Charles D. Lambright v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 15, 2021
• Docket: 20A-CR-1533
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 15 2021, 8:22 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald R. Shuler Theodore E. Rokita Barkes, Kolbus, Rife & Shuler, LLP Attorney General of Indiana Goshen, Indiana Tina L. Mann Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA Charles D. Lambright, January 15, 2021 Appellant-Defendant, Court of Appeals Case No. 20A-CR-1533 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Gretchen S. Lund, Appellee-Plaintiff. Judge Trial Court Cause No. 20D04-2002-F6-290

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1533 | January 15, 2021 Page 1 of 5 [1] Charles D. Lambright appeals his sentence for theft as a level 6 felony and

asserts his sentence is inappropriate. We affirm.

Facts and Procedural History

[2] On July 24, 2019, Lambright knowingly exerted unauthorized control over

merchandise of Chalet Party Shoppe in Goshen with the intent to deprive it of

the value of the property. Lambright cites portions of the probable cause

affidavit and asserts in his appellant’s brief that he had attempted to purchase

two beers but was refused due to appearing intoxicated, the store clerk observed

a strong odor of alcohol from him and that he had difficulty walking, he was

advised to leave, he “grabbed two (2) four-packs” of Fireball “valued at $8.11,

on his way out,” and law enforcement located him in a nearby parking lot and

found the two packs of Fireball. Appellant’s Brief at 5-6 (citing Appellant’s

Appendix Volume II at 11).

[3] The State charged Lambright with theft as a level 6 felony and alleged he had a

previous conviction for conversion. Lambright pled guilty without the benefit of

a plea agreement. At sentencing, Lambright’s counsel argued “[t]he item . . .

we are dealing with in this case . . . was a six-pack of little alcohol in the little

shooter bottles of . . . the cinnamon stuff . . . it had a value of . . . $8.11.”

Transcript Volume II at 22. The court found the aggravating circumstances

included Lambright’s history of criminal activity, his prior violations of

community supervision, the fact he was on parole at the time of the offense and

had a pending probation violation, other forms of sanctions had proven

unsuccessful, and he had not taken advantage of programs or alternative Court of Appeals of Indiana | Memorandum Decision 20A-CR-1533 | January 15, 2021 Page 2 of 5 sentences offered to him. The court found the mitigating circumstances

included that Lambright had taken responsibility for his actions and pled guilty

without the benefit of a plea agreement. The court sentenced Lambright to two

years and ordered: “Sentence to be served at [Elkhart County Jail]. Court will

commit to a modification of placement into community based program,

community corrections, probation, or early release if [Lambright] successfully

completes Substance Abuse Phases 1 and 2 and MRT at ECJ.” Appellant’s

Appendix Volume II at 66.

Discussion

[4] Lambright claims his executed, enhanced sentence of two years is

inappropriate. He argues the offense was minimal in nature and was at its core

a misdemeanor offense, there is no evidence that any individual was in danger

or that property was damaged, and the merchandise had a value of only $8.11.

He argues that he was cooperative with police and pled guilty without the

benefit of a plea agreement.

[5] 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).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1533 | January 15, 2021 Page 3 of 5 [6] 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.

[7] Our review of the nature of the offense reveals that Lambright knowingly

exerted unauthorized control over merchandise of Chalet Party Shoppe, that

being liquor valued at $8.11, with the intent to deprive it of the value of the

property and had a previous unrelated conviction for conversion. A store

employee had refused to allow him to purchase beer due to a strong odor of

alcohol about his person and his difficulty walking.

[8] Our review of the character of the offender reveals that Lambright pled guilty

without the benefit of a plea agreement. The presentence investigation report

(“PSI”) states that Lambright, who was born in 1956, reported that he began

regularly consuming alcohol in his adolescence and had over fifty years of

alcohol abuse with some periods of abstinence. He reported that he received

alcohol treatment at Richmond Hospital in 1972, at Life Treatment Center in

1997, and via the CLIFF Program through the Indiana Department of

Correction in 2007 and 2016. According to the summary of legal history in the

PSI, Lambright’s criminal history includes misdemeanor convictions for

reckless driving in 1975; driving while suspended in 1976; possession of

marijuana in 1980; nine convictions for public intoxication between 1979 and

2019; driving while intoxicated in 1979 and 1995; criminal recklessness and

fleeing in 1979; criminal mischief in 1984; assault in 1987; battery in 1999;

resisting arrest in 1999; and criminal conversion in 1999, 2002, and 2011. The

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1533 | January 15, 2021 Page 4 of 5 PSI provides that Lambright has felony convictions for burglary in 1976, 2006,

and 2015; driving while intoxicated in 1985 and 1997; armed robbery in 1988;

residential entry in 1999; and theft in 2003. It also notes that he has had at least

nine public intoxication charges dismissed. He was on parole when he

committed the instant offense. He was previously unsatisfactorily discharged

from probation. The PSI indicates Lambright’s overall risk assessment score

using the Indiana Risk Assessment System places him in the high risk to

reoffend category. We also note the court left open a modification of placement

based upon Lambright receiving treatment.

[9] After due consideration, we conclude that Lambright has not sustained his

burden of establishing that his sentence is inappropriate in light of the nature of

the offense and his character.

[10] For the foregoing reasons, we affirm Lambright’s sentence.

[11] Affirmed.

Vaidik, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1533 | January 15, 2021 Page 5 of 5