MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Feb 05 2020, 8:57 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher Sturgeon                                     Curtis T. Hill, Jr.
Clark County Public Defender Office                      Attorney General of Indiana
Jeffersonville, Indiana
                                                         Tiffany A. McCoy
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Bobby Price,                                             February 5, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1682
        v.                                               Appeal from the Clark Circuit
                                                         Court
State of Indiana,                                        The Honorable Bradley B. Jacobs,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         10C02-1708-F2-31



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1682 | February 5, 2020                 Page 1 of 8
[1]   Bobby Price appeals the sentence imposed by the trial court after he pleaded

      guilty to Level 4 felony possession of methamphetamine. Price argues that the

      trial court overlooked significant mitigating factors and that the sentence is

      inappropriate in light of the nature of the offense and his character. Finding no

      error and that the sentence is not inappropriate, we affirm.


                                                     Facts
[2]   On July 29, 2017, at 2:25 a.m., Clarksville Police Officer Ryan Roederer

      noticed a black pickup truck leave a hotel in a high drug crime area. Officer

      Roederer observed the truck abruptly change lanes and turn without using a

      turn signal; therefore, he activated his emergency lights and initiated a traffic

      stop.


[3]   Price was a passenger in the truck. The driver gave the officer permission to

      search the truck, so the officer asked Price and the other passengers to exit the

      vehicle. As Price got out of the truck, a digital scale with white residue on it fell

      out of the truck and onto the ground. Officer Roederer searched Price and felt a

      plastic bag with a large solid object inside Price’s right front pocket. Price told

      the officer that the object was methamphetamine. Officer Roederer removed

      the object, which was a substance later revealed to be 12.5 grams of

      methamphetamine. Price also had over $900 in his pocket.


[4]   On August 2, 2017, the State charged Price with Level 2 felony dealing in

      methamphetamine, Level 4 felony possession of methamphetamine, and Class

      C misdemeanor possession of paraphernalia. On October 9, 2018, Price and

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1682 | February 5, 2020   Page 2 of 8
      the State entered into a plea agreement, pursuant to which Price agreed to plead

      guilty to possession of methamphetamine in exchange for the dismissal of the

      other charges. Sentencing was left to the trial court’s discretion.


[5]   On November 19, 2018, the trial court accepted the plea agreement and

      sentenced Price to the Department of Correction (DOC) for ten years, with

      three years suspended to probation. The trial court recommended that Price

      participate in the Purposeful Incarceration program and encouraged Price to

      seek a sentence modification upon successful completion of the program. Price

      now appeals.


                                   Discussion and Decision
                                      I. Mitigating Factors
[6]   Price first argues that the trial court erred by failing to consider certain

      mitigating factors. Price has the burden of demonstrating that the mitigating

      evidence is significant, is clearly supported by the record, and was advanced for

      consideration to the trial court. McElfresh v. State, 51 N.E.3d 103, 112 (Ind.

      2016); Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007), clarified on reh’g,

      875 N.E.2d 218 (2007). Even if we find error, we will affirm if we are

      persuaded that the trial court would have imposed the same sentence had it

      considered the proffered mitigators. Anglemyer, 868 N.E.2d at 491.


[7]   At the sentencing hearing, Price tendered a mitigation report to the trial court.

      As the court was reading the report, it asked counsel “[w]hat are the suggested

      mitigations,” to which counsel responded as follows:
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1682 | February 5, 2020   Page 3 of 8
              . . . [Price] has had significant contacts with both juvenile . . . and
              adult D.O.C. beginning . . . way back . . . not wanting to get into
              the whole, whole gist of the report being as we’ve got a full
              courtroom right now. I think . . . his upbringing would act as a
              significant mitigator as well as his . . . history within the system
              and the way he’s been treated . . . . and bashed around in our
              system and I think we owe him . . . some measure of drug
              treatment at least to try to get him . . . back on track.


      Tr. Vol. II p. 35. The trial court found Price’s substance abuse disorder and

      significant childhood trauma as mitigating factors.


[8]   On appeal, Price argues that the trial court also should have found these

      mitigating factors: Price’s sixth grade education; his homelessness; his untreated

      mental health issues; the non-violent nature of his past convictions; the lack of a

      two-parent home; his expressed willingness to improve himself and get

      treatment; and his prospects of future employment. Initially, we note that these

      mitigators were not advanced for consideration before the trial court.

      Consequently, Price has waived the right to make this argument on appeal. See

      Koch v. State, 952 N.E.2d 359, 375 (Ind. Ct. App. 2011) (finding that trial court

      did not err by not finding defendant’s mental illness to be a mitigator where

      defendant did not raise it at the sentencing hearing).


