MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                                 FILED
      regarded as precedent or cited before any                                         Nov 09 2020, 8:28 am

      court except for the purpose of establishing                                          CLERK
                                                                                        Indiana Supreme Court
      the defense of res judicata, collateral                                              Court of Appeals
                                                                                             and Tax Court
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                        Curtis T. Hill, Jr.
      Ellen M. O’Connor                                       Attorney General of Indiana
      Marion County Public Defender Agency
                                                              Caroline G. Templeton
      – Appellate Division                                    Deputy Attorney General
      Indianapolis, Indiana                                   Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Christopher A. Bracken,                                 November 9, 2020
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              20A-CR-503
              v.                                              Appeal from the Marion Superior
                                                              Court
      State of Indiana,                                       The Honorable Grant W.
      Appellee-Plaintiff.                                     Hawkins, Judge
                                                              Trial Court Cause No.
                                                              49G05-1909-F5-35958



      Mathias, Judge.


[1]   Christopher Bracken (“Bracken”) was convicted in Marion Superior Court of

      two counts of Level 5 felony failure to register as a sex offender and Class A


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-503 | November 9, 2020            Page 1 of 8
      misdemeanor possession of paraphernalia. He was ordered to serve an

      aggregate six-year sentence. Bracken appeals and argues that his sentence is

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

      offender.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On March 19, 2003, Bracken was convicted of rape and ordered to register as a

      sex offender. In 2013, Bracken was convicted of failure to register as a sex

      offender. Bracken was again convicted of failure to register as a sex offender in

      2019 under cause number 49G06-1802-F5-3945 (“Cause 3945”).


[4]   As a result of the 2019 conviction and a subsequent probation violation,

      Bracken was placed on GPS monitoring. On August 16, 2019, Bracken reported

      to the Marion County Sheriff’s Office Sex or Violent Offender registry and

      registered his address as 1634 Winfield Avenue in Indianapolis.


[5]   In September 2019, on several dates, Bracken’s GPS monitor did not record any

      location hits at his registered address. A sheriff’s deputy attempted compliance

      checks on September 9 and 11, but no contact was made with Bracken on either

      date. On September 11, 2019, the deputy spoke to Bracken’s next-door neighbor

      who recognized Bracken’s picture and stated she had not seen him in several

      days.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-503 | November 9, 2020   Page 2 of 8
[6]   That same day, sheriff’s deputies located Bracken at a laundromat on the

      eastside of Indianapolis by using his GPS tracking monitor. Bracken was

      arrested, and during the search incident to arrest, officers found a clear pipe

      typically used for ingesting methamphetamine or crack cocaine. Bracken

      admitted he had not lived at his registered address for several days and stated

      that he was homeless.


[7]   Bracken was charged with two counts of Level 5 felony failure to register as a

      sex offender. He was also charged with Class A misdemeanor possession of

      paraphernalia.1 As a result of the charges and other alleged probation

      violations, on September 17, 2019, the State also filed a notice of probation

      violation in Cause 3945.


[8]   Bracken agreed to plead guilty without the benefit of a plea agreement and his

      guilty plea hearing was held on January 31, 2020. The State established a

      factual basis for the charged crimes and Bracken pleaded guilty as charged. His

      probation in Cause 3945 was also revoked.


[9]   At the sentencing hearing held the same day, the trial court weighed Bracken’s

      significant criminal history against his guilty plea and acceptance of

      responsibility. Tr. pp. 24–25. Bracken’s adult criminal history dates back to

      1989 and includes several probation and community corrections violations, six




      1
       Bracken has a 2019 conviction for possession of paraphernalia, which elevated the charge in this case to a
      Class A misdemeanor.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-503 | November 9, 2020                   Page 3 of 8
       misdemeanor convictions, and eleven felony convictions for auto theft, rape,

       criminal deviate conduct, criminal confinement, escape, robbery, carrying a

       handgun without a license, and failure to register as a sex offender.


[10]   Bracken attributed much of his criminal history and homelessness to his issues

       with substance abuse. Bracken informed the court that he began using illegal

       substances after his mother died of cancer when he was sixteen years old.

       Bracken admitted to using cocaine and marijuana. Bracken stated he smoked

       marijuana on a daily basis before he was arrested in this case. Bracken was

       diagnosed with depression after he participated in a mental health evaluation at

       the Marion County Jail.


