Opinion
23A-CR-378
08-29-2023
Jerrod DeeBasham King, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEYS FOR APPELLANT Marietto V. Massillamany Jacob W. Zigenfus Massillamany Jeter &Carson LLP Fishers, Indiana. ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana, Jodi Kathryn Stein Deputy Attorney General, David P. Dekold Certified Legal Intern Indianapolis, Indiana.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Madison Circuit Court The Honorable Mark K. Dudley, Judge Trial Court Cause No. 48C06-2202-F2-337
ATTORNEYS FOR APPELLANT Marietto V. Massillamany Jacob W. Zigenfus Massillamany Jeter &Carson LLP Fishers, Indiana.
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana, Jodi Kathryn Stein Deputy Attorney General, David P. Dekold Certified Legal Intern Indianapolis, Indiana.
MEMORANDUM DECISION
TAVITAS, JUDGE.
Case Summary
[¶1] Jerrod King was convicted of several offenses arising out of his drug-dealing activities and was sentenced to twenty-four years in the Department of Correction ("DOC"). King argues that the trial court abused its discretion in reaching this sentence and that his sentence is inappropriate. We disagree and affirm.
Issues
[¶2] King raises two issues on appeal, which we restate as:
I. Whether the trial court abused its discretion in sentencing King.
II. Whether King's sentence is inappropriate.
Facts
[¶3] In January 2022, a confidential informant executed two controlled purchases of carfentanil from King at King's residence. King's child was present in the home during the second purchase.
"Carfentanil is considered one of the most potent of the fentanyl analogs." Carfentanil v. Fentanyl: Which is more dangerous?, DRUGS.COM, https://perma.cc/3AF9-L288 (Last accessed Augus 14, 2023).
[¶4] Sometime after the second purchase, King drove to Trotwood, Ohio, which is a "major source of fentanyl and methamphetamine" in eastern Indiana. Tr. Vol. II p. 109. Law enforcement executed a traffic stop of King's vehicle when he returned to Indiana. A search of the vehicle uncovered 250.8 grams of a substance containing fentanyl and heroin and 55.12 grams of a fentanyl precursor. Law enforcement also searched King's home and discovered numerous illegal drugs, including 28.72 grams of carfentanil. Law enforcement later obtained King's Facebook and text messages, in which King referenced his "empire" and offered to sell a variety of black-market drugs. Ex. Vol. I p. 138.
[¶5] On February 1, 2022, the State charged King with one count of dealing in a narcotic drug, a Level 2 felony. On March 29, 2022, the State amended the charging information to allege seven counts: Count I, conspiracy to commit dealing in a narcotic drug, a Level 2 felony; Count II, corrupt business influence, a Level 5 felony; Count III, dealing in a narcotic drug, a Level 2 felony; Count IV, dealing in a narcotic drug, a Level 2 felony; Count V, neglect of a dependent, a Level 5 felony; Count VI, dealing in a narcotic drug, a Level 2 felony; and Count VII, dealing in marijuana, a Class A misdemeanor.
The State amended the charging information again on January 26, 2023; however, the amendments did not change the substance of the charges against King and do not affect our decision today.
[¶6] On December 27, 2022, King and the State executed a plea agreement whereby King agreed to plead guilty to Count V, neglect of a dependent, as a Level 6 felony, and the remaining counts as charged. Per the plea agreement, King's sentences would be concurrent but otherwise "open to argument." Appellant's App. Vol. II p. 102.
[¶7] The trial court held a hearing on the plea agreement on January 26, 2023, where the trial court accepted King's plea agreement and entered judgments of conviction. The trial court then held the sentencing hearing.
[¶8] The trial court found four aggravators: 1) King's criminal history; 2) King was "under court supervision" when he committed the offenses; 3) King's "multiple counts"; and 4) King's "repeat behavior." Id. at 188. The trial court also found two mitigators: King's mental health diagnoses and the fact that King pleaded guilty to the offenses.
[¶9] The trial court sentenced King to: twenty-four years in the DOC for Count I; five years in the DOC for Count II; twenty-four years in the DOC for each of Counts III, IV, and VI; twenty-four months in the Madison County Jail for Count V; and ten months in the Madison County Jail for Count VII. The trial court ordered that King's sentences would be served concurrently with his Level 2 felony dealing convictions for a total sentence of twenty-four years in the DOC. King now appeals.
Discussion and Decision
I. Abuse of Discretion
[¶10] King first argues that the trial court abused its discretion by considering King's multiple counts and repeat behavior as aggravators. We are not persuaded.
[¶11] Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Phipps v. State, 90 N.E.3d 1190, 1197 (Ind. 2018). "An abuse occurs only if the decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom." Schuler v. State, 132 N.E.3d 903, 904 (Ind. 2019) (citing Rice v. State, 6 N.E.3d 940, 943 (Ind. 2014)).
