                                                                      FILED
                                                                 Feb 24 2017, 9:13 am

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      P. Stephen Miller                                        Curtis T. Hill, Jr.
      Fort Wayne, Indiana                                      Attorney General of Indiana

                                                               Tyler G. Banks
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Keyshawn D. Sanders,                                     February 24, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               02A04-1608-CR-1903
              v.                                               Appeal from the Allen Superior
                                                               Court
      State of Indiana,                                        The Honorable Frances C. Gull,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               02D05-1602-F3-19



      Najam, Judge.


                                        Statement of the Case
[1]   Keyshawn D. Sanders appeals his sentence after he pleaded guilty to dealing in

      a narcotic drug, as a Level 3 felony, and possession of marijuana, as a Class B



      Court of Appeals of Indiana | Opinion 02A04-1608-CR-1903 | February 24, 2017           Page 1 of 10
      misdemeanor. He purports to raise one issue for our review but actually raises

      the following two issues:


              1.       Whether the trial court abused its discretion in failing to
                       find his youth to be a mitigating factor.


              2.       Whether his sentence is inappropriate in light of the nature
                       of his offenses and his character.


[2]   We hold that the trial court did not abuse its discretion in Sanders’ sentencing.

      And, because Sanders has failed to present authority or analysis with respect to

      whether his sentence is inappropriate in light of the nature of his offenses, we

      hold that he has waived appellate review of the inappropriateness of his

      sentence. However, his waiver notwithstanding, Sanders has failed to persuade

      us that his sentence is inappropriate. Accordingly, we affirm.


                                  Facts and Procedural History
[3]   On February 25, 2016, the State charged Sanders with Level 3 felony dealing in

      cocaine and Class B misdemeanor possession of marijuana. Sanders

      subsequently pleaded guilty to both of those charges. Pursuant to his plea

      agreement, the trial court ordered Sanders to enter into a drug court

      participation agreement. That agreement included various requirements that

      Sanders would have to meet during the term of the drug court program and

      provided that, if Sanders completed those requirements successfully, the State

      would dismiss the underlying charges against him. However, Sanders’

      noncompliance with the conditions of the drug court program would result in a


      Court of Appeals of Indiana | Opinion 02A04-1608-CR-1903 | February 24, 2017   Page 2 of 10
      petition to terminate his participation and subject him to sentencing for the

      underlying offenses.


[4]   Within one month of entering the drug court program, Sanders was dismissed

      from a transitional living house for failing to comply with its rules and

      regulations. He also failed to attend another program that he had been

      instructed to attend. As a result of those violations, the State filed a petition to

      terminate his drug court participation, and Sanders admitted to the State’s

      ensuing allegations that he had violated his participation agreement. As such,

      the trial court revoked Sanders’ participation in the drug court program and set

      the matter for sentencing on the underlying offenses.


[5]   At the time of sentencing, Sanders was twenty years old. The presentence

      investigation report informed the trial court that Sanders’ first encounter with

      the criminal justice system occurred with a juvenile adjudication for possession

      of marijuana, as a Class A misdemeanor if committed by an adult, in February

      2012. The juvenile court placed Sanders on informal adjustment for six

      months, and, after that time had elapsed, he was discharged from probation

      unsuccessfully. During the pendency of that informal adjustment, the juvenile

      court again adjudicated Sanders a delinquent for possession of marijuana, as a

      Class A misdemeanor if committed by an adult, in July 2012. In April 2013,

      the court found Sanders to be a delinquent for committing possession of

      marijuana, which would have been a felony for an adult, and criminal

      conversion, which would have been a Class A misdemeanor, and the court

      placed him on probation. In July 2013, the court modified his placement from

      Court of Appeals of Indiana | Opinion 02A04-1608-CR-1903 | February 24, 2017   Page 3 of 10
      probation to electronic monitoring. In January 2014, the court again modified

      his placement and sent Sanders to the Allen County Juvenile Center. In

      September 2014, Sanders received his first adult convictions, which were two

      counts of possession of marijuana, one as a Class B misdemeanor and one as a

      Class A misdemeanor. The trial court placed Sanders on probation for a year

      as a result of one of those convictions, and the court revoked his probation in

      June 2015.


[6]   In the instant case, the presentence investigation report also stated that, when

      Sanders was asked, he “admitted to his case manager that he does not have a

      substance abuse problem and that he [stated that] . . . he did [have a drug

      problem] during his assessment so that he could get Drug Court. He report[ed]

      that he was only giving partial effort on the program and report[ed] doing the

      minimum in an effort to get by.” Appellant’s App. Vol. II at 52. In his

      testimony at sentencing, Sanders denied trying to manipulate the trial court and

      stated: “I do have a drug problem. I wouldn’t say I’m addicted to drugs. I

      know I can go without using drugs and I took drug court to help me with the

      little drug problem I do have.” Sent. Tr. at 10. The trial court sentenced

      Sanders to the advisory sentence of nine years for his Level 3 felony conviction,

      and it suspended three of those years to probation. The court ordered Sanders

      to serve a concurrent six-month sentence for his misdemeanor conviction. This

      appeal ensued.




