MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            Aug 30 2018, 10:01 am
regarded as precedent or cited before any
                                                                      CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
the defense of res judicata, collateral                                and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stacy R. Uliana                                          Curtis T. Hill, Jr.
Bargersville, Indiana                                    Attorney General

                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Adam Barton,                                             August 30, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-810
        v.                                               Appeal from the Steuben Circuit
                                                         Court
State of Indiana,                                        The Honorable Allen N. Wheat,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         76C01-1608-F5-551



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-810 | August 30, 2018            Page 1 of 6
                                             Case Summary
[1]   Adam Barton appeals the sentence imposed by the trial court following his

      guilty plea to level 5 felony manufacturing methamphetamine and level 6 felony

      possession of methamphetamine. He asserts that the trial court abused its

      discretion during sentencing. Finding no abuse of discretion, we affirm.


                                 Facts and Procedural History
[2]   On July 16, 2016, thirty-six-year-old Barton and his girlfriend were

      manufacturing methamphetamine in the bedroom of an apartment Barton

      shared with his seventy-year-old father. During the manufacturing process, an

      explosion occurred causing a fire to break out. Barton and his girlfriend fled the

      scene, leaving Barton’s father in the apartment. Barton and his girlfriend did

      not pull a fire alarm or alert any residents of the apartment building that a fire

      had started. Police who responded to the scene found Barton’s father in the

      apartment and escorted him out of the building to safety. Firefighters and

      investigators found numerous items known to be associated with

      methamphetamine manufacturing inside the apartment. They also found two

      vials of white powder that later tested positive for methamphetamine. The fire

      caused significant damage, and numerous residents of the apartment complex

      were displaced during the cleanup process.


[3]   On August 10, 2016, the State charged Barton with level 5 felony

      manufacturing methamphetamine and level 6 felony possession of

      methamphetamine. On February 12, 2018, Barton pled guilty to both counts.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-810 | August 30, 2018   Page 2 of 6
      During sentencing, the trial court found Barton’s guilty plea to be a mitigating

      factor. The court found Barton’s criminal history, which included a recently

      dismissed additional charge for manufacturing methamphetamine in the same

      county, to be an aggravating factor. The court further found the nature and

      circumstances of the crimes (explosion causing significant damage) and the fact

      that he occupied a position of trust with the property owner (his father) to be

      aggravating factors. The trial court imposed a three-year sentence with one

      year suspended. The court further determined that Barton was eligible for

      participation in community corrections. This appeal ensued.


                                     Discussion and Decision
[4]   Barton argues that the trial court abused its discretion during sentencing.

      Sentencing decisions rest within the sound discretion of the trial court and are

      reviewed 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. 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 to be drawn therefrom.” Id. A trial court abuses its discretion if it:

      (1) fails “to enter a sentencing statement at all”; (2) enters “a sentencing

      statement that explains reasons for imposing a sentence—including a finding of

      aggravating and mitigating factors if any—but the record does not support the

      reasons”; (3) enters a sentencing statement that “omits reasons that are clearly

      supported by the record and advanced for consideration”; or (4) considers

      reasons that “are improper as a matter of law.” Id. at 490-91. However, the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-810 | August 30, 2018   Page 3 of 6
      relative weight or value assignable to reasons properly found, or those which

      should have been found, is not subject to review for abuse of discretion. Id.


[5]   Barton’s sole argument on appeal is that the trial court abused its discretion by

      improperly considering as an aggravating factor that he violated a “position of

      trust” simply because he manufactured methamphetamine in an apartment he

      lived in with his father. Sentencing Order at 2. “The position of trust

      aggravator is frequently cited by sentencing courts where an adult has

      committed an offense against a minor and there is at least an inference of the

      adult’s authority over the minor.” Rodriguez v. State, 868 N.E.2d 551, 555 (Ind.

      Ct. App. 2007). However, we have also found a position of trust to have been

      violated between cohabitating adults. See Amalfitano v. State, 956 N.E.2d 208,

      211 (Ind. Ct. App. 2011), trans. denied (2012). As a general matter, “[a] position

      of trust exists where a defendant has ‘more than a casual relationship with the

      victim and has abused the trust resulting from that relationship.’” Id. (quoting

      Rodriguez, 868 N.E.2d at 555).


[6]   Barton clearly had more than a casual relationship with his father and he

      abused the trust resulting from that relationship by choosing to manufacture

      methamphetamine in his father’s apartment. As noted by the trial court, Barton

      “was in an apartment … that his Father was leasing and I doubt very much if

      Dad knew that he was going to be cooking methamphetamine … [he] wouldn’t

      have allowed him to enter.…” Tr. Vol. 2 at 22. Moreover, we think the trial

      court’s consideration of Barton’s conduct in the context of the father-son

      relationship was also an additional consideration of the nature and

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-810 | August 30, 2018   Page 4 of 6
      circumstances of the crime, which is a proper aggravator. See McCann v. State,

      749 N.E.2d 1116, 1120 (Ind. 2001) (noting that the “nature and circumstances”

      of a crime is a proper aggravating circumstance). During sentencing, the State

      argued that the court should consider that Barton was manufacturing

      methamphetamine in an apartment that he shared with his seventy-year-old

      father and that, when the explosion occurred, and a fire broke out, Barton

      simply fled the scene leaving his father to fend for himself. The trial court

      found this behavior to be particularly heinous. The trial court’s consideration

      of these facts during sentencing was not an abuse of discretion.


[7]   Further, even if a trial court relies on an improper aggravator, remand is

      unnecessary if the appellate court is confident that the trial court would have

      imposed the same sentence regardless. See Anglemyer, 868 N.E.2d at 491

      (remand for resentencing appropriate if we cannot say with confidence that trial

      court would have imposed same sentence had it properly considered reasons

      that enjoy support in record). The trial court here found additional aggravating

      factors which Barton does not challenge and, more significantly, Barton’s total

      executed sentence on both counts is two years, which is well below the

      maximum he could have received for his level 5 and a level 6 felony

      convictions. See Ind. Code § 35-50-2-6(b) (the sentencing range for a level 5

      felony is between one and six years); Ind. Code § 35-50-2-7(b) (the sentencing

      range for a level 6 felony is between six months and three years); but see Ind.

      Code § 35-50-1-2(d) (limiting total of the consecutive terms of imprisonment for

      crimes arising out of an episode of criminal conduct). We are confident that the


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-810 | August 30, 2018   Page 5 of 6
      trial court would have imposed the same sentence regardless of its finding that

      Barton violated a position of trust, and thus we affirm his sentence.


[8]   Affirmed.


      Najam, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-810 | August 30, 2018   Page 6 of 6
