Larry Gene Vickery v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 23 2019, 10:17 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Sean C. Mullins Curtis T. Hill, Jr.
Crown Point, Indiana Attorney General of Indiana
Taylor C. Byrley
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Larry Gene Vickery, May 23, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2477
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Clarence D.
Appellee-Plaintiff. Murray, Judge
Trial Court Cause No.
45G02-1707-F1-8
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2477 | May 23, 2019 Page 1 of 10
Statement of the Case
[1] Larry Gene Vickery (“Vickery”) appeals, following a guilty plea, the twelve-
year sentence imposed for his Level 3 felony criminal confinement conviction.1
He argues that his sentence, which was ordered to be served at the Indiana
Department of Correction, is inappropriate. Concluding that Vickery has failed
to show that his sentence is inappropriate, we affirm his sentence.
[2] We affirm.
Issue
Whether Vickery’s sentence is inappropriate pursuant to Indiana
Appellate Rule 7(B).
Facts
[3] In July 2017, Vickery was out on bond in two separate domestic violence causes
in which his ex-wife, Jennifer Ledbetter (“Ledbetter”), was the victim. At that
time, she had a protective order against him. Vickery and Ledbetter have two
daughters and a three-year-old son (“Son”). On July 6, 2017, Vickery went to
Ledbetter’s home to speak to Son. Ledbetter did not let Vickery in the house
because of the protective order but allowed Son to stand by the door. Vickery
forced open the door, pushed Ledbetter to the floor, and sprayed her face with
pepper spray. Son, who was standing nearby, was also exposed to the pepper
1
IND. CODE § 35-42-3-3. We note that, in the recent 2019 session, our legislature amended this statute. That
recent amendment does not affect this appeal.
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spray. Vickery handcuffed Ledbetter, beat her, and told her that he was going
to kill her. Vickery then took the three children and fled the scene. Ledbetter
ran to her neighbor’s house and called the police. Shortly thereafter, while the
police were on the scene, Vickery called his mother and told her that he refused
to turn himself into the police and that he had planned to kill Ledbetter and “go
out with a boom on television[.]” (App. Vol. 2 at 48) (internal quotation marks
omitted). The police later arrested Vickery.
[4] The State charged Vickery with: (1) Level 1 felony attempted murder; (2) Level
3 felony criminal confinement; (3) Level 5 felony criminal confinement; (4)
Level 5 felony domestic battery by means of a deadly weapon; (5) Level 5
felony domestic battery by means of a deadly weapon; (6) Level 6 felony
domestic battery resulting in moderate bodily injury; (7) Level 6 felony
domestic battery; (8) Class A misdemeanor domestic battery; (9) Class A
misdemeanor domestic battery; (10) Level 2 felony burglary; (11) Level 3 felony
burglary; (12) Level 5 felony battery; (13) Level 5 felony neglect of a dependent;
(14) Level 6 felony neglect of a dependent; and (15) Class A misdemeanor
invasion of privacy.
[5] Vickery entered into a plea agreement and pled guilty to the Level 3 felony
criminal confinement charge in exchange for the State’s dismissal of the
remaining fourteen charges in this cause and the dismissal of the two other
causes involving Ledbetter as a victim (one in which he was charged with Level
6 felony intimidation and Class A misdemeanor invasion of privacy, and the
other cause in which he was charged with Level 6 felony domestic battery and
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Level 6 felony strangulation). The plea agreement also provided that
sentencing would be open but have a cap of twelve years.
[6] During Vickery’s sentencing hearing, Ledbetter testified about the details of
Vickery’s crime against her. Specifically, she testified that Vickery had planned
his attack and that, shortly before July 6th, he had called the cable company
and cancelled the account for her home alarm system. She also described the
July 6th offense and how he had pepper sprayed her face and continuously
punched and kicked her while Son “screamed in pain” from the mace that had
gotten on him. (Tr. Vol. 3 at 11). Ledbetter begged Vickery to let her help Son,
but Vickery refused. Instead, he repeatedly told her that he was going “to cut
[her] body into pieces” and that she “was going to die slowly.” (Tr. Vol. 3 at
12). She told the trial court that she and Son still had nightmares about
Vickery’s attack and that Son would frequently “awaken in the middle of the
night, screaming about how his father shot fireballs at us.” (Tr. Vol. 13).
