Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANDREW ADAMS GREGORY F. ZOELLER Jeffersonville, Indiana Attorney General of Indiana
ERIC P. BABBS Deputy Attorney General Indianapolis, Indiana FILED Dec 14 2012, 9:17 am IN THE CLERK COURT OF APPEALS OF INDIANA of the supreme court, court of appeals and tax court
MILES A. PARKER, ) ) Appellant-Defendant, ) ) vs. ) No. 22A01-1204-CR-151 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE FLOYD SUPERIOR COURT The Honorable Maria D. Granger, Judge Cause No. 22D03-1001-FB-214
December 14, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge Miles A. Parker appeals the sentence imposed in connection with his convictions
for three counts of burglary,1 each as a Class B felony, two counts of attempted burglary,2
each as a Class B felony, and one count of burglary3 as a Class C felony. On appeal,
Parker contends that his twenty-year aggregate sentence is inappropriate in light of the
nature of the offenses and the character of the offender.
We affirm.
FACTS AND PROCEDURAL HISTORY4
Between December 23, 2009 and December 29, 2009, Parker, who was twenty
years old at the time, drove two juveniles throughout Floyd County, Indiana, to engage in
the burglary of or attempted burglary of a shed and six residences. 5 Included among the
items stolen were firearms, a flat-screen television, jewelry, a camera, iTunes gift cards,
Christmas presents, and musical instruments. Parker and the two juveniles divided the
stolen items among the three of them. Appellant’s App. B at 18-19.
After the burglaries, one of the victims contacted the issuer of the now-stolen
iTunes gift cards and learned that they were registered in Parker’s name. Id. at 17. Floyd 1 See Ind. Code § 35-43-2-1. 2 See Ind. Code § 35-41-5-1; Ind. Code § 35-43-2-1. 3 See Ind. Code § 35-43-2-1. 4 We remind defense counsel of Appellate Rule 46(A)(6); a rule that requires an appellant’s brief to have a statement of facts section that contains only relevant facts “stated in accordance with the standard of review appropriate to the judgment or order being appealed.” “In a criminal appeal, the State is entitled to the most favorable interpretation of the evidence and all inferences reasonably received therefrom.” Payne v. State, 687 N.E.2d 252, 254 (Ind. Ct. App. 1997). We note that, by setting forth as fact that Parker’s participation in these crimes was “forced,” a contention argued at trial but not a fact found by the trial court, defense counsel has failed to comply with Appellate Rule 46(A)(6). 5 Defense counsel has not provided a copy of the trial transcript; therefore, like the State, we use the facts recited in the probable cause affidavit and as adduced at Parker’s sentencing hearing.
2 County police investigated Parker, and thereafter, investigated the two juveniles. During
a consensual search of Parker’s bedroom, police found items that had been stolen during
the burglaries. Id. at 18.
On January 27, 2010, the State charged Parker with twelve felony counts relating
to these crimes. A jury trial was held in January 2012, after which Parker was found
guilty of the following ten counts—three counts of Class B felony burglary, two counts
of Class B felony attempted burglary, one count of Class C felony burglary, and four
counts of Class D felony theft, which related to four of the burglary counts. Prior to
sentencing, the trial court merged the four theft convictions into their corresponding
burglary convictions and vacated the theft convictions due to double jeopardy concerns.
During a March 5, 2012 sentencing hearing, the trial court considered the
following factors. First, the trial court noted Parker’s criminal history. In 2008, Parker
was convicted of four counts of conversion, each as a Class A misdemeanor, but two
counts of which were originally charged as felonies and reduced to misdemeanors at
sentencing. Appellant’s App. B at 5-6. While no juvenile history was found, Parker
admitted to having served six months on probation for shoplifting as a juvenile. Tr. at 32,
34. At sentencing, the State introduced evidence of uncharged criminal conduct by
Parker; namely, that in the same month as the instant crimes, Parker and another
individual attempted to break into thirty to forty cars parked in various apartment
complexes. Id. at 23-25. Although Parker stole property from at least one of those cars,
he was not charged with any crime; instead, he became a confidential informant. Id. at
24-27, 30.
