 1) Smith’s overall character, 2) Smith violated the
no-contact order over 600 times, 3) Smith’s criminal history, 4) Smith
committed the instant offense while on probation, 5) Smith’s ongoing gang
affiliation, and 6) the seriousness of the offense. The trial court found that the
aggravators outweighed the mitigators and sentenced Smith to an aggregate
sentence of five years with one year of community service and imposed a no
contact order.
Discussion and Decision
[7] On appeal, Smith argues that that his sentence is inappropriate. In support of
his contention, Smith notes that his sentence is two years above the advisory
sentence for a Level 5 felony, that a majority of that time was ordered to be
executed in prison and that his offense is not more egregious than the “typical”
offense to which he pleaded guilty. He also contends that his offense may have
been the product of mental illness, for which he is willing to obtain treatment.
Finally, Smith also states that he pleaded guilty and took responsibility for his
actions and that, while he has criminal history, none relates to domestic
violence.
[8] Indiana Appellate Rule 7(B) grants appellate courts the authority to “revise a
sentence authorized by statute if, after due consideration of the trial
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court's decision, [this] Court finds that the sentence is inappropriate in
light of the nature of the offense and the character of the offender.” We
do not look to see whether the defendant's sentence is appropriate or if
another sentence might be more appropriate; rather, the test is whether the
sentence is “inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct.
App. 2007). A defendant bears the burden of persuading this Court that
his sentence meets the inappropriateness standard. Anglemyer v. State, 868
N.E.2d 482, 490 (2007).
[9] At sentencing, Smith expressed remorse for his actions and apologized to the
victim. Prior to this offense, Smith held steady employment, and a lengthy
prison sentence will result in a hardship on his children, whom he cannot
support while incarcerated.
[10] In considering the nature of the offenses, “the advisory sentence is the starting
point the Legislature has selected as an appropriate sentence.” Id. at 494.
When determining the appropriateness of a sentence that deviates from an
advisory sentence, we consider whether there is anything more or less
egregious about the offense as committed by the defendant that “makes it
different from the typical offense accounted for by the legislature when it set
the advisory sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct.
App. 2011).
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[11] In light of both the nature of the offense and his character, Smith’s five-year
sentence with one year in community corrections for a Level 5 felony
criminal confinement and a Level 6 felony domestic battery is not
inappropriate. The circumstances surrounding Smith's offenses are troubling.
His offenses were committed in the presence of children. He threatened T.F.
with a knife and threatened to kill everyone in the residence. While in jail,
Smith repeatedly violated a no contact order and placed more than 100
telephone calls to T.F. Smith threatened and manipulated his victim while
awaiting trial, is a continued danger to his family and the community, and has
repeatedly failed to follow through with medication.
[12] Smith’s juvenile history includes the crimes of false informing, burglary,
conspiracy to commit burglary, and theft in 2006. His criminal history
includes a class B felony conviction for burglary and carrying a handgun
without a license in 2011 in which he was sentenced to six years in the
Department of Correction. In 2011, Smith was again convicted of burglary
and sentenced to 10 years with 4 years on probation. Finally, Smith was on
probation when he committed the instant offenses.
[13] After examining the nature of Smith’s offenses and Smith’s character, we
conclude that the sentence imposed by the trial court is not inappropriate.
[14] Affirmed.
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Vaidik, C.J., and Riley, J., concur.
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