Ledbetter also read a victim-impact statement and revealed painstaking details
about the repeated domestic abuse she had endured at the hands of Vickery
during their thirteen-year relationship and his ongoing manipulation of her.
[7] Vickery’s counsel acknowledged that the twelve-year sentencing cap set out in
the plea agreement was an “appropriate” sentence, (Tr. Vol. 3 at 30), and he
recognized that community corrections had written a letter indicating that he
was “not eligible for direct placement to Lake County Community Corrections”
due to committing his offense with a deadly weapon. (App. Vol. 2 at 188).
Nevertheless, Vickery argued that the trial court should divide his twelve-year
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sentence in the following manner: four to five years in the Indiana Department
of Correction, followed by three to four years in community corrections, and
then three to four years on probation. (Tr. Vol. 3 at 30). Vickery also told the
trial court that, at the time of his offense, he had been using steroids for two
years, and he introduced a psychosocial assessment from 2012 and April 2017,
which showed that he had been diagnosed with anger issues, depression, and
anxiety.
[8] When sentencing Vickery, the trial court commented, in part, as follows:
The nature and circumstances of the crime are just unimaginable.
Certainly[,] a significant aggravating factor in this case is the
nature and circumstances of the crime.
One of the things I heard this morning that I found especially
disturbing was in Mr. Vickery’s own comments that he -- he
didn’t spray his child with pepper spray. He sprayed it, and
essentially the child walked into it. The notion that any aspect of
that would be somehow acceptable or mitigating, I don’t
understand the thinking there, that to spray pepper spray in
someone’s face in the first place is a crime. He did it in his ex-
wife’s face, in her home, around the children. The children lived
there. That’s an extremely dangerous act. He may as well have
sprayed it in his children’s faces. They live there. And they were
exposed to it, at least one child was.
This case represents one of the most disturbing accounts of
spousal abuse that I can recall in my memory which goes back
several years as a judge on the criminal bench. The attacks by
Mr. Vickery, they’ve been relentless, calculated, clearly meant to
severely injure -- and I don’t use the word lightly -- but terrorize
the victim in this case. Mr. Vickery’s own comments this
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morning, in his comments he stated that he admitted to using
control and violence to control the situation as he put it.
I don’t know how long it would take a child or any human being
to forget having mace sprayed at them. There was a comment
this morning that the toddler stated that his daddy sprayed
fireballs at him. One can only speculate if that creates a memory
for a lifetime, it’s -- it’s mind boggling. I suspect that the
memory will be with this child for a long time. From where I sit,
Mr. Vickery, these children don’t need your presence in their
lives; they need your absence. You have been an absolute
menace to your ex-wife and your children, sir.
(Tr. Vol. 3 at 37-38).
[9] The trial court specifically rejected Vickery’s proffered mental health report to
be a mitigating circumstance. The trial court, however, found Vickery’s guilty
plea to be a mitigating circumstance but stated that it did “not carry any
significant weight because the evidence in this case [wa]s substantial and would
likely have lead [sic] to a conviction had the case gone to trial.” (Tr. Vol. 3 at
38). The trial court found the following aggravating circumstances: (1)
Vickery’s criminal history, which included seven felony convictions involving
crimes of dishonesty2 and three probation violations; (2) the nature and
circumstances of the crime, which the trial court found to be a significant; (3)
Vickery committed the offense against the victim when he was on bond in two
other domestic violence cases involving the same victim; (4) he violated a
2
Vickery’s seven prior felony convictions included: two separate causes for Class D felony check fraud in
2002; Class D felony theft in 2002; Class D felony theft in 2003; Class D felony check fraud in 2003; and two
counts of Class D felony receiving stolen property in 2011.
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protective order against the victim; and (5) Vickery’s “morally depraved”
character. (App. Vol. 2 at 121). The trial court imposed a twelve (12) year
sentence and ordered it to be executed at the Indiana Department of Correction
“with no alternative placement and no probation.” (Tr. Vol. 3 at 38). Vickery
now appeals.
