MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any court except for the purpose of establishing Sep 29 2017, 11:27 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael P. DeArmitt Curtis T. Hill, Jr. Columbus, Indiana Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael Lee Campbell, September 29, 2017 Appellant-Defendant, Court of Appeals Case No. 03A04-1705-CR-1054 v. Appeal from the Bartholomew Circuit Court State of Indiana, The Honorable Kelly S. Benjamin, Appellee-Plaintiff. Judge Trial Court Cause No. 03C01-1610-F6-5903
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 03A04-1705-CR-1054 | September 29, 2017 Page 1 of 7 Statement of the Case [1] Michael L. Campbell (“Campbell”) appeals his sentence, which was imposed
following his guilty plea to Level 6 felony theft.1 He argues that his sentence
was inappropriate under Indiana Appellate Rule 7(B) in light of the nature of
his offense and his character. We conclude that his sentence was not
inappropriate and affirm the trial court.
[2] We affirm.
Issue Whether Campbell’s sentence was inappropriate in light of the nature of his offense and his character.
Facts [3] On October 28, 2016, the State charged Campbell with theft, which was
elevated to a Level 6 felony based on Campbell’s prior unrelated conviction for
theft. Two weeks later, the State charged him with another Level 6 felony theft
charge in another cause. On March 6, 2017, Campbell pled guilty to Level 6
felony theft in the instant cause in exchange for the State’s dismissal of the other
charge against him. The plea agreement left sentencing to the discretion of the
trial court.
1 IND. CODE § 35-43-4-2.
Court of Appeals of Indiana | Memorandum Decision 03A04-1705-CR-1054 | September 29, 2017 Page 2 of 7 [4] The trial court held a sentencing hearing on April 13, 2017. During the
hearing, Campbell admitted that he had stolen two Dyson Ball vacuum cleaners
from Wal-Mart, which he had hoped to sell for half price to get money for
drugs. He testified that he had been a heroin addict since he was eighteen years
old and had many previous convictions for theft because he kept stealing to
finance his drug addiction. He requested that the trial court impose a sentence
that would allow him to receive drug addiction treatment and have a slow
transition back to living on his own.
[5] The State introduced Campbell’s pre-sentence investigation report (“PSI”),
which indicated that Campbell had been convicted of forty-seven offenses since
1992—the equivalent of almost two convictions per year—and had been placed
on probation twenty-six times. The trial court counted sixty probation
violations in Campbell’s PSI, but Campbell argued that there had been only
nine separate petitions to revoke his probation. The trial court agreed that it
was not clear how many times Campbell had violated probation because some
of the violations listed in the PSI might have only been status hearings.
Nevertheless, the trial court concluded that, at a minimum, Campbell had
violated probation “numerous times.” (Tr. Vol. 2 at 24).
[6] With respect to Campbell’s request to receive drug treatment, Campbell
acknowledged that he had received an opportunity for drug treatment in 2007
and had failed to successfully complete that treatment. He also admitted that
he had been placed in a treatment program in June 2012 and been terminated
from that program in February 2014. He testified that the reason for his
Court of Appeals of Indiana | Memorandum Decision 03A04-1705-CR-1054 | September 29, 2017 Page 3 of 7 termination was that he had missed a therapy appointment. However, he also
admitted that he had been charged with four new offenses during his time in the
program, although he claimed those offenses were not the reason for his
termination. The offenses were one count of trespass, two counts of driving
with a suspended license, and one count of theft.
[7] Also at the sentencing hearing, Campbell admitted that he had a lifetime ban
from Wal-Mart and had attempted to steal a toy there in front of his three-year-
old child. He acknowledged that, in spite of the ban, Wal-Mart had “cut [him]
plenty of breaks” over the years by not calling the police when Wal-Mart
employees caught him stealing. (Tr. Vol. 2 at 20).
[8] At the conclusion of the hearing, the trial court sentenced Campbell to two and
one half (2½) years executed in the Department of Correction. The court found
that Campbell’s criminal history, which included thirty-four misdemeanor
convictions and thirteen felony convictions, was an aggravating factor, as was
the fact that he had been terminated from probation at least five times. The
court noted that fourteen of Campbell’s previous convictions were for theft, the
same offense he was convicted of here. The court also noted that Campbell had
previously been offered treatment, and could have pursued treatment on his
own, but he had not successfully completed treatment. The trial court did not
find any mitigating circumstances. Instead, the court concluded: “The
community needs to be protected from you for the maximum time of [sic] that
can be gained because you’re right, every time you go out, you just go steal
again.” (Tr. 29). Campbell now appeals.
Court of Appeals of Indiana | Memorandum Decision 03A04-1705-CR-1054 | September 29, 2017 Page 4 of 7 Decision [9] On appeal, Campbell argues that his sentence was inappropriate in light of the
nature of his offense and his character.
