MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                               FILED
regarded as precedent or cited before any                               Jun 26 2018, 8:46 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
Timothy P. Broden                                        Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Justin Dennis Altwein,                                   June 26, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-243
        v.                                               Appeal from the
                                                         Tippecanoe Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Steven P. Meyer, Judge
                                                         Trial Court Cause No.
                                                         79D02-1707-F5-81



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-243 | June 26, 2018                    Page 1 of 9
[1]   Justin Dennis Altwein (“Altwein”) pled guilty to carrying a handgun without a

      license,1 as a Level 5 felony, and resisting law enforcement,2 as a Class A

      misdemeanor. He was sentenced to four years in the Indiana Department of

      Correction (“the DOC”) for carrying a handgun without a license and one year

      in the DOC for resisting law enforcement. The sentences were ordered to run

      consecutive to each other for a total of five years, and two years were suspended

      to probation, resulting in an executed three-year sentence.


[2]   Altwein appeals and raises the following restated issues for our review:


                 I.        Whether the trial court erred when it ordered Altwein to
                           serve his sentence for Class A misdemeanor resisting law
                           enforcement in the DOC; and


                 II.       Whether Altwein’s sentence is inappropriate in light of the
                           nature of the offense and the character of the offender.


[3]   We affirm and remand with instructions.


                                       Facts and Procedural History
[4]   On July 6, 2017, at approximately 10:15 a.m., the Indiana State Police received

      a call from dispatch that a male driver in a white car with Wisconsin license

      plates had pointed a handgun at another driver while traveling southbound near

      mile marker 200 on Interstate 65 in Tippecanoe County, Indiana. Appellant’s



      11
           See Ind. Code § 35-47-2-1(a), (e).
      2
          See Ind. Code § 35-44.1-3-1(a).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-243 | June 26, 2018       Page 2 of 9
      App. Vol. II at 48. Indiana State Police Troopers Hampton and McCormick

      responded to the dispatch. After observing a vehicle matching that description

      exit the interstate near mile marker 178, Trooper Hampton conducted a traffic

      stop of the vehicle.


[5]   The driver, later identified as Altwein, exited his vehicle and ran into the nearby

      woods. The Troopers ordered Altwein to stop, but he ignored these

      commands. After Altwein was eventually apprehended, he continued to resist

      the Troopers by pulling his arms away as they attempted to detain him. The

      Troopers asked Altwein if there were any weapons in the vehicle, and he

      informed the Troopers that there was a rifle that belonged to his girlfriend

      inside the car, but denied that any handguns were in the vehicle. Id. The

      Troopers later observed and seized a loaded handgun from inside the vehicle.

      Id. They ran a records check on the handgun, which showed that it was

      reported stolen in Wisconsin. Id. The Troopers also spoke to a female

      passenger in Altwein’s vehicle, who told them that she had seen Altwein

      holding the handgun earlier that day. Id.


[6]   On July 17, 2017, the State charged Altwein with Count I, carrying a handgun

      without a license, as a Level 5 felony; Count II, theft of a firearm, a Level 6

      felony; Count III, resisting a law enforcement, as a Class A misdemeanor;

      Count IV, resisting law enforcement, as a Class A misdemeanor; and Count V,

      carrying a handgun without a license, as a Class A misdemeanor. On

      November 17, 2017, Altwein pleaded guilty to Level 5 felony carrying a

      handgun without a license and Class A misdemeanor resisting law

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-243 | June 26, 2018   Page 3 of 9
      enforcement. Id. at 26-28. The remaining counts were dismissed, and

      sentencing was left to the discretion of the trial court. Id.


[7]   At the sentencing hearing, the trial court stated that the “overall seriousness of

      this offense is very troubling” because Altwein was in possession of a firearm,

      which he was not allowed to do and was aware of this prohibition. Tr. Vol. 2 at

      37. The trial court also noted that Altwein lied to police about possessing the

      handgun and that he attempted to flee from police on foot. Id. The trial court

      focused on the facts that this incident occurred on the interstate, Altwein was

      traveling at fast speeds, and Altwein admitted that this offense stemmed from

      use of illegal substances. Id. The trial court also noted that Altwein had failed

      to address his mental health and substance abuse issues despite having previous

      opportunities to do so and expressed concern about Altwein continually getting

      into more serious trouble involving firearms. Id. at 38. The trial court

      sentenced Altwein to four years in the DOC for his carrying a handgun without

      a license conviction and one year in the DOC for his resisting law enforcement

      conviction to be served consecutively for a total of five years; the trial court

      suspended two years to probation and order the remaining three years to be

      executed in the DOC. Appellant’s App. Vol. II at 13-16. Altwein now appeals.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-243 | June 26, 2018   Page 4 of 9
                                     Discussion and Decision

                 I.      Imposition of DOC Sentence on Misdemeanor
                                         Conviction
[8]   Altwein argues that the trial court erred when it imposed a DOC sentence upon

      his one-year sentence for his conviction for Class A misdemeanor resisting law

      enforcement. We agree. Generally, a person convicted of a misdemeanor may

      not be committed to the DOC. Ind. Code § 35-38-3-3(a). The exceptions to

      this rule are: (1) if placement in the county jail places the inmate in danger or

      poses a risk to others; (2) for other good cause shown; or (3) if the person has

      more than 547 days remaining before the person’s earliest release date as a

      result of consecutive misdemeanor sentences or a sentencing enhancement

      applied to a misdemeanor sentence. I.C. § 35-38-3-3(b). In the present case,

      none of these exceptions were cited by the trial court in its sentencing order.

