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 : DONALD C. SWANSON, JR. GREGORY F. ZOELLER Fort Wayne, Indiana Attorney General of Indiana
BRIAN REITZ Deputy Attorney General Indianapolis, Indiana



## IN THE COURT O F APPEALS OF INDIANA

KENT W. CARTER, ) ) Appellant

- Defendant, ) ) vs. ) No. 02A03

- 1203

- CR

- 108 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Wendy W. Davis, Judge Cause No. 02D06

- 1110

- FD

- 1365

August 2, 2012
MEMORANDUM DECISION
- NOT FOR PUBLICATION VAIDIK, Judge2 Case Summary Kent W. Carter appeals his two

- year sentence for Class D felony failure to return
to lawful detention. He contends that his sentence is inappropriate in ligh t of the nature of the offense and his character. Because Carter has failed to persuade us that his sentence is inappropriate in light of the nature of the offense and his character, we affirm. Facts and Procedural History After pleading guilty in 2011 t o two counts of Class D felony theft, Carter was placed in the Allen County Work Release program. On September 23, 2011, Carter
received approv al to go to his place of employment, Hoosier Pride Plastics, from 6:30 a.m. to 7:30 p.m. Carter did not return to the Allen County Work Release C enter by 7:30

p.m ., as he was required to do. Instead , he returned some time the following day. As a result, the State charged Carter with Class D felony failure to return to lawful detention. In February 2012, Carter p led guilty to failure to return to lawful detention. The trial
court sentenced Ca r ter to two years in the Department of Correction. Carter now appeals.
Discussion and Decision
Carter contends that his two

- year sentence is inappropriate in light of the nature of
the offense and his character. 1 We disagree.

1 Carter frames his argument solely as whether his sentence is inappropriate. See Ap p ellant’s Br. p. 1, 3. However, because Carter references aggravat ors and mitigators in closing, t he State construes Carter ’ s argument as including the contention that the trial court abused its discretion by failing to consider certain mi tigators

. To the extent that Carter’s a rgument contains this assertion, we observe that whether a trial court has abused its discretion by improperly recognizing aggravators and mitigators when sentencing a defendant and whether a defendant’s sentence is inappropriate under Indiana Appellate Ru le 7(B) are two distinct analyses. King v. State , 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Because Carter frames his argument as one made under Indiana Appellate Rule 7(B), we so confine our discussion.3

Although a trial court may have acted within its lawful discretion in imposing a sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent appellate review and revision of sentences through Indiana Appellate Rule 7(B), which provides that a 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.” Reid
v. State , 876 N.E.2d 1114, 1116 (Ind. 2007) (citing Anglemyer v. State , 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g , 875 N.E.2d 218 (Ind. 2007)). The defendant has the burden of persuading u s that his sentence is inappropriate. Id. (citing Childress v. State , 848 N.E.2d 1073, 1080 (Ind. 2006)). The principal role of Rule 7(B) review “should be to attempt to leaven the outliers, and identify some guiding principles for trial courts and thos e charged with improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State , 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest

— the aggregate sentence

— rather than the trees

— consec utive or concurrent, number of counts, or length of the sentence on any individual count.” Id. Whether a sentence is inappropriate ultimately turns on the culpability of the defendant, the severity of the crime, the damage done to others, and a myriad of other factors that come to light in a given case. Id. at 1224.

We note , however, that Carter ’s argument is misp laced. He contends that the trial court did not properly weigh certain mitigators , and f or this reason, “requests this Court to re

- weigh the aggravati ng and mitigating circumstances. ” Appellant’s Br. p. 6. It is well settled that w e do not review the we ight given to an aggravator or mitigator on appeal

. See Anglemyer v. State , 868 N.E.2d 482, 491 (Ind. 2007) (“Because the trial court no longer has any obligation to ‘weigh’ aggravating and mitigating factors against each other when imposing a sentence . . . a trial cour t can not now be said to have abused its discretion in failing to ‘properly weigh’ such factors.” ), clarified on reh’g , 875 N.E.2d 218 (Ind. 2007).4

The sentencing range for a Class D felony is six months to three years, with one
and one

- half years being the advisory term. Ind. Code § 35

- 50

- 2

- 7. Here, the trial court
sentenced Carter to two years in the Department of Correction. This sentence was within the statutory range. Regarding the nature of the offense, there is nothing in the record that indicates that this sentence is inappropriate. After pleading guilty to two counts of felon y theft, Carter was given what he described as “a gift,” the opportunity to work and earn money
for his family through the Allen County Work Release program. See Sent

. Tr. p. 7.
Carter chose not to abi de by the rules of the program by knowingly failing t o return as
scheduled. Regarding his character, Carter has a significant criminal history. He has
accumulated thirteen felony convictions in Indiana, including theft, auto theft, forgery,
and burglary , and his probation has been revoked twice. Carter a lso has a felony conviction and three misdemeanor convictions in Virginia. While Carter points out his intent to pursue an education, previous military service, and commitment to supporting his family , his criminal history and actions in this case show th at he has not been deterred from criminal activity through his extensive contact wit h the criminal justice system . N or has he availed himself of the opportunities given to him in the form of alternative sentencing

. Carter has failed to persuade us that h is two

- year sentence is inappropriate in light of the nature of the offense and his character.
Affirmed. MATHIAS, J., and BARNES, J., concur.