[10] We may revise a sentence under Appellate Rule 7(B) if it is inappropriate in
light of the nature of the offense and the character of the offender. Ind.
Appellate Rule 7(B). The defendant has the burden of persuading us that his
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
The principal role of a Rule 7(B) review “should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). “Appellate Rule 7(B) analysis is not to determine whether another
sentence is more appropriate but rather whether the sentence imposed is
inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal
quotation marks and citation omitted), reh’g denied. Whether a sentence is
inappropriate ultimately turns on “the culpability of the defendant, the severity
of the crime, the damage done to others, and a myriad of other factors that
come to light in a given case.” Cardwell, 895 N.E.2d at 1224.
[11] When determining whether a sentence is inappropriate, we acknowledge that
the advisory sentence “is the starting point the Legislature has selected as an
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any court except for the purpose of establishing Sep 29 2017, 11:27 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael P. DeArmitt Curtis T. Hill, Jr. Columbus, Indiana Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael Lee Campbell, September 29, 2017 Appellant-Defendant, Court of Appeals Case No. 03A04-1705-CR-1054 v. Appeal from the Bartholomew Circuit Court State of Indiana, The Honorable Kelly S. Benjamin, Appellee-Plaintiff. Judge Trial Court Cause No. 03C01-1610-F6-5903
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 03A04-1705-CR-1054 | September 29, 2017 Page 1 of 7 Statement of the Case [1] Michael L. Campbell (“Campbell”) appeals his sentence, which was imposed
following his guilty plea to Level 6 felony theft.1 He argues that his sentence
was inappropriate under Indiana Appellate Rule 7(B) in light of the nature of
his offense and his character. We conclude that his sentence was not
inappropriate and affirm the trial court.
[2] We affirm.
Issue Whether Campbell’s sentence was inappropriate in light of the nature of his offense and his character.
Facts [3] On October 28, 2016, the State charged Campbell with theft, which was
elevated to a Level 6 felony based on Campbell’s prior unrelated conviction for
theft. Two weeks later, the State charged him with another Level 6 felony theft
charge in another cause. On March 6, 2017, Campbell pled guilty to Level 6
felony theft in the instant cause in exchange for the State’s dismissal of the other
charge against him. The plea agreement left sentencing to the discretion of the
trial court.
1 IND. CODE § 35-43-4-2.
Court of Appeals of Indiana | Memorandum Decision 03A04-1705-CR-1054 | September 29, 2017 Page 2 of 7 [4] The trial court held a sentencing hearing on April 13, 2017. During the
hearing, Campbell admitted that he had stolen two Dyson Ball vacuum cleaners
from Wal-Mart, which he had hoped to sell for half price to get money for
drugs. He testified that he had been a heroin addict since he was eighteen years
old and had many previous convictions for theft because he kept stealing to
finance his drug addiction. He requested that the trial court impose a sentence
that would allow him to receive drug addiction treatment and have a slow
transition back to living on his own.
[5] The State introduced Campbell’s pre-sentence investigation report (“PSI”),
which indicated that Campbell had been convicted of forty-seven offenses since
1992—the equivalent of almost two convictions per year—and had been placed
on probation twenty-six times. The trial court counted sixty probation
violations in Campbell’s PSI, but Campbell argued that there had been only
nine separate petitions to revoke his probation. The trial court agreed that it
was not clear how many times Campbell had violated probation because some
of the violations listed in the PSI might have only been status hearings.
Nevertheless, the trial court concluded that, at a minimum, Campbell had
violated probation “numerous times.” (Tr. Vol. 2 at 24).
[6] With respect to Campbell’s request to receive drug treatment, Campbell
acknowledged that he had received an opportunity for drug treatment in 2007
and had failed to successfully complete that treatment. He also admitted that
he had been placed in a treatment program in June 2012 and been terminated
from that program in February 2014. He testified that the reason for his
Court of Appeals of Indiana | Memorandum Decision 03A04-1705-CR-1054 | September 29, 2017 Page 3 of 7 termination was that he had missed a therapy appointment. However, he also
admitted that he had been charged with four new offenses during his time in the
program, although he claimed those offenses were not the reason for his
termination. The offenses were one count of trespass, two counts of driving
with a suspended license, and one count of theft.
[7] Also at the sentencing hearing, Campbell admitted that he had a lifetime ban
from Wal-Mart and had attempted to steal a toy there in front of his three-year-
old child. He acknowledged that, in spite of the ban, Wal-Mart had “cut [him]
plenty of breaks” over the years by not calling the police when Wal-Mart
employees caught him stealing. (Tr. Vol. 2 at 20).
