Robert M. Rogers v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 28, 2020
• Docket: 20A-CR-455
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 28 2020, 8:19 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald E.C. Leicht Curtis T. Hill, Jr. Peru, Indiana Attorney General of Indiana Samuel J. Dayton Deputy Attorney General Alexandria Sons Certified Legal Intern Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert M. Rogers, August 28, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-455 v. Appeal from the Howard Superior Court State of Indiana, The Honorable Hans S. Pate, Appellee-Plaintiff. Judge Trial Court Cause No. 34D04-1901-F4-110

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-455 | August 28, 2020 Page 1 of 6 Case Summary [1] Robert M. Rogers (“Rogers”) pled guilty to Possession of a Firearm by a

Serious Violent Felon, a Level 4 felony.1 He was sentenced to twelve years

imprisonment, with three years suspended. He presents the sole issue of

whether his sentence is inappropriate. We affirm.

Facts and Procedural History [2] On January 6, 2019, Kokomo Police Officers Andrew Grammer (“Officer

Grammer”) and Graham Dennis (“Officer Dennis”) were on patrol together

when they observed a vehicle make a turn without proper use of a turn signal.

Officer Grammer activated his lights and siren to initiate a vehicle stop. As the

officers followed behind the vehicle, they observed the passenger, later

identified as Rogers, move about and reach toward the floorboard. The

pursued vehicle came to an abrupt stop, then Rogers exited and took off

running.

[3] The officers gave chase, and Officer Grammer deployed his Taser twice but it

did not connect with Rogers. Officer Grammer observed Rogers reach toward

his waistband, remove his right hand from the waistband area, and turn his

body back and to the left. Concerned that Rogers was armed with a handgun,

Officer Grammer decided to use deadly force. He threw down the Taser and

1 Ind. Code § 35-47-4-5(c).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-455 | August 28, 2020 Page 2 of 6 drew his Glock 17 handgun. At that moment, Rogers fell. No shots were fired.

Rogers jumped up and took off running again. He was later found hiding in a

nearby shed. Officer Dennis returned to the area where Rogers had fallen and

found a Smith & Wesson handgun with one live round of ammunition, together

with a magazine with fourteen live 9 mm rounds.

[4] On January 11, 2019, Rogers was charged with Possession of a Firearm by a

Serious Violent Felon, Possession of a Syringe, a Level 6 felony,2 and Resisting

Law Enforcement, as a Level 6 felony.3 Rogers and the State reached a plea

bargain whereby Rogers would plead guilty to the firearm possession count and

his executed term of imprisonment in the Indiana Department of Correction

(“the DOC”) would be capped at nine years. On January 15, 2020, Rogers pled

guilty to the firearm possession charge, stipulating to the accuracy of the facts

stated in the probable cause affidavit.

[5] On February 14, 2020, the trial court sentenced Rogers to twelve years

imprisonment and suspended three years to probation, such that Rogers’s term

of imprisonment in the DOC was capped at nine years. The trial court

recommended to the DOC that Rogers be permitted to participate in the

Purposeful Incarceration program, and specified in the sentencing order that

2 I.C. § 16-42-19-18. 3 I.C. § 35-44.1-3-1.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-455 | August 28, 2020 Page 3 of 6 Rogers could, upon completion of that program, petition for a sentence

modification. Rogers now appeals.

Discussion and Decision [6] Rogers contends that his sentence is inappropriate. He argues that his criminal

activity stems from his history of substance abuse and his rehabilitation could

be achieved in less than nine years in the DOC.

[7] Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent

appellate review and revision of a sentence imposed by a trial court. See, e.g.,

Sanders v. State, 71 N.E.3d 839, 843 (Ind. Ct. App. 2017), trans. denied. This

appellate authority is embodied in Indiana Appellate Rule 7(B). Id. Under

7(B), the appellant must demonstrate that his sentence is inappropriate in light

of the nature of his offense and his character. Id. (citing Ind. Appellate Rule

7(B)). In these instances, deference to the trial courts “should prevail 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).

[8] The Indiana Supreme Court has explained that the principal role of appellate

review is an attempt to leaven the outliers, “not to achieve a perceived ‘correct’

result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). The

question is not whether another sentence is more appropriate, but whether the

Court of Appeals of Indiana | Memorandum Decision 20A-CR-455 | August 28, 2020 Page 4 of 6 sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct.

App. 2008).

[9] A defendant convicted of a Level 4 felony is subject to a sentencing range of

two to twelve years, with an advisory sentence of six years. I.C. § 35-50-2-5.5.

Rogers received a twelve-year sentence, with three years suspended. Upon the

review of sentence appropriateness under Appellate Rule 7, appellate courts

may consider all aspects of the penal consequences imposed by the trial judge in

sentencing the defendant, including suspension. Davidson v. State, 926 N.E.2d

1023, 1025 (Ind. 2010).

[10] We first look to the nature of the offense. Rogers did not simply possess a

weapon without risk of danger to others. Rather, he fled on foot while armed

with a handgun with a live round inside. He appeared to be pointing the

weapon directly at Officer Grammar, causing the officer to fear that Rogers was

ready to fire upon him. The handgun was found abandoned with a magazine

with an additional fourteen live rounds of ammunition.

[11] Next, we consider the defendant’s character. Rogers has an extensive criminal

history beginning at age eighteen. He has eight felony and ten misdemeanor

convictions. These include two firearm offenses and four batteries. Rogers has

five probation violations and two violations of in-home detention conditions.

One violation involved Rogers cutting off his ankle monitor after serving

eighteen days in home detention. He was in home detention placement at the

time he committed the instant offense.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-455 | August 28, 2020 Page 5 of 6 [12] Neither the evidence of the nature of the offense nor the evidence of Rogers’s

character militates toward a lesser sentence. In sum, Rogers has failed to

persuade us that his sentence is inappropriate.

Conclusion [13] The sentence imposed upon Rogers is not inappropriate.

[14] Affirmed.

Vaidik, J., and Baker, Sr. J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-455 | August 28, 2020 Page 6 of 6