MEMORANDUM DECISION                                                          FILED
                                                                        Apr 12 2017, 10:51 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        CLERK
                                                                         Indiana Supreme Court
regarded as precedent or cited before any                                   Court of Appeals
                                                                              and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Gerald Lynn West,                                        April 12, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A04-1611-CR-2535
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable Michael J. Lewis,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         84D06-1510-F2-2616



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2535 | April 12, 2017            Page 1 of 6
                                                Case Summary
[1]   Gerald Lynn West (“West”) challenges his aggregate thirty-year sentence for

      Dealing in Methamphetamine, as a Level 2 felony,1 Maintaining a Common

      Nuisance, as a Level 6 felony,2 Battery, as a Level 5 felony,3 and Possession of

      Marijuana, as a Class A misdemeanor.4 He presents the issue of whether his

      sentence is inappropriate. We affirm.



                                 Facts and Procedural History
[2]   On October 13, 2015, Terre Haute Police Department Officer Daniel LaFave

      (“Officer LaFave”) initiated a traffic stop of a van driven by West, attached to a

      trailer without operational brake lights. West produced a driver’s license but

      was unable or unwilling to produce the vehicle’s registration and his proof of

      insurance. West also denied knowing the name of his insurance provider.

      Officer LaFave asked that West and his juvenile companion exit the vehicle.


[3]   A canine police unit arrived, and the canine alerted to the presence of drugs.

      As Officer Jeffrey Pupilli approached West to place him in handcuffs, West

      turned and punched the officer in the face. West began to run away; he fell to




      1
          Ind. Code § 35-48-4-1.1(a)(2).
      2
          I.C. § 35-48-4-13(b)(2)(A) [now repealed and re-codified at I.C. § 35-45-1-5].
      3
          I.C. § 35-42-2-1.
      4
          I.C. § 35-48-4-11(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2535 | April 12, 2017   Page 2 of 6
      the ground after an officer deployed his Taser. West was eventually subdued

      and arrested by four police officers.


[4]   After the struggle, West’s van was searched. Inside the van was a large

      insulated bag containing two smaller bags. Inside the smaller bags officers

      found 357.38 grams of crystal methamphetamine. The officers also seized 2.58

      grams of marijuana, digital scales with white residue, and a pipe.


[5]   West was charged with Dealing in Methamphetamine, Possession of

      Methamphetamine, Maintaining a Common Nuisance, two counts of Resisting

      Law Enforcement, Battery, and Possession of Marijuana. A jury convicted him

      as charged. Due to double jeopardy concerns, the trial court entered judgments

      of conviction and sentences upon only four counts. For Dealing in

      Methamphetamine, West received a sentence of thirty years. He received

      concurrent sentences of two years for Maintaining a Common Nuisance, three

      years for Battery, and 180 days for Possession of Marijuana. This appeal

      ensued.



                                 Discussion and Decision
[6]   West requests that we revise his sentence pursuant to Indiana Appellate Rule

      7(B). The authority granted to this Court by Article 7, § 6 of the Indiana

      Constitution permitting appellate review and revision of criminal sentences is

      implemented through Appellate Rule 7(B), which provides: “The Court may

      revise a sentence authorized by statute if, after due consideration of the trial


      Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2535 | April 12, 2017   Page 3 of 6
      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.” Under this rule, and as

      interpreted by case law, appellate courts may revise a sentence after due

      consideration of the trial court’s decision, if the sentence is found to be

      inappropriate in light of the nature of the offense and the character of the

      offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,

      798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to

      attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.


[7]   West was convicted of Level 2, Level 5, and Level 6 felonies. He faced a

      sentencing range of ten to thirty years, with 17 and 1/2 years as the advisory

      sentence; one to six years, with three years as the advisory sentence; and 6

      months to 2 and 1/2 years, with one year as the advisory sentence, respectively.

      I.C. §§ 35-50-2-4.5, 35-50-2-6, 35-50-2-7. Upon conviction of a Class A

      misdemeanor, West faced a sentence of up to one year in prison. I.C. § 35-50-3-

      2. West’s thirty-year, three-year, two-year, and 180 day sentences are

      concurrent, yielding an aggregate sentence for all offenses equal to the

      maximum term for a Level 2 felony.


[8]   As for the nature of West’s offenses, he possessed 357.38 grams of crystal

      methamphetamine and 2.58 grams of marijuana. The offense of possession of

      methamphetamine is elevated to a Level 2 felony upon possession of 10 or

      more grams. West possessed an amount approximately 35 times this threshold

      amount. He struck a police officer and fled. Four police officers were required



      Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2535 | April 12, 2017   Page 4 of 6
       to subdue and arrest him. West’s conduct took place in the presence of a

       juvenile. These circumstances do not militate toward a lesser sentence.


[9]    Regarding West’s character, he has a lengthy criminal history. In 1989, he was

       sentenced to six and one-half years’ imprisonment in a federal prison for

       distributing cocaine within 100 feet of a school and possession of a firearm. In

       2000, West was convicted of Dealing in Cocaine and Dealing in a Schedule II

       Controlled Substance. His thirty-year sentence was modified to twenty years,

       and he was released from prison in 2007. In 2014, West was charged with

       Dealing in Methamphetamine and Resisting Law Enforcement. The charges

       were dismissed in 2015, after West obtained an order suppressing evidence. 5


[10]   Awaiting trial for the instant charges, West wrote a letter to his wife suggesting

       that she participate in putting forth one of two scenarios in which West would

       not be culpable for possession of methamphetamine. He suggested that a

       juvenile admit to stealing the drugs. Alternatively, he suggested that his wife

       should claim: she wanted rid of West, she had an affair with a police officer,

       and she and the police officer planted evidence to frame West. West’s criminal

       history and conduct during incarceration do not speak well of his character.




       5
         A record of arrest, without more, does not establish the historical fact that a defendant committed a
       criminal offense, and thus the arrest is not evidence of a criminal history. Cotto v. State, 829 N.E.2d 520, 526
       (Ind. 2005). However, a record of arrest may reveal that a defendant has not been deterred after subjection to
       the police authority of the state and the information may be relevant to the trial court’s assessment of a
       defendant’s character. Id.

       Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2535 | April 12, 2017               Page 5 of 6
[11]   West has failed to benefit from prior opportunities for rehabilitation. He has

       not persuaded us that his thirty-year sentence is inappropriate.


[12]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2535 | April 12, 2017   Page 6 of 6
