MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 31 2020, 9:23 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald R. Shuler Curtis T. Hill, Jr. Barkes, Kolbus, Rife & Shuler, LLP Attorney General of Indiana Goshen, Indiana Catherine Brizzi Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Arthur Tucker, July 31, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-581 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Gretchen S. Lund, Appellee-Plaintiff. Judge Trial Court Cause No. 20D04-1910-F6-1354
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-581 | July 31, 2020 Page 1 of 6 [1] Arthur Tucker appeals his sentence for theft as a level 6 felony. He asserts his
sentence is inappropriate. We affirm.
Facts and Procedural History
[2] On October 2, 2019, Tucker knowingly exerted unauthorized control over
merchandise from Walmart with the intention to deprive it of the use or value
thereof. Although the guilty plea transcript reveals little about the nature of his
offense, Tucker cites portions of the probable cause affidavit and asserts in his
appellant’s brief that he stole clothes and alcohol, a Walmart employee pointed
toward a vehicle speeding through the parking lot, an officer stopped the vehicle
and observed several bottles of alcohol in the backseat, and he answered
“Theft” when asked by the officer what happened. Appellant’s Brief at 6.
[3] On October 4, 2019, the State charged Tucker with theft and alleged that the
offense was elevated from a class A misdemeanor to a level 6 felony based upon
a prior conviction. On January 15, 2020, the court held a hearing, and Tucker
pled guilty without a plea agreement.
[4] On February 12, 2020, the court held a sentencing hearing. Tucker’s counsel
asserted that Tucker admitted everything when he was stopped by police and
that the presentence investigation report (“PSI”) revealed that Tucker reported
he was scared about relapsing and went to Life Treatment Center, and “they
sent him away.” Transcript Volume II at 18. He argued that “I think that
there’s enough mitigators there to justify giving him Life Treatment Center.”
Id. at 19. The prosecutor asked for a sentence of two and one-half years.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-581 | July 31, 2020 Page 2 of 6 Tucker asserted that he needed treatment and wanted to become a recovery
coach.
[5] The court noted that Tucker had a criminal history, was on probation in cause
number 71D02-1611-F5-229 (“Cause No. 229”) at the time of the offense, had
violated community supervision eleven times, and had not taken advantage of
the programming or alternative sanctions offered in the past. It noted that other
forms of sanctions had proved to be unsuccessful in keeping him from engaging
in criminal activity. The court found his acceptance of responsibility as a
mitigating circumstance and noted that he was sincere in his request to receive
treatment. It found that “the aggravators, taken individually or as a whole,
outweigh any mitigating factors.” Id. at 23. The court sentenced Tucker to two
years and ordered that the sentence be served consecutive to his sentence under
Cause No. 229. The sentencing order states that “[i]f [Tucker] is placed in
DOC, [he] participate in” the Recovery While Incarcerated Program and that,
“[u]pon successful completion of the clinically appropriate substance abuse
treatment program as determined by IDOC, the court will consider a
modification to this sentence.” Appellant’s Appendix Volume II at 58.
Discussion
[6] The issue is whether Tucker’s sentence is inappropriate in light of the nature of
the offense and his character. Tucker argues that his sentence is inappropriate
because his actions are typically classified as a class A misdemeanor and the
offense rose to a level 6 felony only because he had a prior unrelated conviction
for theft. He asserts that there was no evidence that anyone was ever in danger Court of Appeals of Indiana | Memorandum Decision 20A-CR-581 | July 31, 2020 Page 3 of 6 or that the property taken was damaged in any way. He asserts he was honest
and cooperative with the police when stopped and his actions were the result of
his addiction.
[7] The State argues that Tucker stole over $200 worth of alcohol and entered a
vehicle that drove quickly and erratically through a heavily populated area. It
contends that the minimal damage done to the stolen property was likely the
result of the expedient arrival of the officer, and that Tucker has an extensive
criminal history and his guilty plea was purely pragmatic.
[8] 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).
[9] Ind. Code § 35-50-2-7 provides that a person who commits a level 6 felony shall
be imprisoned for a fixed term of between six months and two and one-half
years, with the advisory sentence being one year.
