ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

NOAH T. WILLIAMS GREGORY F. ZOELLER

Bloomington, Indiana Attorney General of Indiana

STUART K. BAGGERLY CHANDRA K. HEIN

Bloomington, Indiana Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

BRANDON M. EBEYER )

)

Appellant-Defendant, )

)

 vs. ) No. 53A01-1209-CR-400

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MONROE CIRCUIT COURT

The Honorable Kenneth G. Todd, Judge

Cause No. 53C03-1109-FC-884

May 31, 2013

MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge

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.
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Brandon M. Ebeyer (“Ebeyer”) was convicted in Monroe Circuit Court of Class C 

felony attempted burglary and Class A misdemeanor resisting law enforcement. The trial 

court ordered Ebeyer to serve an aggregate five-year sentence in the Department of 

Correction. Ebeyer appeals his sentence and argues that it is inappropriate in light of the 

nature of the offense and the character of the offender. 

We affirm.

Facts and Procedural History

On September 13, 2011, the property manager at an apartment complex in 

Bloomington, Indiana contacted the police after she discovered that someone had entered 

the complex’s clubhouse and had disabled the security alarms. Bloomington Police 

Officer Blake Cunningham responded to the call and reviewed the surveillance video 

from earlier that day. The video confirmed that an individual had tampered with the 

alarm system and had unlocked the windows to the media room of the clubhouse.

Officer Cunningham believed that the individual would likely return to the 

clubhouse later that day and set up surveillance in the media room. The officer 

eventually heard activity outside the media room and a scratching noise on the window 

screen. The officer believed that someone was ripping the window screen in order to 

attempt to gain entry to the media room. Tr. p. 108. The officer looked through the 

window blinds when the sounds ceased and saw one person standing outside the window. 

The activity outside the window resumed and the individual ripped the screen and 

pushed the window up. He pulled the blinds away from the window and leaned his head 

into the media room, but then backed away. The officer then exited the building and ran 
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outside to the window to confront the attempted burglar. The perpetrator was no longer 

at the window, but Officer Cunningham observed a minivan quickly backing out of a 

parking spot. The officer rapidly approached the minivan, drew his service weapon, and 

ordered the vehicle to stop. The driver stopped, but the passenger exited the vehicle and 

ran towards a wooded area adjacent to the complex. He failed to stop when ordered to do 

so by Officer Cunningham. Other officers who had been called to the scene used a K9 

officer to find the individual, subsequently identified as Ebeyer, lying on the ground in 

the wooded area. 

Ebeyer was charged with Class C felony attempted burglary and Class A 

misdemeanor resisting law enforcement. A jury trial was held on August 10, 2012, and 

Ebeyer proceeded pro se with advisory counsel. Ebeyer was found guilty as charged. 

The trial court ordered Ebeyer to serve five years for the Class C felony attempted 

burglary conviction and a concurrent one-year term for the Class A misdemeanor 

resisting law enforcement conviction. Ebeyer now appeals.

Discussion and Decision

Ebeyer argues that his aggregate five-year sentence is inappropriate in light of the 

nature of the offense and the character of the offender. Article 7, Sections 4 and 6 of the 

Indiana Constitution authorize independent appellate review and revision of a sentence 

imposed by the trial court. This appellate authority is implemented 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 
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sentence is inappropriate in light of the nature of the offense and the character of the 

offender.”

In our review of sentences under this rule, “we must and should exercise deference 

to a trial court’s sentencing decision, both because Rule 7(B) requires us to give ‘due 

consideration’ to that decision and because we understand and recognize the unique 

perspective a trial court brings to its sentencing decisions.” Trainor v. State, 950 N.E.2d 

352, 355 (Ind. Ct. App. 2011), trans. denied. Moreover, although we have the power to 

review and revise sentences, “[t]he principal role of appellate review should be to attempt 

to leaven the outliers, and identify some guiding principles for trial courts and those 

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). It is 

the defendant’s burden on appeal to persuade us that the sentence imposed by the trial 

court is inappropriate. Trainor, 950 N.E.2d at 355; Childress v. State, 848 N.E.2d 1073, 

1080 (Ind. 2006).

Ebeyer’s Class C felony conviction for attempted burglary subjected him to a 

sentence of two years to eight years, with the advisory sentence being four years. See Ind. 

Code § 35-50-2-6. The trial court ordered Ebeyer to serve five years for that conviction. 

The court then imposed a maximum one-year for Ebeyer’s Class A misdemeanor 

resisting law enforcement conviction. See Ind. Code § 35-50-3-2. Ebeyer was ordered to 

serve the two sentences concurrent to one another for an aggregate five-year sentence.

Ebeyer classifies the nature of his offense as spontaneous and “relatively benign.” 

Appellant’s Br. at 7-8. Ebeyer also describes the attempted burglary as “poorly executed” 
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in his attempt to minimize the nature of the offense. Ebeyer planned to burglarize the 

apartment clubhouse and damaged the security system for the purpose of concealing his 

planned crime. Ebeyer caused $391.10 of damage to the security system and was ordered 

to pay restitution in that amount. We acknowledge Ebeyer’s argument that no one was 

injured during his attempt to burglarize the clubhouse and the damages resulting from his 

offense were minimal. However, Ebeyer’s description of this crime as spontaneous is not 

supported by the evidence.

Furthermore, the character of the offender more than supports Ebeyer’s five-year 

aggregate sentence. Ebeyer was convicted of Class D felony theft in 2007, and his 

sentence was suspended to probation. His probation was revoked twice and he was 

unsuccessfully discharged. In 2009, Ebeyer was again convicted of Class D felony theft. 

Ebeyer also pleaded guilty to driving while suspended in 2011, and his sentence was 

suspended to probation. His probation was revoked and he served the previously 

suspended term in the Johnson County Jail. Ebeyer was charged with additional felony 

and misdemeanor offenses while he was out on bond on the charges in this case, and 

those charges were pending on the date he was sentenced.

For all of these reasons, we conclude that Ebeyer’s five-year sentence is not 

inappropriate in light of the nature of the offense and the character of the offender.

Affirmed.

BAKER, J., and MAY, J., concur.