Christopher D. Berry v. State of Indiana (mem. dec.), 82A01-1611-CR-2695

On August 5, 2015, Christopher D. Berry pointed a handgun (later recovered and found to be stolen) at his girlfriend De’Shawna Brown and threatened to kill her.
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; he pled guilty to Level 5 intimidation and Class A misdemeanor conversion.
A pretrial diversion agreement was entered requiring Berry to obey all laws; while in the program he was convicted in a separate case of carrying a handgun without a license.
The State moved to revoke diversion and proceed to final judgment; the trial court entered convictions and sentenced Berry to three years for the Level 5 intimidation (182 days executed, remainder suspended to probation) and concurrent 182 days for conversion.
The court found Berry’s guilty plea as a mitigating factor and his prior juvenile adjudication plus the new handgun conviction as aggravators; Berry appealed challenging revocation/use of the new conviction and the sentence’s appropriateness.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Berry)	Held
Whether trial court abused discretion by using Berry’s separate misdemeanor conviction in revoking diversion, entering judgment, and as an aggravator	Trial court may consider post-offense convictions and criminal history as aggravators and may revoke diversion for violations	Using the same misdemeanor both to revoke diversion and as an aggravator is impermissible "double aggravation"	No abuse of discretion; court properly used the conviction to revoke diversion and as an aggravator and imposed concurrent sentences (not consecutive)
Whether Berry’s sentence (three years, with most suspended) is inappropriate under Ind. App. R. 7(B)	Sentence is within statutory range and suspending most of it shows leniency; nature of offense and defendant’s character justify sentence	Sentence is inappropriate given limited criminal history and PSI suggesting low recidivism risk	Sentence is not inappropriate; offense was serious (gunpoint threat with stolen firearm) and Berry’s conduct while on diversion undermines character/mitigation

Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007) (sentencing review and abuse-of-discretion framework)
Anglemyer v. State, 875 N.E.2d 218 (Ind. 2007) (clarification on sentencing statement consequences)
Robertson v. State, 871 N.E.2d 280 (Ind. 2007) (court may consider offenses reflected in PSI, including post-offense conduct)
Pedraza v. State, 887 N.E.2d 77 (Ind. 2008) (single prior conviction may serve both to support enhancement and as an aggravator, but not to support consecutive sentences)
Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008) (purpose and scope of Rule 7(B) review)
Rutherford v. State, 866 N.E.2d 867 (Ind. Ct. App. 2007) (deference to trial court’s sentencing perspective)
Davidson v. State, 926 N.E.2d 1023 (Ind. 2010) (Rule 7(B) review considers aggregate penal consequences)
King v. State, 894 N.E.2d 265 (Ind. Ct. App. 2008) (limitations on matters considered under inappropriate-sentence review)