      Court of Appeals of Indiana | Opinion 02A04-1608-CR-1903 | February 24, 2017   Page 4 of 10
                                     Discussion and Decision
                            Issue One: Abuse of Discretion in Sentencing

[7]   Sanders asserts that the trial court abused its discretion when it failed to find his

      youth to be a mitigating factor.

              Sentencing decisions rest within the sound discretion of the trial
              court and we review only for an abuse of discretion. Anglemyer v.
              State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875
              N.E.2d 218 (Ind. 2007). An abuse of discretion occurs if the
              decision is clearly against the logic and effect of the facts and
              circumstances before the court or the reasonable, probable, and
              actual deductions drawn therefrom. Id. We review for an abuse
              of discretion the court’s finding of aggravators and mitigators to
              justify a sentence, but we cannot review the relative weight
              assigned to those factors. Id. at 490-491. When reviewing the
              aggravating and mitigating circumstances identified by the trial
              court in its sentencing statement, we will remand only if “the
              record does not support the reasons, or the sentencing statement
              omits reasons that are clearly supported by the record, and
              advanced for consideration, or the reasons given are improper as
              a matter of law.” Id.


      Baumholser v. State, 62 N.E.3d 411, 416 (Ind. Ct. App. 2016), not yet certified.


[8]   As this court has noted previously, “youth is not automatically a significant

      mitigating circumstance.” Smith v. State, 872 N.E.2d 169, 178 (Ind. Ct. App.

      2007), trans. denied. Rather, whether a defendant’s youth is a significant

      mitigating factor is within the trial court’s discretion. Id. Moreover, if the trial

      court does not find youth to be a mitigator, it is under no obligation to explain

      its reasoning. Id. Here, as in Smith, the trial court did not overlook the


      Court of Appeals of Indiana | Opinion 02A04-1608-CR-1903 | February 24, 2017   Page 5 of 10
       defendant’s youth but specifically acknowledged it and chose not to find it as a

       mitigating circumstance. “‘This was the trial court’s call,’” id. (quoting

       Anglemyer, 868 N.E.2d at 493), and Sanders points to no evidence that would

       lead us to believe the trial court’s failure to find youth as a mitigating factor was

       an abuse of the trial court’s discretion.1


                                 Issue Two: Inappropriateness of Sentence

                                                          Waiver


[9]    On appeal, Sanders asserts that his nine-year aggregate sentence is

       inappropriate. Sanders states his issue on appeal as “[w]hether the advisory

       sentence is inappropriate considering the nature of his offenses and his

       character.” Appellant’s Br. at 4. However, he presents no authority or

       argument on the nature of his offense. Instead, he focuses solely on the nature

       of his character.


[10]   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) (alteration original). This

       appellate authority is implemented through Indiana Appellate Rule 7(B). Id.

       Revision of a sentence under Rule 7(B) requires the appellant to demonstrate




       1
         To the extent Sanders asserts that the trial court abused its discretion in the weight it gave to the
       aggravating circumstance of his criminal history and the mitigating circumstances of his guilty plea and his
       remorse for his crime, his assertion is not well taken. A sentencing court cannot abuse its discretion by failing
       to properly weigh aggravating and mitigating factors. Anglemyer, 868 N.E.2d at 490.

       Court of Appeals of Indiana | Opinion 02A04-1608-CR-1903 | February 24, 2017                        Page 6 of 10
       that his sentence is “inappropriate in light of the nature of the offense and the

       character of the offender.” Ind. Appellate Rule 7(B) (emphasis added). That

       language is clear: Rule 7(B) plainly requires, as this court has long

       acknowledged, “the appellant to demonstrate that his sentence is inappropriate

       in light of both the nature of the offenses and his character.” Williams v. State,

       891 N.E.2d 621, 633 (Ind. Ct. App. 2008) (emphasis original to Williams ); see

       also Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013), trans. denied; cf.

       Baumholser, 62 N.E.3d at 418 (“We find nothing in Baumholser’s character,

       beyond the current convictions, to be deplorable. However, to obtain relief,

       Baumholser must demonstrate the sentence is inappropriate in light of both the

       nature of the offense and his character.”) (emphasis in original). Because

       Sanders has failed to present any authority or analysis on the issue of the nature

       of his offenses, he has waived our review of the inappropriateness of his

       sentence.