[10] Our review of the nature of the offense reveals that Tucker knowingly exerted
unauthorized control over alcohol and clothes from Walmart with the intention
to deprive it of the use or value of the property. He entered a vehicle which
sped through the parking lot and answered “Theft” when stopped by an officer
and asked what happened. Appellant’s Brief at 6.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-581 | July 31, 2020 Page 4 of 6 [11] Our review of the character of the offender reveals that Tucker pled guilty as
charged. The PSI reveals that Tucker reported he began consuming alcohol on
a regular basis at the age of thirteen or fourteen, last used alcohol on the date of
his arrest, and had been sober for months prior to that date. He reported using
cocaine at the age of twenty-one, last used it on the date of his arrest, and had
not used it for months prior to his arrest. He reported that he completed
outpatient substance abuse treatment in 2005 and began substance abuse
treatment during the summer of 2016 while incarcerated at the St. Joseph
County Jail and the Westville Correctional Facility but did not complete the
programs because he was released prior to completion. The PSI states that
Tucker’s probation officer “indicated her Petition to Revoke Probation cited a
positive drug screen, failure to do drug screens and treatment, and failure to pay
fees.” Appellant’s Appendix Volume II at 41.
[12] The PSI reveals that Tucker was convicted of burglary as a class C felony in
1992; operating a motor vehicle without ever receiving a license as a class C
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 31 2020, 9:23 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald R. Shuler Curtis T. Hill, Jr. Barkes, Kolbus, Rife & Shuler, LLP Attorney General of Indiana Goshen, Indiana Catherine Brizzi Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Arthur Tucker, July 31, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-581 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Gretchen S. Lund, Appellee-Plaintiff. Judge Trial Court Cause No. 20D04-1910-F6-1354
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-581 | July 31, 2020 Page 1 of 6 [1] Arthur Tucker appeals his sentence for theft as a level 6 felony. He asserts his
sentence is inappropriate. We affirm.
Facts and Procedural History
[2] On October 2, 2019, Tucker knowingly exerted unauthorized control over
merchandise from Walmart with the intention to deprive it of the use or value
thereof. Although the guilty plea transcript reveals little about the nature of his
offense, Tucker cites portions of the probable cause affidavit and asserts in his
appellant’s brief that he stole clothes and alcohol, a Walmart employee pointed
toward a vehicle speeding through the parking lot, an officer stopped the vehicle
and observed several bottles of alcohol in the backseat, and he answered
“Theft” when asked by the officer what happened. Appellant’s Brief at 6.
[3] On October 4, 2019, the State charged Tucker with theft and alleged that the
offense was elevated from a class A misdemeanor to a level 6 felony based upon
a prior conviction. On January 15, 2020, the court held a hearing, and Tucker
pled guilty without a plea agreement.
[4] On February 12, 2020, the court held a sentencing hearing. Tucker’s counsel
asserted that Tucker admitted everything when he was stopped by police and
that the presentence investigation report (“PSI”) revealed that Tucker reported
he was scared about relapsing and went to Life Treatment Center, and “they
sent him away.” Transcript Volume II at 18. He argued that “I think that
there’s enough mitigators there to justify giving him Life Treatment Center.”
Id. at 19. The prosecutor asked for a sentence of two and one-half years.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-581 | July 31, 2020 Page 2 of 6 Tucker asserted that he needed treatment and wanted to become a recovery
coach.
[5] The court noted that Tucker had a criminal history, was on probation in cause
number 71D02-1611-F5-229 (“Cause No. 229”) at the time of the offense, had
violated community supervision eleven times, and had not taken advantage of
the programming or alternative sanctions offered in the past. It noted that other
forms of sanctions had proved to be unsuccessful in keeping him from engaging
in criminal activity. The court found his acceptance of responsibility as a
mitigating circumstance and noted that he was sincere in his request to receive
treatment. It found that “the aggravators, taken individually or as a whole,
outweigh any mitigating factors.” Id. at 23. The court sentenced Tucker to two
years and ordered that the sentence be served consecutive to his sentence under
Cause No. 229. The sentencing order states that “[i]f [Tucker] is placed in
DOC, [he] participate in” the Recovery While Incarcerated Program and that,
“[u]pon successful completion of the clinically appropriate substance abuse
treatment program as determined by IDOC, the court will consider a
modification to this sentence.” Appellant’s Appendix Volume II at 58.
