MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Sep 30 2019, 11:13 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
Zachary A. Witte                                         Curtis T. Hill, Jr.
Locke & Witte                                            Attorney General of Indiana
Fort Wayne, Indiana
                                                         Courtney Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert S. Potter, II,                                    September 30, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1040
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D05-1901-F6-97



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1040 | September 30, 2019              Page 1 of 8
                                       Statement of the Case
[1]   Robert S. Potter, II (“Potter”) appeals following his guilty plea to Level 6 felony

      unlawful possession of a syringe1 and Class B misdemeanor possession of

      marijuana.2 He argues that the two-year sentence imposed for his Level 6

      felony conviction is inappropriate. Concluding that Potter has failed to show

      that his sentence is inappropriate, we affirm his sentence.


[2]   We affirm.


                                                     Issue
                 Whether Potter’s sentence is inappropriate pursuant to Indiana
                 Appellate Rule 7(B).


                                                     Facts
[3]   In December 2018, the State charged Potter with Level 6 felony unlawful

      possession of a syringe, Class A misdemeanor resisting law enforcement, Class

      C misdemeanor possession of paraphernalia in Cause 02D05-1812-F6-1515

      (“Cause F6-1515”). Potter was released on bond from Cause F6-1515 on

      December 15, 2018.


[4]   Approximately one month later, Potter—while still out on bond—committed

      the crimes alleged in this current case, Cause 02D05-1901-F6-97 (“Cause F6-




      1
          IND. CODE § 16-42-19-18.
      2
          IND. CODE § 35-48-4-11.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1040 | September 30, 2019   Page 2 of 8
      97”). Specifically, on January 22, 2019, the State charged Potter with Level 6

      felony unlawful possession of a syringe and Class B misdemeanor possession of

      marijuana. Two days later, the State charged Potter with Level 6 felony

      unlawful possession of a syringe in Cause 02D05-1901-F6-95 (“Cause F6-95”).


[5]   On February 4, 2019, Potter pled guilty as charged in Cause F6-97, Cause F6-

      1515, and Cause F6-95.3 The trial court took his pleas under advisement and

      placed Potter into the Allen County Drug Court Treatment Program (“drug

      court program”). On February 25, 2019, Potter failed to appear in court for a

      drug court program compliance hearing. Thereafter, the trial court revoked

      Potter’s bond and issued a warrant for his arrest. Potter was also terminated

      from the drug court program.


[6]   In April 2019, the trial court held a joint sentencing hearing for Cause F6-97,

      Cause F6-1515, and Cause F6-95. At the time of the sentencing hearing, Potter

      had a pending cause, Cause 02D04-1903-F6-266, in which he had been charged

      with Level 6 felony unlawful possession of a syringe, Class A misdemeanor

      resisting law enforcement, Class B misdemeanor false informing. He also had

      an active warrant from Tennessee for probation violations in three separate

      causes. Potter admitted that he was addicted to drugs and that he had used

      heroin and methamphetamine.




      3
       Potter did not include a copy of his plea agreement in his Appendix. Additionally, the transcript of Potter’s
      guilty plea hearing is not included in the record on appeal because he did not request transcription of it when
      he filed his notice of appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1040 | September 30, 2019                  Page 3 of 8
[7]   The presentence investigation report (“PSI”) revealed that thirty-six-year-old

      Potter has a criminal history dating back to 2001 when he was nineteen years

      old, and it includes thirty-five convictions spanning three states. His felony

      convictions include the following: aggravated assault with a deadly weapon

      (2002 in Florida); possession of cocaine (2007 in Florida); drug possession of a

      controlled substance (2009 in Florida); sale of a schedule II drug (2010 in

      Tennessee); and possession with intent to sell (2010 in Tennessee). Potter also

      amassed the following misdemeanor convictions: theft (2001 in Florida);

      culpable negligence with a motor vehicle (2002 in Florida); illegal possession of

      alcohol by a minor (2002 in Florida); resisting/obstructing an officer (2002 in

      Florida); criminal impersonation (2004 in Tennessee); reckless driving (2004 in

      Florida); evading arrest (2004 in Tennessee); theft by shoplifting (2006 in

      Tennessee); possession of drug paraphernalia (2006 in Tennessee); theft (2007

      in Florida); operating while driver’s license suspended (2007 in Florida); three

      different convictions for possession of drug paraphernalia (all three in 2007 in

      Florida); driver’s license suspended/revoked (2007 in Florida); theft (2008 in

      Florida); loitering (2009 in Florida); theft (2010 in Tennessee); invasion of

      privacy (2010 in Indiana); domestic assault (2010 in Tennessee); simple

      possession/casual exchange (2010 in Tennessee); possession of drug

      paraphernalia (2010 in Tennessee); driving while suspended (2010 in

      Tennessee); theft (2012 in Tennessee); possession of a legend drug (2012 in

      Tennessee); driving while license is cancelled (2012 in Tennessee); criminal

      trespass (2014 in Tennessee); and aggravated criminal trespass (2014 in

      Tennessee).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1040 | September 30, 2019   Page 4 of 8
[8]   When sentencing Potter, the trial court found his guilty plea, acceptance of

      responsibility, and remorse to be mitigating circumstances. When discussing

      aggravating circumstances, the trial court stated:


