Robert M. Rogers v. State of Indiana (mem. dec.) ( 2020 )

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).
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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.
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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.
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[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.
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