3 The trial court identified as an aggravating factor that multiple victims’ homes
were targeted around Christmas, and the homes were targeted during the early morning
hours. Id. at 76-77. The trial court found that Parker was “familiar and knowledgeable
about the [targeted] areas.” Id. at 77. The court also found as aggravating factors that
Parker committed the crimes in the presence of the two juveniles, that his criminal history
had “escalated” from shoplifting and misdemeanor conversion to multiple residential
burglaries, that the uncharged car break-ins were “similar” in nature to the burglaries, and
that Parker’s criminal history deserved “significant weight.” Id. at 77-78.
The court gave mitigating weight to Parker’s actions in alerting detectives to the
location of stolen items and thus assisting in the making of restitution, and gave moderate
mitigating weight to the remorse Parker showed. Id. at 78-79. However, the trial court
specifically rejected Parker’s age and his mental health as mitigating factors, and found
that Parker’s role in the burglaries compared to the two juveniles did not deserve any
mitigating weight because he was not only the driver but was also “the one who knew
where to go.” Id. at 78-79.
The trial court sentenced Parker as follows: on Count 3, Class B felony attempted
burglary, to 2190 days (“six years”) with 730 days (“two years”) suspended; on Count 4,
Class B felony burglary, to six years with two years suspended; on Count 6, Class B
felony attempted burglary, to six years with two years suspended; on Count 7, Class B
felony burglary, to six years with two years suspended; on Count 9, Class B felony
burglary, to six years with no time suspended; and on Count 11, Class C felony burglary,
to two years with no time suspended. Appellant’s App. A at 17-18. The trial court
4 ordered the sentences on Counts 3 and 4 to be served concurrently, and the sentences on
Counts 6 and 7 to be served concurrently. Id. But those pairings and the sentences on the
remaining counts were ordered to be served consecutively, for an aggregate sentence of
twenty years, with sixteen years executed and four years suspended to probation. Id.
Parker now appeals his sentence.
DISCUSSION AND DECISION
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANDREW ADAMS GREGORY F. ZOELLER Jeffersonville, Indiana Attorney General of Indiana
ERIC P. BABBS Deputy Attorney General Indianapolis, Indiana FILED Dec 14 2012, 9:17 am IN THE CLERK COURT OF APPEALS OF INDIANA of the supreme court, court of appeals and tax court
MILES A. PARKER, ) ) Appellant-Defendant, ) ) vs. ) No. 22A01-1204-CR-151 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE FLOYD SUPERIOR COURT The Honorable Maria D. Granger, Judge Cause No. 22D03-1001-FB-214
December 14, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge Miles A. Parker appeals the sentence imposed in connection with his convictions
for three counts of burglary,1 each as a Class B felony, two counts of attempted burglary,2
each as a Class B felony, and one count of burglary3 as a Class C felony. On appeal,
Parker contends that his twenty-year aggregate sentence is inappropriate in light of the
nature of the offenses and the character of the offender.
We affirm.
FACTS AND PROCEDURAL HISTORY4
Between December 23, 2009 and December 29, 2009, Parker, who was twenty
years old at the time, drove two juveniles throughout Floyd County, Indiana, to engage in
the burglary of or attempted burglary of a shed and six residences. 5 Included among the
items stolen were firearms, a flat-screen television, jewelry, a camera, iTunes gift cards,
Christmas presents, and musical instruments. Parker and the two juveniles divided the
stolen items among the three of them. Appellant’s App. B at 18-19.
After the burglaries, one of the victims contacted the issuer of the now-stolen
iTunes gift cards and learned that they were registered in Parker’s name. Id. at 17. Floyd 1 See Ind. Code § 35-43-2-1. 2 See Ind. Code § 35-41-5-1; Ind. Code § 35-43-2-1. 3 See Ind. Code § 35-43-2-1. 4 We remind defense counsel of Appellate Rule 46(A)(6); a rule that requires an appellant’s brief to have a statement of facts section that contains only relevant facts “stated in accordance with the standard of review appropriate to the judgment or order being appealed.” “In a criminal appeal, the State is entitled to the most favorable interpretation of the evidence and all inferences reasonably received therefrom.” Payne v. State, 687 N.E.2d 252, 254 (Ind. Ct. App. 1997). We note that, by setting forth as fact that Parker’s participation in these crimes was “forced,” a contention argued at trial but not a fact found by the trial court, defense counsel has failed to comply with Appellate Rule 46(A)(6). 5 Defense counsel has not provided a copy of the trial transcript; therefore, like the State, we use the facts recited in the probable cause affidavit and as adduced at Parker’s sentencing hearing.