              The Court does find as an aggravating circumstance your prior
              criminal record with failed efforts at rehabilitation covering a
              period of time from 2001 to 2018; you are a multi-state offender
              in Indiana, Tennessee, and Florida; you have 29 misdemeanor
              convictions and six prior felony convictions. You’ve been given
              short jail sentences, longer jail sentences, active adult probation,
              community control, unsupervised probation, multiple attempts at
              treatment, and then the Drug Court Program. In [C]ause F6-97,
              you were on bond at the time you committed that offense. I note
              that you’ve got active warrants pending in Tennessee for
              probation violations and there are pending charges filed here in
              Allen Superior Court. . . . I agree with your attorney . . . that it’s
              a miracle that you’re here. You are 36 years old; according to
              your letter, you have overdosed five times, three of which
              required professional medical intervention, one with
              hospitalization. We take folks in the Drug Court Program, Mr.
              Potter, as we find them. Unfortunately, we found you, you came
              into the Drug Court Program, and you were not ready for Drug
              Court, and that’s really unfortunate because that was really your
              best opportunity to get clean and stay clean, and I hope you’re
              ready now. I mean, you weren’t ready when you started. I think
              your attorney is correct in saying you need to sit down for a real
              long time and let recovery take over your life, because if it
              doesn’t, Robert, I don’t want to read your name in the obituaries
              and that’s where it’s gonna end up if you cannot get this under
              control. You have the ability to do that. You’re not a failure.


      (Tr. Vol. 2 at 9-10). For Cause F6-97, the cause on appeal, the trial court

      imposed concurrent terms of two (2) years for Potter’s Level 6 felony unlawful

      possession of a syringe conviction and 180 days for his Class B misdemeanor

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1040 | September 30, 2019   Page 5 of 8
       possession of marijuana conviction.4 The trial court also recommended that

       Potter be placed in the Recovery While Incarcerated program. Potter now

       appeals.5


                                                      Decision
[9]    Potter argues only that his sentence for his Level 6 felony unlawful possession

       of a syringe is inappropriate. He asks this Court to decrease his Level 6 felony

       sentence to a term of one year.


[10]   We may revise a sentence if it is inappropriate in light of the nature of the

       offense and the character of the offender. Ind. Appellate Rule 7(B). The

       defendant has the burden of persuading us that his sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a

       Rule 7(B) review “should be to attempt to leaven the outliers, and identify some

       guiding principles for trial courts and those charged with improvement of the

       sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

       Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “Appellate Rule 7(B)

       analysis is not to determine whether another sentence is more appropriate but




       4
         In Cause F6-1515, the trial court imposed concurrent terms of two (2) years for Potter’s Level 6 felony
       unlawful possession of a syringe conviction, one (1) year for his Class A misdemeanor resisting law
       enforcement conviction, and sixty (60) days for his Class C misdemeanor possession of paraphernalia
       conviction. The trial court ordered that Potter’s sentence in Cause F6-1515 be served consecutively to his
       sentence in Cause F6-97. For Cause F6-95, the trial court imposed a two (2) year sentence for Potter’s Level
       6 felony unlawful possession of a syringe conviction and ordered it to be served concurrently to Cause F6-97.
       5
         Potter has also filed an appeal of his sentence in Cause F6-1515. The appellate cause number for that
       appeal is 19A-CR-1050, and a memorandum decision in that appellate cause is being handed down on the
       same day as this current appeal.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1040 | September 30, 2019                Page 6 of 8
       rather whether the sentence imposed is inappropriate.” Conley v. State, 972

       N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted),

       reh’g denied.


[11]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence “is the starting point the Legislature has selected as an

       appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.

       Here, Potter entered a guilty plea and was convicted of Level 6 felony unlawful

       possession of a syringe and Class B misdemeanor possession of marijuana. A

       Level 6 felony has a sentencing range of six (6) months to two and one-half

       (2½) years with an advisory sentence of one (1) year. I.C. § 35-50-2-7(b). The

       trial court imposed a sentence of two (2) years for Potter’s Level 6 felony

       conviction.6 Thus, the trial court imposed a sentence below the maximum

       allowed under the statute. Additionally, the trial court recommended that

       Potter be placed in a drug treatment program while incarcerated.


[12]   Turning first to the nature of Potter’s unlawful possession of a syringe offense,

       we note that the probable cause affidavit attached to the PSI indicates that

       Potter, who had a suspended Florida driver’s license, was driving a vehicle

       without lights at 1:00 a.m. when the police pulled him over for a traffic stop.

       The officers were familiar with Potter from prior dealings, and they used

       caution because they knew that he carried a needle. After confirming that



       6
        The trial court also imposed a concurrent sentence of 180 days for his Class B misdemeanor conviction, but
       he does not challenge this sentence as inappropriate.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1040 | September 30, 2019              Page 7 of 8
       Potter had three active warrants, the officers removed him from his car and

       secured him. Potter told the officer that he had syringes that he was planning to

       use for heroin. He also told the officer that he had a drug addiction.


[13]   Turning to Potter’s character, we note that his poor character is revealed by an

       extensive criminal history that spans decades and includes multiple probation

       revocations. His criminal history includes twenty-nine misdemeanor and six

       felony convictions. Potter was convicted of Level 6 felony unlawful possession

       of a syringe in each of the three causes involved in his sentencing hearing, and,

       at the time of sentencing, he had a pending charge for Level 6 felony unlawful

       possession of a syringe conviction in another cause. Potter admitted that he

       was addicted to drugs. Additionally, the PSI shows that Potter, during various

       periods of his life, has used alcohol, marijuana, acid, ecstasy, cocaine, heroin,

       and methamphetamine. Indeed, his use of many of these drugs included daily

       use for multiple years. The trial court gave Potter the opportunity to participate

       in the drug court program, but he squandered that chance. Potter’s criminal

       history and current offenses show that he has a disregard for the law.


[14]   Potter has not persuaded us that his two-year sentence for his Level 6 felony

       unlawful possession of a syringe conviction is inappropriate. Therefore, we

       affirm the sentence imposed by the trial court.


[15]   Affirmed.


       Robb, J., and Mathias, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1040 | September 30, 2019   Page 8 of 8