[9]   Waiver notwithstanding, we find that the trial court implicitly considered

      several of these mitigators—specifically, Price’s limited education,

      homelessness, untreated mental health issues, lack of a two-parent home, and

      his willingness to enter substance abuse treatment—by noting that it found

      Price’s substance abuse disorder and childhood trauma as mitigating factors.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1682 | February 5, 2020   Page 4 of 8
       With respect to the non-violent nature of his past convictions, we note that

       included within his lengthy criminal history are convictions for assault and

       burglary. He has also been charged with battery, battery by bodily waste, and

       battery against a public safety official. Given this history, we cannot say Price

       has met the burden of showing that this proffered mitigator is supported by the

       evidence in the record. Finally, with respect to Price’s prospects of future

       employment, at the time of sentencing, Price was unemployed and had last

       worked in July 2017. Therefore, this mitigator is likewise not supported by the

       evidence in the record.


[10]   We also note that even if the trial court overlooked any mitigators, we will still

       affirm if we can say with confidence that the trial court would have imposed the

       same sentence. Anglemyer, 868 N.E.2d at 491. Here, the trial court reviewed

       the mitigation report, including all relevant details about Price’s challenging

       adolescence and battles with substance abuse. It implicitly considered all those

       details by finding his substance abuse disorder and childhood trauma to be

       mitigators. The trial court also found two substantial aggravators—Price’s

       lengthy criminal history and the fact that he was on probation at the time he

       committed the instant crime—and concluded that those aggravators

       outweighed the mitigators. Under these circumstances, we find that even if the

       trial court had explicitly listed the factors proffered by Price, it would have

       imposed the same sentence. Price’s arguments to the contrary are unavailing.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1682 | February 5, 2020   Page 5 of 8
                                          II. Appropriateness
[11]   Price also argues that the sentence imposed by the trial court is inappropriate in

       light of the nature of the offense and his character pursuant to Indiana

       Appellate Rule 7(B). We must “conduct [this] review with substantial

       deference and give ‘due consideration’ to the trial court’s decision—since the

       ‘principal role of [our] review is to attempt to leaven the outliers,’ and not to

       achieve a perceived ‘correct’ sentence.” Knapp v. State, 9 N.E.3d 1274, 1292

       (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013))

       (internal citations omitted).


[12]   Price pleaded guilty to a Level 4 felony, for which he faced a sentence of two to

       twelve years, with an advisory sentence of six years imprisonment. Ind. Code §

       35-50-2-5.5. The trial court imposed a ten-year sentence, but ordered three of

       those years suspended to probation, meaning that Price received an executed

       term of seven years, just slightly above the advisory. The trial court also

       recommended that Price participate in the Purposeful Incarceration program,1

       encouraging him to seek a sentence modification after successful completion.


[13]   With respect to the nature of the offense, Price was traveling in a high drug

       crime area in the middle of the night with a scale with white residue on it, over



       1
         Purposeful Incarceration is a cooperative project between the DOC and Indiana’s trial courts. With this
       program, the DOC “works in collaboration with Judges who can sentence chemically addicted offenders and
       document that they will ‘consider a sentence modification’ should the offender successfully complete an
       IDOC Therapeutic community. This supports the [DOC] and the Judiciary to get addicted offenders the
       treatment that they need and work collaboratively to support their successful re-entry into society.” Ind.
       Dep’t of Corr., Purposeful Incarceration, https://www.in.gov/idoc/2798.htm (last visited January 23, 2020).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1682 | February 5, 2020                Page 6 of 8
       $900 in cash, and a large quantity of methamphetamine on his person. We do

       not find that the nature of the offense renders the sentence inappropriate.


[14]   With respect to Price’s character, we certainly recognize the difficulties he has

       faced in his life. As noted above, he has only a sixth grade education. At the

       age of fourteen, he was molested twice by other inmates at a juvenile DOC

       facility. He has been using drugs since he was ten years old. At the time of

       sentencing, he was homeless and unemployed.


[15]   All of that said, we must also consider Price’s lengthy criminal history. As a

       juvenile, Price was arrested and charged as a delinquent and spent time in the

       DOC. As an adult, Price has been charged and convicted with crimes in

       Florida and Indiana. In Florida, he has at least three convictions for possession

       of drug paraphernalia, simple assault, and burglary. In Indiana, his crimes span

       four different counties. Prior to and including the current charges, Price was

       arrested and charged with fifteen felonies and thirteen misdemeanors, resulting

       in felony convictions for theft, burglary, criminal mischief, and the current

       conviction for possession of methamphetamine. After the current charges were

       filed, he was charged with and convicted of two felonies—dealing in marijuana

       and theft—and two misdemeanors—false informing and criminal mischief.

       There are currently charges pending against Price, including felony escape and

       battery against a public safety official.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1682 | February 5, 2020   Page 7 of 8
[16]   Price also has a history of violating probation. Indeed, he was on probation at

       the time he committed the current offense. In the past, his probation has been

       revoked and he has been placed in the DOC as a result.


[17]   It is clear that Price has a serious substance abuse problem. But the trial court

       took that into consideration by suggesting that he participate in the Purposeful

       Incarceration program. If Price successfully completes that program, he will be

       eligible for a sentence modification. Given Price’s many contacts with the

       criminal justice system over the years and his inability or unwillingness to seek

       treatment for his addiction, we cannot say that the sentence imposed by the trial

       court is inappropriate in light of the nature of the offense and his character.


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


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1682 | February 5, 2020   Page 8 of 8
