MEMORANDUM DECISION
                                                                  Jun 30 2015, 7:42 am

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any 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
Laura Raiman                                             Gregory F. Zoeller
Alcorn Goering & Sage, LLP                               Attorney General of Indiana
Madison, Indiana
                                                         Karl M. Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Michael A. Powers,                                       June 30, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         03A01-1410-CR-450
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable James D. Worton,
Appellee-Plaintiff.                                      Judge

                                                         Cause Nos. 03D01-1309-FB-4921,
                                                         03D01-1309-FD-5043, and
                                                         03D01-1310-FB-5587




Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A01-1410-CR-450| June 30, 2015       Page 1 of 7
                                       Statement of the Case
[1]   In this consolidated appeal, Michael Powers appeals his sentence following his

      conviction for dealing in methamphetamine, as a Class B felony, in Cause No.

      03D01-1310-FB-5587 (“FB-5587”), and the revocation of his probation in

      Cause No. 03D01-1309-FB-4921 (“FB-4921). Powers presents two issues for

      our review:


              1. Whether his sentence in FB-5587 is inappropriate in light of
              the nature of the offense and his character.

              2. Whether the trial court abused its discretion when it ordered
              him to serve the balance of his suspended sentence after revoking
              his probation in FB-4921.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On October 12, 2009, in FB-4921, the State charged Powers with distribution of

      methamphetamine, as a Class B felony, and possession of chemical reagents or

      precursors with intent to manufacture a controlled substance, as a Class D

      felony. On August 3, 2010, Powers pleaded guilty to distribution of

      methamphetamine, as a Class B felony. The trial court sentenced Powers to

      twelve years in the Indiana Department of Correction. The court suspended

      Powers’ sentence in FB-4921 to the Bartholomew County Forensic Diversion

      Program, with five years’ probation.




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[4]   On September 5, 2013, the State filed a petition to revoke probation alleging

      Powers had violated probation by committing additional offenses. In

      particular, on September 17, in Cause No. 03D01-1309-FD-5043 (“FD-5043”),

      the State charged Powers with possession of methamphetamine, as a Class D

      felony, and possession of chemical reagents or precursors with intent to

      manufacture a controlled substance, as a Class D felony. In addition, on

      October 16, in FB-5587, the State charged Powers with two counts of

      distributing methamphetamine. Powers pleaded guilty to one count of

      distribution of methamphetamine in FB-5587, and Powers pleaded guilty to the

      violation of his probation in FB-4921.


[5]   In FB-5587, the trial court sentenced Powers to sixteen years for distributing

      methamphetamine, as a Class B felony. And the State revoked Powers’

      probation and reinstated the suspended twelve year sentence in FB-4921. The

      trial court ordered that the sentences in both causes be served consecutively.

      This appeal ensued.


                                     Discussion and Decision
                                  Issue One: Inappropriate Sentence

[6]   Powers first contends that his sentence in FB-5587 is inappropriate in light of

      the nature of the offense and his character. The trial court imposed a sixteen-

      year sentence. The sentencing range for a Class B felony is six years to twenty

      years, with the advisory sentence being ten years. Ind. Code § 35-50-2-5.




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[7]   Although a trial court may have acted within its lawful discretion in

      determining a sentence, Article VII, 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

      Appellate Rule 7(B) requires the appellant to demonstrate that his sentence is

      inappropriate in light of the nature of his offenses and his character. See App.

      R. 7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We

      assess the trial court’s recognition or non-recognition of aggravators and

      mitigators as an initial guide to determining whether the sentence imposed was

      inappropriate. Gibson v. State, 856 N.E.2d 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).


[8]   Our supreme court has stated that “sentencing is principally a discretionary

      function in which the trial court’s judgment should receive considerable

      deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). Indiana’s

      flexible sentencing scheme allows trial courts to tailor an appropriate sentence

      to the circumstances presented. See id. at 1224. 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




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       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.


[9]    Powers first contends that his sentence is inappropriate in light of the nature of

       the offense. While we agree with Powers that there is nothing particularly

       aggravating about the nature of his offense, that is not conclusive to our

       analysis. Rather, we consider both the nature of the offense and the defendant’s

       character. App. R. 7(B).


[10]   Powers also contends that his sentence is inappropriate in light of his character.

       Powers acknowledges that he violated his probation when he distributed

       methamphetamine in July 2013. But Powers contends that most of his criminal

       history is relatively minor given that his history consists of offenses that are

       unrelated to the distribution of methamphetamine. Powers further contends

       that his criminal history is not aggravating because his previous offenses were

       committed more than ten years prior.


[11]   We are not persuaded. Powers committed the offense in FB-5587 while on

       probation, which is a substantial consideration in the assessment of his

       character. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 2008) (citing Ryle v.

       State, 842 N.E.2d 320, 325 n. 5 (Ind. 2005)). Further, Powers has a long history

       of substance abuse, and he admitted to having used methamphetamine and

       cocaine on the day of his arrest in FB-4921. Powers was also found to be at a

       very high risk to reoffend under the Indiana Risk Assessment System. We




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       cannot say that Powers’ sixteen-year sentence is inappropriate in light of the

       nature of the offense and his character.


                       Issue Two: Abuse of Discretion in Imposing Sentence

[12]   Powers also contends that the trial court abused its discretion when it reinstated

       the balance of his twelve-year suspended sentence after revoking his probation.

       Probation revocation is a two-step process. Alford v. State, 965 N.E.2d 133, 134

       (Ind. Ct. App. 2012). First the court must determine whether a violation of a

       condition of probation has occurred. Id. Upon determining that a violation of

       a condition of probation has occurred, a trial court may impose one or more of

       the following sanctions:

               (1) Continue the person on probation, with or without modifying
               or enlarging the conditions.

               (2) Extend the persons probationary period for not more than one
               year beyond the original probationary period.

               (3) Order execution on all or part of the sentence that was
               suspended at the time of initial sentencing.


       Ind. Code § 35-38-2-3(g). We review a trial court’s sentencing decisions for

       probation violations for an abuse of discretion. Alford, 965 N.E.2d at 135. An

       abuse of discretion occurs where the decision is clearly against the logic and

       effect of the facts and circumstances. Id.


[13]   Powers contends that the evidence supports a lesser sanction for his probation

       violation. In particular, Powers references his completion of the Bartholomew


       Court of Appeals of Indiana | Memorandum Decision 03A01-1410-CR-450| June 30, 2015   Page 6 of 7
       County jail additions program, his family and community support, and his

       “candid” confession to his probation violation. Appellant’s Br. 9. But Powers

       ignores the evidence that he was given leniency after his first conviction for

       distribution of methamphetamine but then violated his probation by again

       distributing methamphetamine. We hold that the trial court did not abuse its

       discretion when it reinstated Powers’ twelve-year suspended sentence.


[14]   Affirmed.


       Baker, J., and Friedlander, J., concur.




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