MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                        FILED
regarded as precedent or cited before any                          Oct 20 2016, 10:02 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ana M. Quirk                                             Gregory F. Zoeller
Muncie, Indiana                                          Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dyshaun Tyrell Elliott,                                  October 20, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A04-1603-CR-560
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Linda Ralu Wolf,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         18C03-1406-FA-5



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A04-1603-CR-560 | October 20, 2016      Page 1 of 6
                                                Case Summary
[1]   Dyshaun Tyrell Elliott (“Elliott”) challenges the twelve-year sentence imposed

      upon his plea of guilty to Dealing in Cocaine, as a Class B felony. 1 He presents

      the sole issue of whether the trial court abused its sentencing discretion by

      recognizing improper aggravating circumstances. We affirm.



                                   Facts and Procedural History
[2]   On June 10, 2014, the State charged Elliott with three counts of Dealing in

      Cocaine, one as a Class A felony, and two as Class B felonies, and one count of

      Maintaining a Common Nuisance, as a Class D felony. 2 On December 17,

      2015, pursuant to a plea agreement with the State, Elliott pled guilty to one

      count of Dealing in Cocaine, as a Class B felony, and the other charges were

      dismissed. Sentencing was left to the discretion of the trial court. At the guilty

      plea hearing, Elliott admitted that he had, on June 3, 2014, delivered cocaine in

      Delaware County, Indiana.


[3]   On February 15, 2016, the trial court sentenced Elliott to twelve years

      imprisonment, with two years suspended to probation. This appeal ensued.



                                      Discussion and Decision


      1
          Ind. Code § 35-48-4-1.
      2
          I.C. § 35-48-4-13 [repealed and re-codified at I.C. § 35-45-1-5.]


      Court of Appeals of Indiana | Memorandum Decision 18A04-1603-CR-560 | October 20, 2016   Page 2 of 6
[4]   Indiana Code Section 35-50-2-5 provides that a person convicted of a Class B

      felony faces a sentencing range of six to twenty years, with the advisory sentence

      being ten years. In imposing the twelve-year sentence upon Elliott, the trial court

      recognized as mitigating circumstances: Elliott’s guilty plea, family support,

      remorse, and undue hardship to his children. The trial court recognized as

      aggravators: Elliott’s juvenile adjudications, substance abuse, conduct awaiting

      trial (including more than 30 violations of rules of incarceration and the

      revocation of pre-trial home detention), the care and planning involved in the

      crime, the failure of prior rehabilitative efforts, and the amount of cocaine

      involved, 21 grams. Elliott argues that the trial court improperly considered

      dismissed charges, juvenile adjudications, and the degree of care and planning

      involved.


[5]   “So long as the sentence is within the statutory range, it is subject to review

      only for abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

      2007), clarified on other grounds, 875 N.E.2d 218 (Ind. 2007). This includes the

      finding of an aggravating circumstance and the omission to find a proffered

      mitigating circumstance. Id. at 490-91. When imposing a sentence for a felony,

      the trial court must enter “a sentencing statement that includes a reasonably

      detailed recitation of its reasons for imposing a particular sentence.” Id. at 491.


[6]   The trial court’s reasons must be supported by the record and must not be

      improper as a matter of law. Id. However, a trial court’s sentencing order may

      no longer be challenged as reflecting an improper weighing of sentencing factors.

      Id. A trial court abuses its discretion if its reasons for imposing a particular

      Court of Appeals of Indiana | Memorandum Decision 18A04-1603-CR-560 | October 20, 2016   Page 3 of 6
      sentence are clearly against the logic and effect of the facts and circumstances

      before the court, or the reasonable, probable, and actual deductions to be drawn

      therefrom. Hollin v. State, 877 N.E.2d 462, 464 (Ind. 2007).


[7]   Elliott notes that the Pre-Sentence Investigation Report listed as “present

      offenses” the dismissed Counts 1, 3, and 4. According to Elliott, “it is prejudicial

      to include these offense[s] when Mr. Elliott only admitted to Count 2 of the

      Informations,” and “the trial court erred when it considered the alleged crimes”

      as an aggravating circumstance. (Appellant’s Br. at 18-19.) The sentencing

      record does not support Elliott’s suggestion that the trial court considered the

      dismissed charges as a discrete aggravating circumstance. Rather, the trial court

      observed in its oral sentencing statement that Elliott had received a benefit from

      having the charges dismissed.3


[8]   The trial court found that Elliott has a history of juvenile adjudications.