[8] At the conclusion of the hearing, the trial court sentenced Campbell to two and
one half (2½) years executed in the Department of Correction. The court found
that Campbell’s criminal history, which included thirty-four misdemeanor
convictions and thirteen felony convictions, was an aggravating factor, as was
the fact that he had been terminated from probation at least five times. The
court noted that fourteen of Campbell’s previous convictions were for theft, the
same offense he was convicted of here. The court also noted that Campbell had
previously been offered treatment, and could have pursued treatment on his
own, but he had not successfully completed treatment. The trial court did not
find any mitigating circumstances. Instead, the court concluded: “The
community needs to be protected from you for the maximum time of [sic] that
can be gained because you’re right, every time you go out, you just go steal
again.” (Tr. 29). Campbell now appeals.
Court of Appeals of Indiana | Memorandum Decision 03A04-1705-CR-1054 | September 29, 2017 Page 4 of 7 Decision [9] On appeal, Campbell argues that his sentence was inappropriate in light of the
nature of his offense and his character.
[10] We may revise a sentence under Appellate Rule 7(B) if it is inappropriate in
light of the nature of the offense and the character of the offender. Ind.
Appellate Rule 7(B). The defendant has the burden of persuading us that his
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
The principal role of a Rule 7(B) review “should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). “Appellate Rule 7(B) analysis is not to determine whether another
sentence is more appropriate but rather whether the sentence imposed is
inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal
quotation marks and citation omitted), reh’g denied. Whether a sentence is
inappropriate ultimately turns on “the culpability of the defendant, the severity
of the crime, the damage done to others, and a myriad of other factors that
come to light in a given case.” Cardwell, 895 N.E.2d at 1224.
[11] When determining whether a sentence is inappropriate, we acknowledge that
the advisory sentence “is the starting point the Legislature has selected as an
appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.
Campbell was convicted of a Level 6 felony, which carries a sentencing range of
Court of Appeals of Indiana | Memorandum Decision 03A04-1705-CR-1054 | September 29, 2017 Page 5 of 7 six (6) months to two and one-half (2½) years, with an advisory sentence of one
(1) year. Accordingly, Campbell received the maximum sentence possible for
his Level 6 felony conviction.
[12] Our review of the nature of Campbell’s offense reveals that he stole two
vacuum cleaners from Walmart totaling $329.02. He argues that the amount he
stole was not egregious because the threshold amount to be charged with a
Level 6 felony is seven hundred fifty dollars ($750). See I.C. § 35-43-4-2(a)(1).
However, he was charged with a Level 6 felony because he had a “prior
unrelated conviction” for theft, so the level of his offense was not dependent on
the amount of merchandise he stole. See id.
[13] Regardless of the nature of Campbell’s offense, we conclude that his sentence
was not inappropriate in light of his character. See Sanders v. State, 71 N.E.3d
839, 843 (Ind. Ct. App. 2017) (noting that Rule 7(B) “plainly requires” that the
appellant demonstrate that his sentence in inappropriate in light of “both the
nature of the offense[] and his character”) (emphasis in original), trans. denied.
As the trial court summarized, Campbell has forty-seven prior convictions,
including fourteen convictions for theft, which is the same offense as his
underlying conviction in the instant cause. He has stolen from Wal-Mart so
many times that he has a lifetime ban from Wal-Mart. Additionally, he admits
that his convictions do not reflect all the times that he has committed theft as
Wal-Mart has “cut [him] plenty of breaks” over the years by not calling the
police when he has been caught stealing. (Tr. Vol. 2 at 20). This egregious
criminal history demonstrates that Campbell has no respect for the law or for
Court of Appeals of Indiana | Memorandum Decision 03A04-1705-CR-1054 | September 29, 2017 Page 6 of 7 others’ property. Likewise, he has multiple convictions for escape and failure to
return to lawful detention, which also demonstrate his lack of respect for the
law.
[14] Campbell acknowledges that he has a significant criminal history but argues
that his sentence should be rehabilitative rather than punitive and, thus, the trial
court should have sentenced him to community corrections so that he could
receive drug addiction treatment and transition slowly back to the community.
We are not persuaded by this argument as Campbell was offered drug abuse
treatment in the past and did not take advantage of those treatment
opportunities. Instead, he has been terminated from every drug treatment
program in which he has participated. Further, we have long held that
“[p]lacement on probation or in a community corrections program is a matter
of grace and not a right.” Johnson v. State, 62 N.E.3d 1224, 1229 (Ind. Ct. App.
2016). The trial court has granted Campbell leniency and placed him on
probation twenty-six times in the past. Campbell’s repeated violations of those
placements on probation indicate that further leniency is not likely to cause him
to reform.
[15] In light of the above factors regarding the nature of Campbell’s offense and his
character, we conclude that his sentence was not inappropriate.
[16] Affirmed.
Riley, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 03A04-1705-CR-1054 | September 29, 2017 Page 7 of 7