Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2695 | July 28, 2017 Page 1 of 8

MEMORANDUM DECISION

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

Karen M. Heard

Evansville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Laura R. Anderson

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Christopher D. Berry,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

July 28, 2017

Court of Appeals Case No.

82A01-1611-CR-2695

Appeal from the Vanderburgh 

Circuit Court

The Honorable Kelli Fink, 

Magistrate

Trial Court Cause No.

82C01-1508-F5-4719

Barnes, Judge.

Case Summary
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[1] Christopher D. Berry appeals his sentence for Level 6 felony intimidation and 

Class A misdemeanor conversion. We affirm. 

Issues

[2] Berry raises two issues on appeal, which we restate as:

I. whether the trial court abused its discretion by imposing a 

three-year sentence; and

II. whether the trial court’s sentence was inappropriate in 

light of the nature of the offense and the character of the 

offender. 

Facts

[3] On August 5, 2015, De’Shawna Brown was dating Berry, and had recently 

gotten into an altercation with another woman he was also dating. After the 

altercation she went to find Berry to speak with him. When she located Berry, 

he walked away from her and into a nearby alley. Brown followed him and 

when she caught up with him he pulled a handgun, pointed it at her leg, and 

threatened to kill her. As Brown was on the phone with a 911 dispatcher, she 

observed Berry drop the gun in a trashcan nearby. When officers arrived, they 

recovered the gun, which turned out to be stolen. 

[4] On August 7, 2015, Berry was charged with Level 5 felony intimidation, Level 

6 felony theft of a firearm, and Class A misdemeanor carrying a handgun 

without a license. On November 10, 2015, Berry pled guilty to Level 5 felony 

intimidation and Class A misdemeanor conversion. On the same day, a pretrial 
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diversion agreement was filed. A sentencing hearing was held on November 

25, 2015. During the hearing, the trial court accepted Berry’s plea and ordered 

Berry to successfully complete the terms of the pretrial diversion program. If 

Berry competed the program successfully, his case would be dismissed. 

Pursuant to the agreement, Berry was required to obey all laws. 

[5] While participating in the pretrial diversion program, Berry was charged and 

convicted in a separate criminal proceeding with carrying a handgun without a 

license. Because Berry had violated the terms of the pretrial diversion 

agreement by being convicted of another crime, the State, on May 16, 2016, 

filed a motion to set a hearing for final judgment in his intimidation and 

conversion case. The trial court granted the State’s motion and set a hearing for 

August 30, 2016. On that day, the trial court entered convictions for Level 5 

felony intimidation and Class A misdemeanor conversion, and then proceeded 

to sentence Berry. The trial court found mitigating the fact that Berry pled 

guilty and accepted responsibility for his crimes. It found as aggravators Berry’s 

previous juvenile adjudication and recent conviction for carrying a handgun 

without a license. The trial court sentenced Berry to three years for 

intimidation, with 182 days executed in the Department of Correction (“DOC”) 

and the rest suspended to probation, and a concurrent sentence of 182 days for 

conversion. The trial court denied Berry’s motion to correct error, and he now 

appeals. 

Analysis

I. Abuse of Discretion
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[6] Berry argues that the trial court abused its discretion when it “used [his] 

misdemeanor to 1) revoke him from the pretrial diversion program; 2) enter the 

conviction on the felony; and 3) enhance his sentence.” Appellant’s Br. p. 8. 

Sentencing decisions rest within the sound discretion of the trial court and are 

reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 

N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An 

abuse of discretion occurs when the decision is clearly against the logic and 

effect of the facts and circumstances before the court. Id. Indiana Code Section 

35-38-1-7.1(a) provides in part, “in determining what sentence to impose for a 

crime, a court may consider the following aggravating circumstance: . . . (2) 

[t]he person has a history of criminal or delinquent behavior.” The trial court 

may also consider whether, “[t]he person has recently violated the conditions of 

any probation ... or pretrial release granted to the person.” See Ind. Code § 35-

38-1-7.1(a)(6). A trial court may consider any offense in a defendant’s criminal 

history so long as those records are reflected in the presentencing investigation 

report. See Robertson v. State, 871 N.E.2d 280, 287 (Ind. 2007). If a new offense 

was committed after the instant offense, but prior to sentencing, the court may 

properly consider such offense as an aggravating circumstance. Id. 