      Specifically, on June 13, 2007, Elliott was found to have committed an act that

      would be battery with bodily injury, a Class A misdemeanor if committed by an

      adult. On March 20, 2009 and on May 25, 2011, Elliott was found to have

      possessed marijuana, acts that would be a Class A misdemeanor and a Class D

      felony, respectively, if committed by an adult. According to Elliott, the trial

      court needed greater specificity as to Elliott’s actual conduct. “Without more




      3
        Also, the trial court recognized the large amount of cocaine, twenty-one grams, as an aggravator. Unless a
      plea agreement specifically forbids a judge from considering dismissed charges, the trial court may consider
      circumstances supporting charges which were dismissed as part of a plea agreement. Bethea v. State, 983
      N.E.2d 1134, 1145 (Ind. 2013).

      Court of Appeals of Indiana | Memorandum Decision 18A04-1603-CR-560 | October 20, 2016            Page 4 of 6
      information regarding Mr. Elliott’s juvenile adjudications, it was inappropriate

      for the trial court to consider his juvenile record in determining that he had a

      prior criminal history to enhance his sentence.” (Appellant’s Br. at 18.)


[9]   Elliott directs our attention to Jordan v. State, 512 N.E.2d 407 (Ind. 1987), an

      appeal from the dismissal of a petition for post-conviction relief challenging a

      juvenile adjudication. In concluding that post-conviction proceedings were

      unavailable to the petitioner, our Indiana Supreme Court observed that juvenile

      adjudications do not constitute criminal convictions. Id. at 408. The Court

      further explained:

               The statement, made by the Court of Appeals, that: “…a record
              of adjudication of juvenile delinquency may be considered as an
              aggravating circumstance to support enhancement of a criminal
              sentence,” is incorrect. An adjudication of delinquency is not a
              fact that can be used by a sentencing court to enhance a criminal
              sentence. Rather, the sentencing court may consider prior
              criminal conduct or history of criminal activity as an aggravating
              factor. A juvenile history detailed in a pre-sentence report filed
              with the trial court may suffice as evidence of a criminal history,
              and thus constitute an aggravating circumstance. Sims v. State
              (1981), Ind. App., 421 N.E.2d 698, 703. This Court has found
              the sentencing judge acted properly when he referred to a
              juvenile record which established that a defendant had a history
              of criminal conduct and there was a risk that this pattern could
              continue. Evans v. State (1986), Ind., 497 N.E.2d 919, 923. No
              mention is made of adjudication of delinquency. The
              aggravating factor being considered is a pattern of criminal
              activity or conduct from which the sentencing judge may
              evaluate whether this person might continue the pattern and
              commit crimes in the future.


      Court of Appeals of Indiana | Memorandum Decision 18A04-1603-CR-560 | October 20, 2016   Page 5 of 6
       Jordan, 512 N.E.2d at 410. Elliott properly claims that the appropriate focus is

       upon conduct as opposed to the adjudication. However, he does not deny that

       his Pre-Sentence Investigation Report, admitted without objection, provides

       details of his juvenile history. He has shown no deficiency in the trial court’s

       evaluative process.


[10]   Also, the trial court found that there had been “a degree of care and planning

       involved in the commission of the crime,” explaining “[Elliott] coordinated

       with his supplier as well as his customers to commit the crime of dealing in

       cocaine.” (Tr. at 37.) Elliott points out that the factual basis developed at the

       guilty plea hearing did not include evidence as to a particular supplier or

       customer. Generally, the nature and circumstances of a crime may properly be

       considered to be an aggravator. McCann v. State, 749 N.E.2d 1116, 1120 (Ind.

       2001). Nonetheless, even if a trial court has relied upon an improper factor as

       an aggravating circumstance, the sentence may be upheld so long as other valid

       aggravating circumstances exist. Bacher v. State, 722 N.E.2d 799, 803 (Ind.

       2000). Here, other valid aggravators exist. Elliott, who violated the conditions

       of his pre-trial home detention and had more than thirty conduct violations

       during his pre-trial incarceration, received a sentence of two years greater than

       the advisory sentence. Two years were suspended to probation. Elliott has not

       demonstrated that the trial court abused its sentencing discretion.


[11]   Affirmed.


       Riley, J., and Barnes, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 18A04-1603-CR-560 | October 20, 2016   Page 6 of 6
