MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                              May 16 2019, 7:19 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.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Thomas B. O’Farrell                                     Curtis T. Hill, Jr.
McClure | O’Farrell                                     Attorney General of Indiana
Indianapolis, Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Troy Ryan Wilson,                                       May 16, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-2315
        v.                                              Appeal from the Hamilton
                                                        Superior Court
State of Indiana,                                       The Honorable David K. Najjar,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        29D05-1801-CM-245



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2315 | May 16, 2019                    Page 1 of 6
[1]   Troy Wilson appeals the sentence imposed by the trial court after he was

      convicted of Class A Misdemeanor Possession of Marijuana and Class C

      Misdemeanor Possession of Paraphernalia, arguing that the trial court erred by

      inappropriately citing an aggravating factor. Finding no error, we affirm.


                                                   Facts
[2]   On or around December 23, 2017, Arcadia Police Department Officer

      Christopher Lane responded to a late-night dispatch saying that Wilson had

      made a “threat to life[]” to someone, that he was driving a black pickup truck,

      and that he was armed. Tr. Vol. II p. 7. After driving to a few different

      locations, Officer Lane drove to the home of Kelly Brinkman, Wilson’s

      girlfriend, where he had been living.


[3]   There, Officer Lane found a black pickup truck parked in an alley, with Wilson

      standing near the truck’s rear. Officer Lane approached Wilson to speak with

      him and immediately noted the strong smell of alcohol. A few minutes later,

      Hamilton County Sheriff’s Deputy Dan DeYoung arrived to assist Officer

      Lane. As Wilson and Officer Lane talked, Deputy DeYoung walked to the

      front of the truck. The driver’s side door was open, and Deputy DeYoung saw a

      glass jar containing 2.5 grams of marijuana inside the vehicle.


[4]   Deputy DeYoung arrested Wilson and questioned him about whether he

      owned the pickup truck or the marijuana. Wilson responded that he did not

      own the truck but that he drove it regularly. He also stated that he “uses


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2315 | May 16, 2019   Page 2 of 6
      marijuana daily.” Id. at 23. Deputy DeYoung searched Wilson incident to his

      arrest and found a pack of cigarettes with a marijuana pipe inside and a small

      plastic baggie containing 0.05 grams of marijuana.


[5]   On January 11, 2018, the State charged Wilson with Class A misdemeanor

      possession of marijuana, Class B misdemeanor possession of marijuana, and

      Class C misdemeanor possession of paraphernalia. At Wilson’s August 30,

      2018, bench trial, Wilson and the two officers testified about the events of that

      evening. Wilson’s testimony conflicted with the officers’ testimony. The trial

      court found Wilson guilty as charged.


[6]   During sentencing, Wilson testified that he had a prior conviction for marijuana

      possession, that he had been on probation before, that he had had probation

      revoked, that he would prefer to be placed back on probation, and that he had

      just smoked marijuana “a couple weeks ago.” Id. at 62. Wilson also blamed his

      convictions on Brinkman, claiming that she intentionally placed the marijuana

      on his person to get back at him. Before issuing its sentence, the trial court said

      the following:


              I don’t think there’s really anything of consequence that you have
              said here today that is even remotely close to the truth. Not one
              thing. Your testimony previously during the evidentiary portion of
              the case, your testimony during the sentencing phase of the
              hearing, and your statement here has been nothing but confusion
              and blaming others for the things that befall you. You’ve not taken
              any responsibility for any of the actions. I’m not even talking
              about today’s case. You certainly have a right to maintain your
              innocence through all phases of the trial, and I’m not going to hold
              it against you if you don’t want to take responsibility for this case,
              but you haven’t taken responsibility for anything that happened in

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2315 | May 16, 2019   Page 3 of 6
              any of your cases where you were found guilty, where you did –
              even when you admitted violating your probation, you’re still not
              taking responsibility for that.

              The facts and circumstances as you have testified them are vastly
              different than any of the officers testifying here today, and I cannot
              find that anything that you have said with regard to the events that
              we’ve talked about here, the events of December 23rd and 24th,
              2017, are anything close to the truth. You have woven a tale, sir,
              you have woven a tale that is I think only in your mind. And it is
              not anything that can be substantiated, it is not anything that has
              been corroborated by any other piece of evidence. And it runs
              completely counter to any of the testimony offered by any of the
              officers and other witnesses that have testified here today.


      Id. at 68-69. The trial court merged the two possession of marijuana counts into

      one conviction for Class A misdemeanor possession of marijuana. The trial

      court then sentenced Wilson to concurrent terms of 180 days for the possession

      of marijuana conviction and sixty days for the possession of paraphernalia

      conviction. The trial court ordered Wilson to pay court costs in the amount of

      $185 and a drug interdiction fee of $200 and also denied his request to be placed

      on probation. Wilson now appeals.


                              Discussion and Decision
[7]   Wilson’s sole argument is that the trial court erred by inappropriately citing an

      aggravating factor at sentencing—namely, his lack of credibility.


[8]   Sentencing decisions are left to the sound discretion of the trial court. Smallwood

      v. State, 773 N.E.2d 259, 263 (Ind. 2002). We will reverse a sentencing decision

      involving the use or non-use of certain aggravating and mitigating factors only

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2315 | May 16, 2019   Page 4 of 6
       if the decision is clearly against the logic and effect of the facts and

       circumstances before the trial court and all reasonable inferences drawn

       therefrom. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g,

       875 N.E.2d 218.


[9]    Simply put, Wilson’s argument is unavailing.1 2 First and foremost, there is no

       evidence in the record that supports Wilson’s contention that the trial court

       cited his lack of credibility as an aggravator or that the trial court found

       aggravators at all. So, as a general matter, the foundation of Wilson’s argument

       is absent. In any event, misdemeanor statutes do not establish advisory

       sentences but only state the maximum allowable sentence. As such, trial courts

       have nothing to enhance or reduce by either aggravators or mitigators.

       Therefore, aggravators and mitigators are irrelevant in misdemeanor

       sentencing.


[10]   Second, the trial court plainly stated that in sentencing Wilson, it considered

       that “you [Wilson] haven’t taken responsibility for anything that happened in

       any of your other cases where you were found guilty[] . . . even when you

       admitted violating your probation, you’re still not taking responsibility for

       that.” Tr. Vol. II p. 68. In other words, the trial court did not reach its



       1
         The Court was amused by Appellant counsel’s incorporation of pictures to illustrate his argument, but we
       nonetheless find neither merit nor utility in making legal arguments based on the United States’s so-called
       fascination with liars.
       2
         Moreover, Wilson fails to recognize that because this was a bench trial, the trial court judge functioned as
       the ultimate trier of fact. Therefore, any argument that the trial court itself did not have the authority to
       weigh the credibility of Wilson and any evidence he proffered is unfounded.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2315 | May 16, 2019                         Page 5 of 6
       sentencing decision because of Wilson’s lack of credibility or insistence of

       innocence. Rather, the trial court looked to Wilson’s past convictions,

       violations of probation, and clear lack of remorse when it admonished and

       ultimately sentenced Wilson. The trial court was well within its discretion to

       make such a determination. See Bailey v. State, 763 N.E.2d 998, 1004 (Ind. 2002)

       (holding that a history of criminal activity and lack of remorse reflects poorly on

       a defendant’s character at sentencing). Therefore, the trial court did not err in its

       sentencing.


[11]   The judgment of the trial court is affirmed.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2315 | May 16, 2019   Page 6 of 6