[7] A trial court does not have an obligation to properly weigh aggravating and 

mitigating factors against each other. Anglemyer, 868 N.E.2d at 491. Therefore, 

a trial court cannot be said to have abused its discretion by failing to weigh such 

factors. Id. Once a trial court has issued a sentencing statement it may then 

impose any sentence that is authorized by statute. Id. 
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[8] Berry argues that once the trial court revoked his pretrial diversion agreement, 

pursuant to his conviction for carrying a handgun without a license, it was not 

then allowed to consider the conviction as an aggravating circumstance in 

determining the appropriate sentence for his current conviction. He essentially 

argues that this action would be “double aggravation.” We disagree. 

[9] Berry violated the terms of the agreement when he was convicted of carrying a 

handgun without a license. The trial court used the conviction to determine 

that Berry failed to complete the diversion program and revoke him from the 

program, and then found the same conviction to be an aggravating 

circumstance when deciding the sentence it imposed on his guilty plea. It did 

not abuse its discretion in doing so, especially since it imposed concurrent 

sentences. See, Pedraza v. State, 887 N.E.2d 77 (Ind. 2008) (holding that a trial 

court may use a single prior conviction as both an element to convict defendant 

of an enhanced crime and as an aggravating circumstance to enhance the 

sentence imposed, but it cannot be used to support consecutive sentences). 

II. Appropriateness of Sentence 

[10] Berry argues that the sentence imposed was inappropriate in light of the nature 

of the offense and his character. We determine whether Berry’s sentence is 

inappropriate under Indiana Appellate Rule 7(B). See Anglemyer, 868 N.E.2d at 

491. Although Rule 7(B) does not require us to be “extremely” deferential to a 

trial court’s sentencing decision, we still must give due consideration to that 

decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We 

also understand and recognize the unique perspective a trial court brings to its 
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sentencing decisions. Id. “Additionally, a defendant bears the burden of 

persuading the appellate court that his or her sentence is inappropriate.” Id.

[11] 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 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). We “should focus on the forest—the aggregate sentence—rather than 

the trees—consecutive 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 myriad other factors that come to light in a 

given case. Id. at 1224. When reviewing the appropriateness of a sentence 

under Rule 7(B), we may consider all aspects of the penal consequences 

imposed by the trial court in sentencing the defendant, including whether a 

portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023, 

1025 (Ind. 2010). 

[12] The advisory sentence is the starting point to determine the appropriateness of 

the sentence. See Anglemyer, 868 N.E.2d at 494. Pursuant to Ind. Code § 35-50-

2-6 (b), “a person who commits a Level 5 felony shall be imprisoned for a fixed 

term of between one and six years, with the advisory sentence being three 

years.” A person convicted of a Class A misdemeanor “shall be imprisoned for 

a fixed term of not more than one year.” See Ind. Code § 35-50-3-2. Here, 

Berry received concurrent sentences of three years on the felony charge and six 
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months on the misdemeanor charge, executed in the DOC, with two-and-onehalf years suspended to probation on the felony charge.1

 

[13] Regarding the nature of the offense, Berry concedes that the nature of the crime 

was serious. Berry pointed a loaded gun at the victim in this case and 

threatened to kill her. Also, the gun was stolen. The nature of the offense does 

not warrant a sentence reduction. 

[14] Our review of the character of the offender reveals that Berry has a prior 

juvenile conviction for dealing in marijuana. While in a pretrial diversion 

program for threatening someone with a stolen, unlicensed handgun, Berry 

again was caught carrying an unlicensed handgun. Clearly, this second event 

speaks to Berry’s bad character. 

[15] After considering the nature of the offense and Berry’s character, we cannot 

conclude that his sentence is inappropriate. This is especially true in light of the 

fact that the trial court showed leniency by suspending two-and-one-half years 

of Berry’s three-year sentence.2 

Conclusion

 

1 Berry incorrectly argues that he received a sentence above the advisory for a Level 5 felony. 

2 Berry also argues that the trial court failed to consider his “limited” criminal history and that the 

presentence investigation report indicated Berry was unlikely to reoffend as mitigators. Appellant’s Br. p. 13. 

This argument is waived because it falls under an abuse of discretion analysis, which Berry does not fully 

develop. Under an inappropriate sentence analysis we only consider the nature of the offense and the 

character of the offender. See King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). 
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[16] The trial court did not abuse its discretion in sentencing Berry. Also, the trial 

court did not impose an inappropriate sentence in light of the nature of the 

offenses and Berry’s character. We affirm. 

[17] Affirmed. 

Baker, J., and Crone, J., concur.