MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                      Jun 19 2020, 9:35 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
Erin L. Berger                                           Curtis T. Hill, Jr.
Evansville, Indiana                                      Attorney General of Indiana

                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

John Reynolds,                                           June 19, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2882
        v.                                               Appeal from the Posey Circuit
                                                         Court
State of Indiana,                                        The Honorable Craig S. Goedde,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause Nos.
                                                         65C01-1811-F5-483
                                                         65C01-1904-CM-156



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2882| June 19, 2020                           Page 1 of 7
[1]   John Reynolds appeals his convictions and sentence for possession of

      methamphetamine as a level 5 felony, maintaining a common nuisance as a

      level 6 felony, unlawful possession of a syringe as a level 6 felony, possession of

      marijuana as a class A misdemeanor, possession of paraphernalia as a class C

      misdemeanor, resisting law enforcement as a class A misdemeanor, and

      possession of marijuana as a class B misdemeanor. He asserts the trial court

      erred in accepting his guilty plea and his sentence is inappropriate. We affirm.


                                      Facts and Procedural History

[2]   On November 3, 2018, Reynolds possessed methamphetamine, pure or

      adulterated, having a weight of less than five grams. He maintained a building

      or structure for the unlawful use, manufacture, keeping, sale, or delivery of

      controlled substances or items of drug paraphernalia. He possessed a

      hypodermic syringe or needle with the intent to introduce a controlled

      substance into his body. He also possessed marijuana and an instrument,

      device, or object, that being straws, pipes, and/or grinders, with the intent to

      introduce a controlled substance into his body. On April 11, 2019, Reynolds

      possessed marijuana and resisted, obstructed, or interfered with Indiana State

      Police Officer Russell Werkmeister while he was engaged in his duties as a law

      enforcement officer.


[3]   On November 5, 2018, the State charged Reynolds under cause number 65C01-

      1811-F5-483 (“Cause No. 483”) with: Count I, possession of methamphetamine

      as a level 5 felony; Count II, maintaining a common nuisance as a level 6

      felony; Count III, unlawful possession of a syringe as a level 6 felony; Count
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2882| June 19, 2020   Page 2 of 7
      IV, possession of marijuana as a class A misdemeanor; and Count V,

      possession of paraphernalia as a class C misdemeanor. On April 15, 2019, the

      State charged Reynolds under cause number 65C01-1904-CM-156 (“Cause No.

      156”) with: Count I, resisting law enforcement as a class A misdemeanor; and

      Count II, possession of marijuana as a class B misdemeanor.


[4]   On October 22, 2019, the court held a hearing in Cause Nos. 483 and 156.

      Reynolds’s counsel indicated Reynolds wished to plead guilty without a

      recommendation from the State. Reynolds answered affirmatively when asked

      by the court if he intended to plead guilty without a recommendation. He pled

      guilty as charged and the court found that a factual basis existed.


[5]   On November 19, 2019, the court held a sentencing hearing. Under Cause

      Nos. 483 and 156, it found that Reynolds pled guilty as a mitigating factor and

      found his extensive criminal history and that he committed the present offenses

      while on bond as aggravating factors. Under Cause No. 483, the court

      sentenced Reynolds to five years for Count I, two years for Count II, two years

      for Count III, one year for Count IV, and sixty days for Count V. The court

      ordered that the sentences run concurrent with each other and consecutive to

      the sentence in Cause No. 156. Under Cause No. 156, the court sentenced

      Reynolds to one year for Count I and 180 days for Count II and ordered the

      sentences to be served concurrent with each other.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2882| June 19, 2020   Page 3 of 7
                                                  Discussion

[6]   Reynolds argues that his statements at the guilty plea hearing fail to establish

      his guilt and that he merely pled guilty because he was angry and frustrated by

      the process and the offer made by the State in its sentencing recommendation.

      The State argues that Reynolds forfeited any challenge to his underlying

      convictions on direct appeal because he pled guilty.


[7]   Because Reynolds pled guilty, he cannot challenge the propriety of his

      convictions on direct appeal. See Hayes v. State, 906 N.E.2d 819, 820-821 (Ind.

      2009) (observing that the defendant submitted an “open” guilty plea and

      holding that “he did not (and under Tumulty v. State, [666 N.E.2d 394 (Ind.