2 County police investigated Parker, and thereafter, investigated the two juveniles. During
a consensual search of Parker’s bedroom, police found items that had been stolen during
the burglaries. Id. at 18.
On January 27, 2010, the State charged Parker with twelve felony counts relating
to these crimes. A jury trial was held in January 2012, after which Parker was found
guilty of the following ten counts—three counts of Class B felony burglary, two counts
of Class B felony attempted burglary, one count of Class C felony burglary, and four
counts of Class D felony theft, which related to four of the burglary counts. Prior to
sentencing, the trial court merged the four theft convictions into their corresponding
burglary convictions and vacated the theft convictions due to double jeopardy concerns.
During a March 5, 2012 sentencing hearing, the trial court considered the
following factors. First, the trial court noted Parker’s criminal history. In 2008, Parker
was convicted of four counts of conversion, each as a Class A misdemeanor, but two
counts of which were originally charged as felonies and reduced to misdemeanors at
sentencing. Appellant’s App. B at 5-6. While no juvenile history was found, Parker
admitted to having served six months on probation for shoplifting as a juvenile. Tr. at 32,
34. At sentencing, the State introduced evidence of uncharged criminal conduct by
Parker; namely, that in the same month as the instant crimes, Parker and another
individual attempted to break into thirty to forty cars parked in various apartment
complexes. Id. at 23-25. Although Parker stole property from at least one of those cars,
he was not charged with any crime; instead, he became a confidential informant. Id. at
24-27, 30.
3 The trial court identified as an aggravating factor that multiple victims’ homes
were targeted around Christmas, and the homes were targeted during the early morning
hours. Id. at 76-77. The trial court found that Parker was “familiar and knowledgeable
about the [targeted] areas.” Id. at 77. The court also found as aggravating factors that
Parker committed the crimes in the presence of the two juveniles, that his criminal history
had “escalated” from shoplifting and misdemeanor conversion to multiple residential
burglaries, that the uncharged car break-ins were “similar” in nature to the burglaries, and
that Parker’s criminal history deserved “significant weight.” Id. at 77-78.
The court gave mitigating weight to Parker’s actions in alerting detectives to the
location of stolen items and thus assisting in the making of restitution, and gave moderate
mitigating weight to the remorse Parker showed. Id. at 78-79. However, the trial court
specifically rejected Parker’s age and his mental health as mitigating factors, and found
that Parker’s role in the burglaries compared to the two juveniles did not deserve any
mitigating weight because he was not only the driver but was also “the one who knew
where to go.” Id. at 78-79.
The trial court sentenced Parker as follows: on Count 3, Class B felony attempted
burglary, to 2190 days (“six years”) with 730 days (“two years”) suspended; on Count 4,
Class B felony burglary, to six years with two years suspended; on Count 6, Class B
felony attempted burglary, to six years with two years suspended; on Count 7, Class B
felony burglary, to six years with two years suspended; on Count 9, Class B felony
burglary, to six years with no time suspended; and on Count 11, Class C felony burglary,
to two years with no time suspended. Appellant’s App. A at 17-18. The trial court
4 ordered the sentences on Counts 3 and 4 to be served concurrently, and the sentences on
Counts 6 and 7 to be served concurrently. Id. But those pairings and the sentences on the
remaining counts were ordered to be served consecutively, for an aggregate sentence of
twenty years, with sixteen years executed and four years suspended to probation. Id.
Parker now appeals his sentence.
DISCUSSION AND DECISION
“This court has authority to revise a sentence ‘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.’” Spitler v. State, 908 N.E.2d 694,
696 (Ind. Ct. App. 2009) (quoting Ind. Appellate Rule 7(B)), trans. denied. “Although
Indiana Appellate Rule 7(B) does not require us to be ‘extremely’ deferential to a trial
court’s sentencing decision, we still must give due consideration to that decision.”