[¶12] A trial court might abuse its discretion in a number of ways, including:
(1) "failing to enter a sentencing statement at all"; (2) entering a sentencing statement in which the aggravating and mitigating factors are not supported by the record; (3) entering a sentencing statement that does not include reasons that are clearly supported by the record and advanced for consideration; or (4) entering a sentencing statement in which the reasons provided in the statement are "improper as a matter of law."Ackerman v. State, 51 N.E.3d 171, 193 (Ind. 2016) (quoting Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007)), cert. denied.
[¶13] "This Court presumes that a court that conducts a sentencing hearing renders its decision solely on the basis of relevant and probative evidence." Schuler, 132 N.E.3d at 905. Even when an abuse of discretion occurs, "[w]e will not remand for resentencing if we can say with confidence the trial court would have imposed the same sentence had it not considered the purportedly erroneous aggravators." Owen v. State, 210 N.E.3d 256, 269 (Ind. 2023). "A single aggravating circumstance may be sufficient to support an enhanced sentence." Hayko v. State, 211 N.E.3d 483, 487 n.1 (Ind. 2023).
[¶14] Here, King was convicted of seven offenses: 1) conspiracy to commit dealing in a narcotic drug, a Level 2 felony; 2) corrupt business influence, a Level 5 felony; 3) dealing in a narcotic drug, a Level 2 felony; 4) dealing in a narcotic drug, a Level 2 felony; 5) neglect of a dependent, a Level 6 felony; 6) dealing in a narcotic drug, a Level 2 felony; and 7) dealing in marijuana, a Class A misdemeanor. King's criminal history includes, among other convictions, several felony and misdemeanor convictions for battery, dealing in and possession of illegal drugs, and neglect of a dependent. King also has one probation revocation and was terminated from Veteran's Court.
[¶15] In its sentencing statement, the trial court recounted the "chronology" of King's offenses and lamented that King continued to reoffend despite the trial court's numerous efforts at rehabilitation. Tr. Vol. II p. 180. The trial court stated:
[Y]our first time was a crime of violence.... Two days after that you were at the VA Hospital at the psychiatric wing asking for help. Good for you.... [Y]ou made it a year and a half, and then you had a drug crime. You got sent to probation. In my mind, that's a court's way of saying let's work on that rehabilitation.... You made it six months. Another crime of violence. Got sent to probation again. You had another opportunity. A year later you're using cocaine. Another drug charge. You got sent to probation. Another chance to do something while in the community to address your criminal behavior. Two more months, another drug charge. Off to probation again [w]hile seeing counselors at the VA center for mental health . . . and addiction.... But while doing that you're using cocaine. Still more problems. [W]ithin one month of completing probation and three months of completing the VA counseling, . . . you're found with five and a half (5 %) pounds of marijuana. Another drug charge.... Another five months
you're with your child with ninety-five (95) grams of marijuana. . . . You're seen at the VA Hospital up in Marion, and they go . . . we need something intensive. You go to Michigan, Battle Creek. . . . [Y]ou weren't able to complete [Veteran's Court]....I sent you to the DOC. You got out of the DOC in roughly April of '21, and within two . . . months of that you're selling drugs again. . . . You bond out in this case in June, and within two months you're accused of a new crime.Id. at 180-83.
King allegedly threatened the confidential informant in a parking lot while released, and the State charged King with intimidation and obstruction of justice, both Level 6 felonies, in Case No. 48C06-2208-F6-002334. That case was pending at the time of this appeal.
[¶16] King argues that the trial court abused its discretion by considering King's multiple counts and repeat behavior as aggravators because "there is no statement of facts or explanation as to what the [trial court] means" by those terms. Appellant's Br. p. 11. The trial court's reference to multiple counts, however, clearly refers to the seven offenses of which King was convicted. See Mefford v. State, 983 N.E.2d 232, 238 (Ind.Ct.App. 2013) ("'It is a well established principle that the fact of multiple crimes or victims constitutes a valid aggravating circumstance that a trial court may consider in imposing consecutive or enhanced sentences.'" (quoting O'Connell v. State, 742 N.E.2d 943, 952 (Ind. 2001))), trans. denied. The trial court's reference to repeat offenses, moreover, clearly refers to King's repeated drug-related and child neglect offenses, which the trial court chronologized in its sentencing statement. See Buford v. State, 139 N.E.3d 1074, 1081 (Ind.Ct.App. 2019) (recognizing defendant's "repeated felony offenses" as a valid aggravating factor in sentence).
Although "multiple counts" and "repeat offenses" are not listed as aggravators in Indiana Code Section 35-38-1-7.1(a), King correctly observes that subsection (c) of that statute provides that the "criteria" listed in subsection (a) "do not limit the matters that the court may consider in determining the sentence."
[¶17] Furthermore, we are confident that the trial court would have imposed the same sentence even if it had not considered the two challenged aggravators. The trial court found two other aggravators-King's criminal history and the fact that he was under court supervision when he committed the instant offenses. Each of these offenses would permit an enhanced sentence, and King challenges neither. Additionally, the trial court thoughtfully explained that King's repeated unsuccessful efforts at rehabilitation warranted an enhanced sentence. We cannot say that the trial court abused its discretion.
II. Inappropriate Sentence
[¶18] King next argues that his sentence is inappropriate. We are also not persuaded.
