MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Mar 06 2020, 10:46 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
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Marjorie Lawyer-Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jimmy Dale Acrey,                                        March 6, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2536
        v.                                               Appeal from the
                                                         Henry Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Kit C. Dean Crane
                                                         Trial Court Cause No.
                                                         33C02-1806-F2-7



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2536 | March 6, 2020                 Page 1 of 5
[1]   Following his guilty plea to possession of methamphetamine as a Level 3

      felony,1 Jimmy Dale Acrey (“Acrey”) was sentenced to sixteen years in the

      Department of Correction. Contending that his sentence is inappropriate in

      light of both the nature of the offense and defendant’s character, he now

      appeals.


[2]   We affirm.


                                         Facts and Procedural History

[3]   Acrey’s sale of methamphetamine to a confidential informant prompted police

      to execute a search warrant at his home on June 27, 2018. During the search,

      police found over 360 grams of methamphetamine, drug pipes, a handgun,

      marijuana, drug paraphernalia, and a large amount of cash.


[4]   The State charged Acrey with two counts of dealing in methamphetamine,

      unlawful possession of a firearm by a serious violent felon, unlawful possession

      of a syringe, two counts of maintaining a common nuisance, possession of

      paraphernalia, and possession of marijuana. Acrey agreed to plead guilty to

      possession of methamphetamine as a Level 3 felony, and the State agreed to

      dismiss the remaining counts and to not seek an habitual enhancement.




      1
          See Ind. Code § 35-48-4-1.1.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2536 | March 6, 2020   Page 2 of 5
      Sentencing was left to the trial court’s discretion, and the trial court sentenced

      Acrey to sixteen years.


                                     Discussion and Decision
[5]   Acrey argues that his sentence is inappropriate. Article 7, Sections 4 and 6 of

      the Indiana Constitution authorize independent appellate review and revision

      of a sentence imposed by the trial court. Roush v. State, 875 N.E.2d 801, 812

      (Ind. Ct. App. 2007). 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 [c]ourt finds that the sentence is inappropriate in light of

      the nature of the offense and the character of the offender.” Acrey bears the

      burden of persuading us that his sentence is inappropriate. Id.


[6]   Acrey’s criminal history dates back to 1960. He was placed in the Indiana Boys

      School five times in five years beginning when he committed auto theft and

      burglary at the age of twelve. As an adult, he has nine felony convictions in

      Indiana, several more in Kentucky, and numerous misdemeanor convictions.

      Acrey has had a serious drug habit for many years and has used

      methamphetamine since 1985. He had treatment opportunities in a therapeutic

      community at New Castle Correctional Facility for fourteen months, but he

      admitted he only used that program to earn a time cut. He continued to use

      drugs while he was in prison, and he admitted using methamphetamine while

      in jail pending trial in this case.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2536 | March 6, 2020   Page 3 of 5
[7]   During the sentencing hearing, the trial court referenced Acrey’s age of seventy-

      one years old, noting that “somebody at that age can control their own

      destiny.” Tr. II at 38. The trial court also noted that he has ill health and is an

      addict. However, the trial court noted:


              I look through this, and there is a long and storied history of
              felonies, executed time, there’s been efforts at probation, there’s
              been efforts at community corrections, there’s been efforts in the
              past with regard to treatment with – at a minimum, within the
              Department of Corrections, all those things did not rehabilitate
              Mr. Acrey, and those things did not stop the current matter that’s
              before the Court right now. Mr. Acrey’s criminal activity far
              outweighs any purported mitigators, and the Court doesn’t
              recognize any mitigators with regard to Mr. Acrey. Mr. Acrey,
              frankly, sir, with your history you’re pretty fortunate to have
              avoided a thirty-year sentence on a level two felony in my
              humble opinion.


      Id. at 39.


[8]   As this court has recognized, the nature of the offense is found in the details

      and circumstances of the commission of the offense and the defendant’s

      participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). Acrey was in

      possession of nearly 400 grams of methamphetamine, many times the amount

      necessary to violate the statute. In addition, Acrey received a significant benefit

      from the plea agreement by having seven charges dismissed and avoiding an

      habitual offender enhancement. Furthermore, Acrey’s character warrants the

      sentence imposed. He has an extensive criminal history and a lengthy pattern

      of drug use without any serious attempt at rehabilitation. Acrey has failed to


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2536 | March 6, 2020   Page 4 of 5
      establish that the sixteen-year sentence was inappropriate in light of either the

      nature of the offense or defendant’s character.


[9]   Affirmed.


      Bailey, J., and Mathias, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2536 | March 6, 2020   Page 5 of 5