Patterson v. State, 909 N.E.2d 1058, 1062-63 (Ind. Ct. App. 2009) (quoting Rutherford v.
State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007)). We understand and recognize the
unique perspective a trial court brings to its sentencing decisions. Id. at 1063. The
defendant bears the burden of persuading this court that his sentence is inappropriate. Id.
Here, the trial court imposed a sentence of twenty years for five Class B felony
convictions and one Class C felony conviction, of which four years were suspended.
While not strictly a claim under Appellate Rule 7(B), Parker first contends that his
twenty-year sentence is inappropriate because Counts 6, 7, 9, and 11, the crimes
committed on December 29, 2009, were an “episode of criminal conduct,” and as such
should have been ordered to be served concurrently. We disagree.
5 Indiana Code section 35-50-1-2(b) defines the term “episode of criminal conduct”
as “offenses or a connected series of offenses that are closely related in time, place, and
circumstance.” This section does not apply, however, because “crimes of violence,” like
burglary as a Class B felony, are not covered by this section. Ind. Code § 35-50-1-
2(a)(13). Notwithstanding its inapplicability, even if this statute were to apply to the
instant case, it would have no impact on Parker’s sentence. Indiana Code section 35-50-
1-2(c) restricts a trial court’s discretion in sentencing so that
the total of the consecutive terms of imprisonment, exclusive of terms of imprisonment under IC 35-50-2-8 [habitual offenders] and IC 35-50-2-10 [habitual substance offenders], to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the advisory sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted.
Here, a Class A felony is one class higher than the most serious felony for which Parker
was convicted. The advisory sentence for a Class A felony is thirty years. Ind. Code §
35-50-2-4. Parker’s entire sentence for five Class B felonies and one Class C felony was
twenty years. Parker’s sentence does not violate Indiana Code section 35-50-1-2;
therefore, that section provides no support for Parker’s claim that his sentence is
inappropriate.
Parker maintains that his sentence is inappropriate in light of the nature of the
offenses because this was not the worst example of such offenses, e.g., no victim was
seriously harmed or threatened during the commission of the crimes. Additionally, as the
driver and not the person entering the building, Parker argues that his involvement was of
a lesser nature. We disagree. Parker participated in residential burglaries and attempted
6 burglaries that targeted no fewer than six victims on two separate days during the holiday
season when he knew homes would contain presents. The fact that no one was injured
goes less to the nature of the offenses and more to the fact that Parker and the juveniles
were lucky. Furthermore, Parker was no less involved than his partners in crime because
he was the one who knew which homes to target and drove the two juveniles to the
various locations to commit the crimes.
“Regarding the nature of the offense, the advisory sentence is the starting point our
legislature has selected as an appropriate sentence for the crime committed.” Richardson
v. State, 906 N.E.2d 241, 247 (Ind. Ct. App. 2009). The sentencing range for a Class B
felony is between six and twenty years, with an advisory sentence of ten years. Ind. Code
§ 35-50-2-5. The sentencing range for a Class C felony is between two and eight years,
with an advisory sentence of four years. Ind. Code § 35-50-2-6. Here, the trial court
imposed twenty years; the same sentence that would have been imposed if the trial court
had sentenced Parker to the advisory term for one Class B felony on each of the two days
on which crimes were committee and ordered those sentences to run consecutively.
Parker has failed to persuade us that his sentence is inappropriate in light of the nature of
his offenses.
Parker next contends that his sentence was inappropriate in light of the character
of the offender. Parker continues to argue that he did not commit the crimes willingly.
The jury discounted this argument when it found Parker guilty of ten felonies. During
sentencing the trial court found that Parker’s criminal history has escalated from
shoplifting and misdemeanor conversion to multiple residential burglaries, that the
7 uncharged car break-ins were “similar” in nature to the burglaries, and that Parker’s
criminal history deserved “significant weight” Id. at 77-78. Parker has also failed to
persuade us that his sentence is inappropriate in light of his character.
Affirmed.
NAJAM, J., and MAY, J., concur.