[¶19] The Indiana Constitution authorizes independent appellate review and revision of a trial court's sentencing decision. See Ind. Const. art. 7, §§ 4, 6; Jackson v. State, 145 N.E.3d 783, 784 (Ind. 2020). Our Supreme Court has implemented this authority through Indiana Appellate Rule 7(B), which allows this Court to revise a sentence when it is "inappropriate in light of the nature of the offense and the character of the offender." Our review of a sentence under Appellate Rule 7(B) is not an act of second guessing the trial court's sentence; rather, "[o]ur posture on appeal is [ ] deferential" to the trial court. Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016) (citing Rice v. State, 6 N.E.3d 940, 946 (Ind. 2014)). We exercise our authority under Appellate Rule 7(B) only in "exceptional cases, and its exercise 'boils down to our collective sense of what is appropriate.'" Mullins v. State, 148 N.E.3d 986, 987 (Ind. 2020) (per curiam) (quoting Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019)).
Though we must consider both the nature of the offense and the character of the offender, an appellant need not prove that each prong independently renders a sentence inappropriate. See, e.g., State v. Stidham, 157 N.E.3d 1185, 1195 (Ind. 2020) (granting a sentence reduction based solely on an analysis of aspects of the defendant's character); Connor v. State, 58 N.E.3d 215, 219 (Ind.Ct.App. 2016); see also Davis v. State, 173 N.E.3d 700, 707-09 (Ind.Ct.App. 2021) (Tavitas, J., concurring in result).
[¶20] "'The principal role of appellate review is to attempt to leaven the outliers.'" McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020) (quoting Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). The point is "not to achieve a perceived correct sentence." Id. "Whether a sentence should be deemed 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.'" Id. (quoting Cardwell, 895 N.E.2d at 1224). Deference to the trial court's sentence "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).
[¶21] When determining whether a sentence is inappropriate, the advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). In the case at bar, King's multiple sentences were ordered to be served concurrently with his Level 2 felony dealing convictions for a total sentence of twenty-four years in the DOC. The sentencing range for a Level 2 felony is ten to thirty years, with the advisory sentence set at seventeen and one-half years. I.C. § 35-50-2-4.5.
[¶22] Our analysis of the "nature of the offense" requires us to look at the nature, extent, heinousness, and brutality of the offense. See Brown v. State, 10 N.E.3d 1, 5 (Ind. 2014). King contends that his sentence is inappropriate because his drug dealing was "routine"-"King's dealing did not result in the death of another, King did not illegally possess a firearm at the time he was pulled over, and King did not commit a robbery within the scope of his dealing." Appellant's Br. p. 13. King, however, dealt in and transported large quantities of highly dangerous narcotics. Indeed, King recognizes that he "poison[ed] the community." Tr. Vol. II p. 161. Moreover, King placed his child in danger by dealing these drugs from his home when the child was present. We cannot say that King's sentence is inappropriate in light of the nature of the offense.
[¶23] King also argues that his sentence is inappropriate in light of his character. Our analysis of the character of the offender involves a broad consideration of a defendant's qualities, including the defendant's age, criminal history, background, past rehabilitative efforts, and remorse. See Harris v. State, 165 N.E.3d 91, 100 (Ind. 2021); McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020). The significance of a criminal history in assessing a defendant's character and an appropriate sentence varies based on the gravity, nature, proximity, and number of prior offenses in relation to the current offense. Pierce, 949 N.E.2d at 352-53; see also Sandleben v. State, 29 N.E.3d 126, 137 (Ind.Ct.App. 2015) (citing Bryant v. State, 841 N.E.2d 1154, 1156 (Ind. 2006)), trans. denied. "Even a minor criminal history is a poor reflection of a defendant's character." Prince v. State, 148 N.E.3d 1171, 1174 (Ind.Ct.App. 2020) (citing Moss v. State, 13 N.E.3d 440, 448 (Ind.Ct.App. 2014), trans. denied).
[¶24] King contends that his sentence is inappropriate in light of his character because he expressed remorse and pleaded guilty to the offenses. King also points out that the pre-sentence investigation ("PSI") report places him in the "Moderate" risk to reoffend category and scores him as "Low" for "Criminal Attitudes and Behavioral Patterns." Appellant's App. Vol. II p. 160. King, however, has a lengthy criminal history, which consists of, along with the present convictions, six felonies, eleven misdemeanors, a probation revocation, and a termination from Veteran's Court. Specifically, his criminal history includes several drug-related offenses and a felony conviction for neglect of a dependent, the same types of crimes as his instant convictions. Additionally, as the trial court recounted at length, King has been given numerous opportunities at rehabilitation, yet he has continued to reoffend. We are not persuaded that King's character warrants a revision of his sentence. Accordingly, we cannot say that King's sentence is inappropriate.
Conclusion
[¶25] The trial court did not abuse its discretion in sentencing King, and King's sentence is not inappropriate. Accordingly, we affirm.
[¶26] Affirmed.
Bailey, J., and Kenworthy, J., concur.