                                            Waiver Notwithstanding


[11]   Waiver notwithstanding, Sanders has failed to persuade us that his nine-year

       sentence is inappropriate. As stated above, the trial court sentenced Sanders to

       the advisory term of nine years for his Level 3 felony offense. The advisory

       sentence is the starting point the legislature has selected as an appropriate

       sentence for the crime committed. See Carter v. State, 31 N.E.3d 17, 32 (Ind. Ct.

       App. 2015), trans. denied. We also assess the trial court’s recognition or

       nonrecognition of aggravators and mitigators as an initial guide to determining

       whether the sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d

       Court of Appeals of Indiana | Opinion 02A04-1608-CR-1903 | February 24, 2017   Page 7 of 10
       142, 147 (Ind. Ct. App. 2006). However, “a defendant must persuade the

       appellate court that his or her sentence has met th[e] inappropriateness standard

       of review.” Roush, 875 N.E.2d at 812 (alteration original).


[12]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224

       (Ind. 2008). The principal role of appellate review is to attempt to “leaven the

       outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

       end of the day turns on “our sense of the culpability of the defendant, the

       severity of the crime, the damage done to others, and myriad other facts that

       come to light in a given case.” Id. at 1224. The question is not whether another

       sentence is more appropriate, but rather whether the sentence imposed is

       inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).

       Deference to the trial court “prevail[s] unless overcome by compelling evidence

       portraying in a positive light the nature of the offense (such as accompanied by

       restraint, regard, and lack of brutality) and the defendant’s character (such as

       substantial virtuous traits or persistent examples of good character).” Stephenson

       v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[13]   Here, aside from providing no evidence or argument concerning the nature of

       his offense, Sanders has not shown that the sentence was inappropriate in light

       of his character. “When considering the character of the offender, one relevant

       fact is the defendant’s criminal history,” and “[t]he significance of criminal

       history varies based on the gravity, nature, and number of prior offenses in

       Court of Appeals of Indiana | Opinion 02A04-1608-CR-1903 | February 24, 2017   Page 8 of 10
       relation to the current offense.” Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct.

       App. 2015), trans. denied. Moreover, the trial court may consider not only the

       defendant’s adult criminal history but also his juvenile delinquency record in

       determining whether his criminal history is significant. E.g., Rutherford v. State,

       866 N.E.2d 867, 874 (Ind. Ct. App. 2007).


[14]   At sentencing, Sanders was twenty years old with true delinquency

       adjudications for what would have been three Class A misdemeanors and one

       felony if committed by an adult. The juvenile court placed him under its

       supervision in two of those cases and discharged him unsuccessfully in one.

       The court modified his placement to increasingly confining placements twice in

       the other. As an adult, he had accrued two misdemeanor convictions, one

       Class A and one Class B. He was placed on probation as a result of one of

       those convictions, and the court later revoked that probation. Sanders’

       significant juvenile and criminal history reflects poorly on his character.


[15]   Moreover, Sanders’ attempted manipulation of the trial court and disregard for

       the opportunity that the drug court afforded him also reflect poorly on his

       character. See, e.g., Phelps v. State, 969 N.E.2d 1009, 1021 (Ind. Ct. App. 2012)

       (stating that the defendant’s refusal to take advantage of rehabilitative efforts

       offered to him reflected poorly on his character), trans. denied. When asked

       about his lack of progress in drug court, Sanders admitted to a case manager

       that he never took the requirements of the drug court agreement seriously and

       that he had claimed to have a drug problem so that he could be offered the

       opportunity of the drug court. And his lack of effort in that program is evident

       Court of Appeals of Indiana | Opinion 02A04-1608-CR-1903 | February 24, 2017   Page 9 of 10
       from the fact that he violated the drug court agreement within one month of

       entering into it. While at sentencing he attempted to disclaim any attempt at

       manipulation, the trial court was not required to give credit to his self-serving

       justifications at the very moment when sentencing was imminent. Given

       Sanders’ juvenile and adult criminal history and his refusal to take advantage of

       the rehabilitative services offered by drug court, we cannot say his sentence is

       inappropriate.2 As such, we affirm Sanders’ sentence.


[16]   Affirmed.


       Bailey, J., and May, J., concur.




       2
          Sanders also contends that the sentence imposed by the trial court was inappropriate because serving four
       and a half to six years in the Department of Correction may foreclose his future opportunities and harm his
       life situation, while a lesser sentence could allow him to “provide for his dependents” and “accept full
       responsibility for his life and his actions.” Appellant’s Br. at 11. However, as noted above, the question
       under Rule 7(B) is not whether another sentence is more appropriate but, rather, whether the sentence
       imposed is inappropriate. King, 894 N.E.2d at 268.

       Court of Appeals of Indiana | Opinion 02A04-1608-CR-1903 | February 24, 2017                    Page 10 of 10
