Terry Tripp v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 10, 2020
• Docket: 20A-CR-1017
• 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 Sep 10 2020, 8:10 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 Lisa M. Johnson Curtis T. Hill, Jr. Brownsburg, Indiana Attorney General of Indiana Courtney Staton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Terry Tripp, September 10, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-1017 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Mark T. Appellee-Plaintiff Rothenberg, Judge Trial Court Cause No. 49G02-1808-F4-28855

Baker, Senior Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1017 | September 10, 2020 Page 1 of 6 [1] Terry Tripp appeals the sentence imposed by the trial court after Tripp pleaded

guilty to Level 5 felony burglary and admitted to being an habitual offender.

Tripp argues that the sentence imposed by the trial court is inappropriate in

light of the nature of the offense and his character. Finding that the sentence is

not inappropriate, we affirm.

Facts [2] On August 28, 2018, Tripp burglarized Dennis Taylor’s home. Tripp ensured

that no one was home by knocking on the door multiple times. Then he kicked

open the door and entered. A neighbor called 911. Once inside, Tripp

collected tools and other items and stacked them near the front door to steal.

Police officers arrived and arrested Tripp. Taylor later confirmed that he did

not know Tripp and had not given him permission to enter the residence.

[3] On August 29, 2018, the State charged Tripp with Level 4 felony burglary and

Class A misdemeanor attempted theft. The State later amended the charging

information to reduce the burglary charge to a Level 5 felony. On December 6,

2018, Tripp agreed to plead guilty to Level 5 felony attempted burglary and to

admit to being an habitual offender in exchange for the dismissal of the

attempted theft count.

[4] On December 21, 2018, the trial court imposed an aggregate ten-year sentence.

Tripp appealed, and this Court remanded so that the trial court could clarify the

sentence. Tripp v. State, No. 19A-CR-198 (Ind. Ct. App. Sept. 30, 2019).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1017 | September 10, 2020 Page 2 of 6 [5] On remand, the trial court held a new sentencing hearing on December 13,

2019. The trial court imposed a sentence of six years for burglary, with four

years suspended to probation and two years executed, and enhanced that

sentence by four years for Tripp’s habitual offender status. Thus, Tripp’s

aggregate sentence is ten years, with six years executed and four years

suspended. Tripp now appeals.

Discussion and Decision [6] Tripp argues that the sentence imposed by the trial court is inappropriate in

light of the nature of the offense and his character pursuant to Indiana

Appellate Rule 7(B). We must “conduct [this] review with substantial

deference and give ‘due consideration’ to the trial court’s decision—since the

‘principal role of [our] review is to attempt to leaven the outliers,’ and not to

achieve a perceived ‘correct’ sentence.” Knapp v. State, 9 N.E.3d 1274, 1292

(Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013))

(internal citations omitted).

[7] Tripp pleaded guilty to a Level 5 felony, for which he faced a sentence of one to

six years, with an advisory term of three years. Ind. Code § 35-50-2-6(b). The

trial court imposed the maximum six-year term but ordered that four of those

years be suspended to probation. Tripp also admitted to being an habitual

offender, meaning that he faced a fixed, nonsuspendible sentence enhancement

of two to six years imprisonment. I.C. § 35-50-2-8(i). The trial court enhanced

the underlying sentence by four years for Tripp’s habitual offender status.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1017 | September 10, 2020 Page 3 of 6 Therefore, Tripp received an aggregate ten-year sentence, with four of those

years suspended to probation.

[8] With respect to the nature of the offense, Tripp went to the home of a person he

did not know, ensured no one was there, kicked in the front door, entered, and

prepared to take items from inside. The only reason he did not actually take the

items was because a neighbor had seen him entering the residence and called

911.

[9] With respect to Tripp’s character, we note that he has a lengthy and relevant

criminal history. He has been arrested eleven times and amassed two

misdemeanor and seven felony convictions. This is his fifth burglary

conviction. All his offenses appear to be drug-related or property-related—and

he admits that the property-related offenses were intended to support his drug

habit. He has had the benefit of community supervision, suspended sentences,

short prison sentences, and longer prison sentences. He has violated probation

multiple times.

[10] We must also note that Tripp (who was forty-three at the time of the second

sentencing hearing) has had a very difficult life, dating back to childhood. His

parents were both addicts and he shuffled between the homes of relatives for

most of his young life. He experienced poverty and mental, physical, and

sexual abuse. He has been diagnosed with multiple mental illnesses, including

post-traumatic stress disorder, major depressive disorder, anxiety, and bipolar

disorder. He has been suicidal at times and has attempted suicide at least twice.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1017 | September 10, 2020 Page 4 of 6 [11] He began drinking alcohol and smoking marijuana on a regular basis when he

was thirteen. He began using cocaine in his early twenties, and eventually

replaced cocaine with heroin and methamphetamine. At the time of the instant

offense, he was homeless and struggling to pay his bills or find enough money

for food. He has not voluntarily sought out treatment for his substance abuse

issues and has only attended drug treatment twice—both times, treatment was

court-ordered.

[12] Tripp pleaded guilty and, though he received a benefit for his guilty plea—the

dismissal of the Class A misdemeanor attempted theft charge—it was not a

substantial one. He has expressed genuine remorse and takes full responsibility

for his actions.

[13] The trial court imposed an aggregate ten-year sentence, which includes a

maximum six-year term for the burglary conviction. Given this record, a more

lenient sentence would have been appropriate. But that does not render this

sentence inappropriate, particularly given that four of the ten years are

suspended to probation. Furthermore, the trial court recommended Tripp for

the Purposeful Incarceration program and indicated that it would consider

modifying a portion of Tripp’s sentence if he successfully completed the

program. Under these circumstances, we find that the sentence is not

inappropriate in light of the nature of the offense and Tripp’s character.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1017 | September 10, 2020 Page 5 of 6 [14] The judgment of the trial court is affirmed.

Bailey, J., and Vaidik, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1017 | September 10, 2020 Page 6 of 6