MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Jun 27 2018, 10:38 am

regarded as precedent or cited before any                                  CLERK
                                                                       Indiana Supreme Court
court except for the purpose of establishing                              Court of Appeals
                                                                            and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stanley L. Campbell                                      Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Lee M. Stoy, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David W. Gilliam,                                        June 27, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-310
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D05-1603-F5-67



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-310| June 27, 2018                    Page 1 of 6
                                Case Summary and Issue
[1]   David Gilliam pleaded guilty to three counts of dealing in cocaine, all Level 5

      felonies, and one count of maintaining a common nuisance, a Level 6 felony.

      The trial court sentenced Gilliam to an aggregate sentence of three years in the

      Indiana Department of Correction. Gilliam appeals, raising the sole issue of

      whether his sentence is inappropriate in light of the nature of his offenses and

      his character. Concluding his sentence is not inappropriate, we affirm.



                            Facts and Procedural History
[2]   In March of 2016, the State charged Gilliam with three counts of dealing in

      cocaine, all Level 5 felonies, and one count of maintaining a common nuisance,

      a Level 6 felony. In May, Gilliam pleaded guilty to all four counts. The trial

      court took Gilliam’s plea under advisement and placed Gilliam in the Allen

      County Drug Court program. Pursuant to his agreement to participate in the

      program, if Gilliam completed his obligations, the State would dismiss all

      charges.


[3]   For over a year after his entry in the drug court program, Gilliam appeared to

      be a successful participant. He consistently had negative drug screens,

      participated in community service, attended all appointments, and paid all of

      his fees. Gilliam had only a few minor violations for which he performed

      additional community service. In December of 2017, the Allen County Drug

      Court Case Manager filed a petition to terminate Gilliam from the drug court


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-310| June 27, 2018   Page 2 of 6
      program for allegedly engaging in a drug transaction with a confidential

      informant. Gilliam admitted to the violation.


[4]   On January 4, 2018, the trial court entered judgment of conviction on all four

      counts. The trial court sentenced Gilliam to three years for each conviction of

      dealing in cocaine and two years for his conviction of maintaining a common

      nuisance. The trial court ordered all counts to be served concurrently for an

      aggregate sentence of three years. Gilliam now appeals.



                                 Discussion and Decision
[5]   The sole issue raised by Gilliam on appeal is whether his sentence is

      inappropriate in light of the nature of the offense and his character. In support

      of his argument, Gilliam points to his positive efforts in the drug court program,

      the fact this was his first felony conviction, and the fact this was his first drug-

      related conviction. Thus, Gilliam “believes that a conviction of one (1) year on

      each of the Counts would have been an appropriate sentence.” Brief of

      Appellant at 13.


[6]   The Indiana Constitution grants this court the authority to review and revise a

      lawfully imposed sentence, “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.” Ind. Appellate Rule 7(B)

      (implementing Ind. Const. Art. 7, § 6). In reviewing a sentence, our principal

      role is to leaven the outliers rather than necessarily achieve what is perceived as


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-310| June 27, 2018   Page 3 of 6
      the correct result. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “We do

      not look to determine if the sentence was appropriate; instead we look to make

      sure the sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876

      (Ind. 2012). The defendant bears the burden to demonstrate the sentence is

      inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on

      reh’g, 875 N.E.2d 218.


[7]   We first observe that “the advisory sentence is the starting point the Legislature

      selected as appropriate for the crime committed.” Pierce v. State, 949 N.E.2d

      349, 352 (Ind. 2011). The sentencing range for a Level 5 felony is between one

      and six years, with an advisory sentence of three years. Ind. Code § 35-50-2-

      6(b). Gilliam received the advisory sentence for each Level 5 felony. The

      sentencing range for a Level 6 felony is between six months and two and one-

      half years, with the advisory sentence being one year. Ind. Code § 35-50-2-7(b).

      Gilliam received a two-year sentence for his Level 6 felony conviction of

      maintaining a common nuisance. However, this above-advisory sentence runs

      concurrent with his three-year term for dealing in cocaine. See Pierce v. State,

      949 N.E.2d 349, 352 (Ind. 2011) (recognizing appellate review should focus on

      the “forest”—the aggregate sentence—rather than the “trees”—consecutive or

      concurrent, number of counts, or length of the sentence of any individual

      count).


[8]   Our review of the nature of the offenses does not reveal anything particularly

      egregious. The probable cause affidavit reveals that on three separate occasions



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-310| June 27, 2018   Page 4 of 6
       an undercover officer and confidential informant purchased cocaine from

       Gilliam. For these crimes, Gilliam received the advisory sentence.


[9]    Turning to Gilliam’s character, it is clear he has not led a law-abiding life.

       Gilliam’s pre-sentence investigation report reveals seventeen misdemeanor

       convictions and multiple juvenile adjudications. Although Gilliam has had no

       drug-related convictions since 1980, his constant contacts with law enforcement

       do not speak highly of his character. More significantly, we are troubled by the

       fact Gilliam squandered an opportunity to have the charges against him

       dismissed had he followed his obligations under the drug court program.

       Gilliam’s inability to remedy his criminal behavior weighs heavily on his

       character and, overall, we are unpersuaded his efforts in the drug court program

       and criminal history require a reduction in his sentence.


[10]   Although Gilliam “believes . . . one (1) year on each of the Counts would have

       been an appropriate sentence[,]” Br. of Appellant at 13, it is not this court’s

       duty to determine the “appropriate” sentence; our mandate is to determine

       whether the given sentence is inappropriate. Conley, 972 N.E.2d at 876. In this

       case, after reviewing the nature of the offenses and Gilliam’s character, we

       conclude Gilliam’s sentence is not inappropriate.



                                               Conclusion
[11]   Gilliam’s sentence is not inappropriate in light of the nature of the offenses and

       his character. The judgment of the trial court is therefore affirmed.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-310| June 27, 2018   Page 5 of 6
[12]   Affirmed.


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-310| June 27, 2018   Page 6 of 6