      1996),] could not), appeal his convictions”) (footnote omitted); Collins v. State,

      817 N.E.2d 230, 231 (Ind. 2004) (“A person who pleads guilty is not permitted

      to challenge the propriety of that conviction on direct appeal.”); Tumulty, 666

      N.E.2d at 395 (observing that the defendant told the trial court he wished to

      plead guilty to all counts and replied affirmatively when the trial court asked if

      he was leaving sentencing up to the court, and holding that “[o]ne consequence

      of pleading guilty is restriction of the ability to challenge the conviction on

      direct appeal”). Rather, the appropriate forum is post-conviction relief. See Hall

      v. State, 849 N.E.2d 466, 472 (Ind. 2006) (“[B]ecause a conviction imposed as a

      result of a guilty plea is not an issue that is available to a defendant on direct

      appeal, any challenge to a conviction thus imposed must be made through the

      procedure afforded by the Indiana Rules of Procedure for Post-Conviction

      Remedies.”); Tumulty, 666 N.E.2d at 396 (holding that post-conviction relief

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2882| June 19, 2020   Page 4 of 7
       was exactly the vehicle for pursuing the defendant’s claim). Accordingly, we

       dismiss Reynolds’s appeal as it relates to his challenge of his convictions. See

       Crain v. State, 875 N.E.2d 446, 447 (Ind. Ct. App. 2007) (dismissing defendant’s

       appeal because his claim must be brought through a petition for post-conviction

       relief).


[8]    We next turn to whether Reynolds’s sentence is inappropriate in light of the

       nature of the offenses and his character. Reynolds argues that his sentence is

       inappropriate because he pled guilty and is a seventy-year-old man with health

       conditions.


[9]    Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by

       statute if, after due consideration of the trial court’s decision, [we find] that the

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

       of the offender.” Under this rule, the burden is on the defendant to persuade

       the appellate court that his or her sentence is inappropriate. Childress v. State,

       848 N.E.2d 1073, 1080 (Ind. 2006).


[10]   Ind. Code § 35-50-2-6 provides that a person who commits a level 5 felony shall

       be imprisoned for a fixed term of between one and six years, with the advisory

       sentence being three years. Ind. Code § 35-50-2-7 provides that a person who

       commits a level 6 felony shall be imprisoned for a fixed term of between six

       months and two and one-half years, with the advisory sentence being one year.

       A person who commits a class A misdemeanor shall be imprisoned for a fixed

       term of not more than one year. Ind. Code § 35-50-3-2. A person who commits


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2882| June 19, 2020   Page 5 of 7
       a class B misdemeanor shall be imprisoned for a fixed term of not more than

       180 days. Ind. Code § 35-50-3-3. A person who commits a class C

       misdemeanor shall be imprisoned for a fixed term of not more than sixty days.

       Ind. Code § 35-50-3-4.


[11]   Our review of the nature of the offenses reveals that Reynolds maintained a

       building or structure for the unlawful use, manufacture, keeping, sale, or

       delivery of controlled substances or items of drug paraphernalia. He possessed:

       methamphetamine, pure or adulterated, having a weight of less than five grams;

       a hypodermic syringe or needle with the intent to introduce a controlled

       substance into his body; marijuana; and an instrument, device, or object, that

       being straws, pipes, and/or grinders, with the intent to introduce a controlled

       substance into his body. He also possessed marijuana and resisted, obstructed,

       or interfered with Indiana State Police Officer Werkmeister while he was

       engaged in his duties as a law enforcement officer.


[12]   Our review of the character of the offender reveals that Reynolds pled guilty as

       charged. The presentence investigation report (“PSI”) reveals that Reynolds

       was born in 1948, suffers from a nerve issue that causes facial pain, had back

       surgery in 2014 which did not resolve the problem, still is in pain, and suffered

       head trauma when he was eight years old resulting in a lack of grip strength in

       his left hand. As a juvenile, Reynolds received his first charge in 1964 at the

       age of fifteen “when he was charged with a misdemeanor and a felony, and was

       ultimately sentenced to serve time in Juvenile Hall.” Appellant’s Appendix

       Volume II at 115. During the next two years, Reynolds “received two

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2882| June 19, 2020   Page 6 of 7
       additional misdemeanor charges and three additional felony charges.” Id.

       According to the PSI, as an adult, Reynolds had been convicted of second

       degree murder and “an additional eight felonies (five of his prior felony charges

       have unknown outcomes, so he potentially has up to thirteen prior felony

       convictions).” Id. He has “one known prior misdemeanor conviction and three

       misdemeanor charges with unknown outcomes.” Id. The PSI indicates he had

       previously been sentenced to probation on three occasions and revoked once,

       and has been on parole three times and “committed a new offense while out on

       bond in this case.” Id. at 116. The PSI also indicates that Reynolds stated he

       first tried methamphetamine at the age of twenty, stated that he used it on a

       regular basis prior to his incarceration in 2003, and denied using it on a regular

       basis since he was released in 2014. The PSI further provides that Reynolds’s

       overall risk assessment score using the Indiana Risk Assessment System places

       him in the very high risk to reoffend category.


[13]   After due consideration, we conclude that Reynolds has not sustained his

       burden of establishing that his aggregate sentence of six years for his seven

       convictions is inappropriate in light of the nature of the offenses and his

       character.


[14]   For the foregoing reasons, we affirm Reynolds’s sentence.


[15]   Affirmed.


       Najam, J., and Kirsch, J., concur.



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