Discussion
[6] The issue is whether Tucker’s sentence is inappropriate in light of the nature of
the offense and his character. Tucker argues that his sentence is inappropriate
because his actions are typically classified as a class A misdemeanor and the
offense rose to a level 6 felony only because he had a prior unrelated conviction
for theft. He asserts that there was no evidence that anyone was ever in danger Court of Appeals of Indiana | Memorandum Decision 20A-CR-581 | July 31, 2020 Page 3 of 6 or that the property taken was damaged in any way. He asserts he was honest
and cooperative with the police when stopped and his actions were the result of
his addiction.
[7] The State argues that Tucker stole over $200 worth of alcohol and entered a
vehicle that drove quickly and erratically through a heavily populated area. It
contends that the minimal damage done to the stolen property was likely the
result of the expedient arrival of the officer, and that Tucker has an extensive
criminal history and his guilty plea was purely pragmatic.
[8] 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).
[9] Ind. Code § 35-50-2-7 provides that a person who commits a level 6 felony shall
be imprisoned for a fixed term of between six months and two and one-half
years, with the advisory sentence being one year.
[10] Our review of the nature of the offense reveals that Tucker knowingly exerted
unauthorized control over alcohol and clothes from Walmart with the intention
to deprive it of the use or value of the property. He entered a vehicle which
sped through the parking lot and answered “Theft” when stopped by an officer
and asked what happened. Appellant’s Brief at 6.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-581 | July 31, 2020 Page 4 of 6 [11] Our review of the character of the offender reveals that Tucker pled guilty as
charged. The PSI reveals that Tucker reported he began consuming alcohol on
a regular basis at the age of thirteen or fourteen, last used alcohol on the date of
his arrest, and had been sober for months prior to that date. He reported using
cocaine at the age of twenty-one, last used it on the date of his arrest, and had
not used it for months prior to his arrest. He reported that he completed
outpatient substance abuse treatment in 2005 and began substance abuse
treatment during the summer of 2016 while incarcerated at the St. Joseph
County Jail and the Westville Correctional Facility but did not complete the
programs because he was released prior to completion. The PSI states that
Tucker’s probation officer “indicated her Petition to Revoke Probation cited a
positive drug screen, failure to do drug screens and treatment, and failure to pay
fees.” Appellant’s Appendix Volume II at 41.
[12] The PSI reveals that Tucker was convicted of burglary as a class C felony in
1992; operating a motor vehicle without ever receiving a license as a class C
misdemeanor and criminal conversion as a class A misdemeanor in 1994; theft
as a class D felony in 1995; dealing in cocaine as a class B felony in 1996;
possession of cocaine as a class C felony in 1999; trespass as a class A
misdemeanor in 2001; trespass and criminal mischief in 2004; battery and
trespassing in 2005; two counts of theft as class D felonies in 2006; resisting law
enforcement and battery in 2007; possession of cocaine, methamphetamine, or
a schedule I or II narcotic drug as a class D felony in 2008; robbery as a class C
felony in 2009; panhandling as a class C misdemeanor in 2013; two counts of
Court of Appeals of Indiana | Memorandum Decision 20A-CR-581 | July 31, 2020 Page 5 of 6 resisting law enforcement as class A misdemeanors, panhandling as a class C
misdemeanor, and two counts of criminal trespass as class A misdemeanors in
2014; possession of paraphernalia and attempted theft as class A misdemeanors
and possession of paraphernalia as a class C misdemeanor in 2015; criminal
trespass and two counts of theft as class A misdemeanors in 2016; and robbery
as a level 5 felony under Cause No. 229 in 2017. The PSI reveals that Tucker
was on probation in Cause No. 229 at the time of the present offense. It also
indicates that Tucker has violated community supervision eleven times in the
past.
[13] After due consideration and in light of his lengthy criminal history, we
conclude that Tucker has not sustained his burden of establishing that his
sentence is inappropriate in light of the nature of the offense and his character.
[14] For the foregoing reasons, we affirm Tucker’s sentence.
[15] Affirmed.
Robb, J. ,and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-581 | July 31, 2020 Page 6 of 6