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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: JAY RODIA Indianapolis, Indiana ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana TIFFANY N. ROMINE Deputy Attorney General Indianapolis, Indiana

FILED
Apr 03 2009, 9:14 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
DANIEL SMITH, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

CLERK

No. 49A05-0807-CR-433

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Patricia Gifford, Judge The Honorable Steven Rubick, Commissioner Cause Nos. 49G04-0803-FB-54373 49G04-0803-FB-54375

April 3, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issue

Following a guilty plea, Daniel Smith was convicted of two counts of robbery, both Class B felonies. The plea agreement provided for open sentencing with a cap of eight years on the initial executed portion of the sentence and any additional time to be suspended to probation. The trial court sentenced Smith to ten years for each robbery conviction, with two years of each sentence suspended to probation and the sentences to be served concurrently. Smith raises one issue on appeal: whether his sentence is

inappropriate in light of the nature of the offenses and his character. Concluding that the sentence is not inappropriate, we affirm. Facts and Procedural History On March 1, 2008, Smith and his co-defendant went to the home of Kem Moore, asked to use his cell phone, and then demanded money while brandishing a knife. They then stole Moore's laptop. Two days later, Smith asked to use Evan Straitor's cell phone. Straitor produced the phone, but when Smith did not make a call, he asked for the phone back. Smith then brandished a handgun and took the cell phone. The State charged Smith with two counts of robbery, both Class B felonies.1 Smith pled guilty to both counts pursuant to a plea agreement. The agreement provided as follows: "Open sentencing, with a cap of 8 years on the initial executed portion of the sentence. The Court may impose additional time beyond those 8 years, suspend that time, and place the Defendant on probation." Appellant's Appendix at 32.

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The charges were filed under two separate cause numbers but were disposed of in a single proceeding.

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At the sentencing hearing, the trial court found as mitigating factors that Smith had accepted responsibility for his acts, was nineteen years old, self-reported his previous substance abuse, and there could be a hardship on a child to be born to Smith's girlfriend. The court also found as an aggravating factor that Smith has a "terrible" juvenile record consisting of two felony and one misdemeanor true findings. Transcript at 20. Smith was adjudicated delinquent for offenses that would be burglary, a Class B felony; auto theft, a Class D felony; and criminal mischief, a Class B misdemeanor if committed by an adult.2 The trial court sentenced Smith to two concurrent ten-year terms with eight years executed and two years suspended to probation. Smith now appeals. Decision and Discussion I. Standard of Review An appellate court "may revise a sentence authorized by statute 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." Ind. Appellate Rule 7(B). When determining whether a sentence is inappropriate, we

recognize that the advisory sentence "is the starting point the Legislature has selected as an appropriate sentence for the crime committed." Weiss v. State, 848 N.E.2d 1070, 1072 (Ind. 2006). "[A] defendant must persuade the appellate court that his or her sentence has met this inappropriateness standard of review." Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

The State incorrectly asserts in its brief that the true finding of criminal mischief was a Class B felony conviction. In fact, it was a Class B misdemeanor.

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II. Appropriateness of the Sentence In the Indiana sentencing scheme, the legislature has set a minimum and maximum sentence for each class of crime, and it has determined an advisory sentence to be used as a starting point. Anglemyer v. State, 868 N.E.2d 482, 488 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007). For a Class B felony conviction, at issue here, the statute authorizes a sentence between six and twenty years, with an advisory sentence of ten years. Ind. Code

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