      Appellant’s App. Vol. II at 13-16. A trial court can only order sentences

      authorized by statute and permissible under the Indiana Constitution regardless

      of the presence of aggravating or mitigating factors. I.C. § 35-38-1-7.1(d). We,

      therefore, conclude that it was error for the trial court to state in the sentencing

      order that Altwein was sentenced to the DOC for one year for his Class A

      misdemeanor conviction for resisting law enforcement. We remand to the trial

      court to vacate the trial court’s reference to the DOC in relation to Altwein’s

      Class A misdemeanor conviction.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-243 | June 26, 2018   Page 5 of 9
                                     II.      Inappropriate Sentence
[9]    Pursuant to Indiana Appellate Rule 7(B), this 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.” Our Supreme Court has explained that the

       principal role of appellate review should be to attempt to leaven the outliers, not

       to achieve a perceived correct result in each case. Brown v. State, 52 N.E.3d 945,

       954 (Ind. Ct. App. 2016) (citing Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008)), trans. denied. We independently examine the nature of a defendant’s

       offenses and his character under Appellate Rule 7(B) with substantial deference

       to the trial court’s sentence. Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015).

       “In conducting our review, we do not look to see whether the defendant’s

       sentence is appropriate or if another sentence might be more appropriate;

       rather, the test is whether the sentence is ‘inappropriate.’” Barker v. State, 994

       N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied. The defendant bears the

       burden of persuading us that his sentence is inappropriate. Brown, 52 N.E.3d at

       954.


[10]   Altwein contends that his aggregate five-year sentence with two years

       suspended to probation is inappropriate in light of the nature of the offense and

       his character. Specifically, he asserts that, as to the nature of his offense, some

       degree of criminal history was “already embodied in the offense of carrying a

       handgun without a license as charged . . . because the crime was elevated . . . by

       reason of Altwein having been convicted of a felony within fifteen years.”

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-243 | June 26, 2018   Page 6 of 9
       Appellant’s Br. at 7. Altwein further contends that his sentence was

       inappropriate in light of his character because he pleaded guilty, his criminal

       history only contained one prior felony and misdemeanors that occurred when

       he was eighteen years old, and he has mental health issues that played a role in

       why he ran away and resisted the police.


[11]   “As to the nature of the offense, the advisory sentence is the starting point the

       legislature has selected as an appropriate sentence for the crime committed.”

       Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015). In the present case,

       Altwein was convicted of one Level 5 felony and one Class A misdemeanor.

       The advisory sentence for a Level 5 felony is three years, with a range of

       between one and six years. I.C. § 35-50-2-6(b). A person who commits a Class

       A misdemeanor shall be imprisoned for a fixed term of not more than one year.

       I.C. § 35-50-3-2.


[12]   The nature of the offense is found in the details and circumstances of the

       commission of the offense and the defendant’s participation. Croy v. State, 953

       N.E.2d 660, 664 (Ind. Ct. App. 2011). Here, the nature of Altwein’s offense is

       that he was found to be in possession of a handgun, which he was not allowed

       to possess because he did not have a license and because he had prior felonies,

       and when he was stopped by the police, he fled into the nearby woods. When

       he was eventually caught by the police, he continued to resist by pulling his

       arms away from the police. As the trial court noted during sentencing, offenses

       involving firearms, especially by people who are not supposed to possess them,



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-243 | June 26, 2018   Page 7 of 9
       should be taken very seriously because firearms are very dangerous weapons.

       Tr. Vol. 2 at 36-37.


[13]   “The character of the offender is found in what we learn of the offender’s life

       and conduct.” Croy, 953 N.E.2d at 664. Altwein has a lengthy criminal record

       that includes juvenile offenses, felonies, and misdemeanors. Several of his

       convictions consist of crimes similar to the present offense: he was previously

       convicted of delinquent possession of a firearm, theft of movable property,

       criminal damage to property, malicious destruction of a building, and assault

       with a dangerous weapon. Appellant’s App. Vol. II at 56-58. Altwein has a

       previous probation violation, which was found to be true, and he had a pending

       case in Wisconsin at the time he was arrested and convicted of the present

       crimes. Altwein’s criminal history shows that prior punishments and leniency

       have not deterred him from committing further similar crimes, which shows

       poor character. Although Altwein did plead guilty and does have mental health

       issues, the trial court noted that he received a benefit from pleading guilty

       because some of his charges were dismissed and that he had been given

       previous opportunities to address his mental health issues, which have failed.

       Tr. Vol. 2 at 37-38. Additionally, the trial court also made reference to the fact

       that Altwein demonstrated an “attitude problem” when interviewed for the pre-

       sentence investigation report, which the trial court took under consideration.

       Id. at 38-39. Based on the nature of the offense and the character of the

       offender, we conclude that Altwein’s sentence is not inappropriate under

       Appellate Rule 7(B).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-243 | June 26, 2018   Page 8 of 9
[14]   Affirmed and remanded with instructions.


       Baker, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-243 | June 26, 2018   Page 9 of 9
