ARTHUR v. STATE (2024)

MEMORANDUM DECISION

Case Summary

[1] Gary Wayne Arthur appeals his sentence following his guilty plea to robbery, as a Level 2 felony.¹ Arthur raises one issue for our review, namely, whether his sentence is inappropriate in light of the nature of the offense and his character. We affirm.

Facts and Procedural History

[2] On April 20, 2022, Charles Ferguson drove a truck that he had recently purchased to a Speedway gas station. Ferguson parked his truck but left it running and entered the gas station. That same day, Arthur was on a “three-day bender” and was high on methamphetamine, cocaine, and heroin. Tr. at 16. Arthur had been walking for six miles when he stopped at the gas station to get a cup of coffee. After he exited the store, Arthur saw Ferguson's running truck, “just g[o]t in[,]” and began to drive away. Id. at 15.

[3] Ferguson saw Arthur enter his truck and ran toward it. He grabbed onto the driver's side door and tried “to pull [Arthur] out of the car.” Id. at 19. Arthur “pulled away,” “hit the gas,” and “ran over” Ferguson. Id. Arthur then drove away, hit another vehicle, and was ejected from the truck. Ferguson sustained a “[c]rushed pelvis” and a traumatic brain injury, and he can no longer maintain full-time employment. Id. at 32.

[4] The State charged Arthur with auto theft, as a Level 6 felony (Count 1);² leaving the scene of an accident, a Level 6 felony (Count 2);³ reckless driving, a Class C misdemeanor (Count 3);⁴ and robbery, as a Level 2 felony (Count 4). Thereafter, Arthur pleaded guilty to Count 4, and the court entered judgment of conviction accordingly. At a sentencing hearing, the court identified aggravators and mitigators. In particular, the court found Arthur's “atrocious” criminal history, the fact that he was on bond for the instant offense when he was charged with two new offenses, and the nature and circumstances of the crime to be aggravating. Id. at 45. As for mitigators, the court noted that Arthur “at least partially” accepted responsibility and “seem[ed] genuinely remorseful.” Id. at 46-47. The court found that the aggravators “substantially” outweighed the mitigators and sentenced Arthur to twenty-seven years executed in the Department of Correction (“DOC”), but the court noted that it would consider a sentence modification “when [he] get[s] to the advisory[.]” Id. at 47. This appeal ensued.

Discussion and Decision

[5] Arthur contends that his sentence is inappropriate in light of the nature of the offense and his character. Indiana Appellate Rule 7(B) provides that “[t]he Court may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” This Court has held that “[t]he advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana Supreme Court has previously explained that:

The principal role of appellate review should be to attempt to leaven the outliers ․ but not achieve a perceived “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007), decision clarified on reh'g, 875 N.E.2d 218 (Ind. 2007).

Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).

[6] Indiana's flexible sentencing scheme allows trial courts to tailor an appropriate sentence to the circumstances presented, and the trial court's judgment “should receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we regard a sentence as inappropriate 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 facts that come to light in a given case.” Id. at 1224. The question is not whether another sentence is more appropriate, but rather whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[7] The sentencing range for Arthur's Level 2 felony conviction is ten years to thirty years, with an advisory sentence of seventeen and one-half years. Ind. Code § 35-50-2-4.5. During the sentencing hearing, the court identified as aggravating factors Arthur's criminal history and the nature and circumstances of the offense. And the court identified as mitigators the fact that Arthur had partially accepted responsibility and that he was remorseful. The court found that the aggravators outweighed the mitigators and sentenced Arthur to twenty-seven years executed in the DOC.

[8] On appeal, Arthur contends that his sentence in inappropriate in light of the nature of the offense because Ferguson's injuries were no worse than “what is necessary to prove the Serious Bodily Injury element of the Robbery.” Appellant's Br. at 9. He also contends that his sentence is inappropriate in light of his character because he had “started to [attend] church,” because he took responsibility for his nephew when he “had no obligation to do so,” and because his ex-wife testified that he “was a great dad[.]” Id. at 8. He also maintains that, while he has a criminal history, he “went over fifteen years without being accused of a crime” before the present offense. Id. at 9.

[9] However, Arthur has not met his burden on appeal to demonstrate that his sentence is inappropriate. With respect to the nature of the offense, Arthur, while high on methamphetamine, cocaine, and heroin from a three-day bender, stole a car from a gas station. When Ferguson tried to stop Arthur, Arthur pushed him out of the car and ran over him, causing Ferguson to sustain a crushed pelvis and a traumatic brain injury. As a result of his injuries, Ferguson has been unable to return to full-time employment, he gets headaches, and he has problems with his memory. Arthur has not presented compelling evidence portraying the nature of the offense in a positive light. See Stephenson, 29 N.E.3d at 122.

[10] As for his character, Arthur has a criminal history that includes three true findings as a juvenile, two felony convictions, and three misdemeanor convictions. Further, Arthur was out on the bond for the instant offense when he was charged with additional offenses. In addition, Arthur was actively using numerous illegal substances at the time of this offense, which reflects poorly on his character. Arthur has not presented evidence of substantial virtuous traits or persistent examples of good character. See id. We cannot say that Arthur's sentence is inappropriate in light of the nature of his character. We therefore affirm Arthur's sentence.⁵

[11] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-5-1(a)(2).

2.   I.C. § 35-43-4-2(a).

3.   I.C. § 9-26-1-1.1.

4.   I.C. § 9-21-8-52(a)(1).

5.   Arthur also asserts that the court improperly considered Ferguson's injury to be an aggravating factor. However, Arthur has not made a separate, cogent argument that the court abused its discretion when it sentenced him. As such, he has waived that purported argument.

Bailey, Judge.

Bradford, J., and Foley, J., concur.