Decision
[10] Vickery argues that his twelve-year sentence is inappropriate. He does not
challenge the duration of his sentence, which was within the sentencing cap
contained in his plea agreement. Instead, Vickery challenges the trial court’s
sentencing decision regarding placement, arguing that this Court should order
the trial court to impose a “split sentence” with the time divided equally
between community corrections and the Indiana Department of Correction.
(Vickery’s Br. 10).
[11] We may revise a sentence if it is inappropriate in light of the nature of the
offense and the character of the offender. Ind. Appellate Rule 7(B). The
defendant has the burden of persuading us that his sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a
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).
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[12] When determining whether a sentence is inappropriate, we acknowledge that
the advisory sentence “is the starting point the Legislature has selected as an
appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.
Here, Vickery entered a guilty plea and was convicted of Level 3 felony
criminal confinement. A Level 3 felony has a sentencing range of six (6) years
to sixteen (16) years with an advisory sentence of nine (9) years. I.C. § 35-50-2-
5(b). The trial court imposed a twelve-year sentence, which is less than the
maximum sentence and consistent with the sentencing cap set out in Vickery’s
plea agreement.
[13] The location where a sentence is to be served is an appropriate focus for our
review and revise authority under Appellate Rule 7(B). Biddinger v. State, 868
N.E.2d 407, 414 (Ind. 2007). However, “it will be quite difficult for a defendant
to prevail on a claim that the placement of his or her sentence is inappropriate.”
Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct. App. 2007). Indeed, “the
question under Appellate Rule 7(B) is not whether another sentence is more
appropriate; rather, the question is whether the sentence imposed is
inappropriate.” Id. at 344 (emphasis in original). “A defendant challenging the
placement of a sentence must convince us that the given placement is itself
inappropriate.” Id.
[14] Turning to the nature of Vickery’s criminal confinement offense, we note that
Vickery acknowledges the “aggravating nature” of the offense. (Vickery’s Br.
8). The trial court found the nature and circumstances of Vickery’s offense to
be “unimaginable” and “significant[.]” (Tr. Vol. 3 at 37). The record reveals
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that Vickery cancelled the account for his ex-wife’s home alarm system shortly
before he went to her house where he sprayed her face with mace, handcuffed
her, repeatedly beat her, and threatened to kill her. Indeed, he repeatedly told
her that he was going “to cut [her] body into pieces” and that she “was going to
die slowly.” (Tr. Vol. 3 at 12). The nature of his offense was exacerbated by
the fact that Vickery committed his brutal acts against Ledbetter in the presence
of their three-year-old child, who “screamed in pain” from the mace that
Vickery had sprayed and who had to watch as Vickery beat the toddler’s mother
and refused to let her console the young boy. (Tr. Vol. 3 at 11).
[15] Turning to Vickery’s character, we note that his poor character is revealed by
the facts that he committed his offense against Ledbetter while he was out on
bond from two domestic abuse cases involving Ledbetter and that he did so in
violation of the protective order she had against him. Additionally, he has a
criminal history, consisting of seven prior felony convictions and three
probation violations. Vickery contends that his prior convictions, which
included check fraud, theft, and receiving stolen property, show that he has “a
non-violent character[.]” (Vickery’s Br. 9). He seems to suggest that we should
ignore Ledbetter’s victim impact statement made during the sentencing hearing,
which revealed that Vickery’s character was far from “non-violent.” When
reflecting on Vickery’s character, the trial court noted that Vickery was
“morally depraved and use[d] violence as a means of control[,]” and the trial
court “consider[ed] [Vickery] to be extremely dangerous to the victim and her
children because of the numerous charges and protective orders involving the
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same victim[.]”(App. Vol. 2 at 121). Furthermore, the record reveals that
community corrections determined that Vickery was not eligible for such
placement because his offense involved the use of a deadly weapon.
[16] Vickery has not persuaded us that his twelve-year sentence and placement in
the Indiana Department of Correction for his Level 3 felony criminal
confinement conviction is inappropriate. Therefore, we affirm the sentence
imposed by the trial court.
[17] Affirmed.
Riley, J., and Bailey, J., concur.
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