[11]   After considering the aggravating and mitigating circumstances, the court

       ordered Bracken to serve concurrent terms of six years in the Department of

       Correction (“DOC”) for the Level 5 felony failure to register convictions and a

       concurrent term of 190 days for the possession of paraphernalia conviction. In

       Cause 3945, the court revoked 1,095 days of Bracken’s probation. The court

       ordered the aggregate six-year sentence in this case to be served consecutive to

       the sentence in Cause 3945. The court stated it would reconsider Bracken’s

       placement after three calendar years if he has successfully completed programs

       available to him in the DOC and has both a place to live and available

       employment.


[12]   Bracken now appeals his sentence.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-503 | November 9, 2020   Page 4 of 8
                                      Discussion and Decision
[13]   Bracken argues that his aggregate six-year sentence is inappropriate. Pursuant

       to Indiana Appellate Rule 7(B), “[t]he 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.” We must exercise deference to a trial court’s

       sentencing decision because Rule 7(B) requires us to give due consideration to

       that decision, and we understand and recognize the unique perspective a trial

       court brings to its sentencing decisions. Rose v. State, 

36 N.E.3d 1055

, 1063 (Ind.

       Ct. App. 2015). “Such deference 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).


[14]   The determination of whether we regard a sentence as inappropriate “turns on

       our sense of 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.” Bethea v. State, 

983 N.E.2d 1134

, 1145 (Ind. 2013) (quoting Cardwell v.

       State, 

895 N.E.2d 1219

, 1224 (Ind. 2008)). The applicable question is not

       whether another sentence is more appropriate, but whether the sentence

       imposed is inappropriate. 

Rose, 36 N.E.3d at 1063

.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-503 | November 9, 2020   Page 5 of 8
[15]   Although we have the power to review and revise sentences, the 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, 895 N.E.2d at 1225

. Our review under Rule 7(B) 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. And it is

the defendant’s burden on appeal to persuade us that the

       sentence imposed by the trial court is inappropriate. Childress v. State, 

848 N.E.2d 1073

, 1080 (Ind. 2006).


[16]   The sentencing range for a Level 5 felony is between one and six years. Ind.

       Code § 35-50-2-6. Bracken was ordered to serve the maximum six-year sentence

       for each Level 5 felony failure to register conviction. Bracken was ordered to

       serve 190 days for his possession of paraphernalia conviction, which is less than

       the maximum one-year sentence that may be imposed for a Class A

       misdemeanor conviction. See Ind. Code 35-50-3-2. Bracken was ordered to

       serve his sentences concurrently for an aggregate sentence of six years.


[17]   We agree with Bracken that there are no facts surrounding the nature of his

       offenses that would support a maximum sentence for failure to register as a sex

       offender. However, Bracken’s character, particularly his prior criminal history,

       more than supports his aggregate six-year sentence.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-503 | November 9, 2020   Page 6 of 8
[18]   Bracken’s prior criminal history consists of eleven prior felony convictions,

       lengthy terms of imprisonment, and several probation and community

       corrections violations. Bracken has two prior convictions for failing to register

       as a sex offender. He committed these current offenses while his was on

       probation for his 2019 failure to register conviction. His other felony

       convictions include the violent offenses of rape, criminal confinement, and

       robbery. Bracken also admitted to cocaine use and smoking marijuana every

       day prior to his arrest in this case.


[19]   Bracken has been given the benefit of lenient sentences in the past but has not

       taken advantage of the opportunity for rehabilitation. In this case, Bracken

       accepted responsibility and pleaded guilty to the offenses he committed, a fact

       that reflects well on his character. For that reason, the trial court informed

       Bracken that it would consider modification to Bracken’s placement after three

       calendar years2 if Bracken successfully completed programming provided by the

       DOC and has both a place to live and available employment.


                                                  Conclusion
[20]   Although Bracken accepted responsibility for the offenses he committed, he has

       not demonstrated that he is able to lead a law-abiding life or that he has taken

       advantage of prior opportunities for rehabilitation. For this reason, Bracken has




       2
        Bracken was ordered to serve the three-year sentence imposed for the probation violation in Cause 3945
       before serving the six-year sentence imposed in this case.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-503 | November 9, 2020                 Page 7 of 8
       not persuaded us that his aggregate six-year sentence is inappropriate in light of

       the nature of the offense and the character of the offender.


[21]   Affirmed.


       Bradford, C.J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-503 | November 9, 2020   Page 8 of 8