MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                    Aug 18 2015, 9:17 am
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
Marce Gonzalez, Jr.                                       Gregory F. Zoeller
Dyer, Indiana                                             Attorney General of Indiana

                                                          Jodi Kathryn Stein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Kenneth Jaquin Washington,                               August 18, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1501-CR-11
        v.                                               Appeal from the Lake County
                                                         Superior Court;
                                                         The Honorable Salvador Vasquez,
State of Indiana,                                        Judge;
Appellee-Plaintiff.                                      45G01-1401-FA-4




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1501-CR-11 | August 18, 2015    Page 1 of 4
[1]   Kenneth Jaquin Washington appeals his five-year sentence for Class C felony

      possession of cocaine. 1 As his sentence is not inappropriate, we affirm.


                                     Facts and Procedural History
[2]   On April 3, 2013, Washington sold cocaine to a confidential informant.

      Washington was charged with three counts of Class B felony dealing in

      cocaine, 2 two counts of Class D felony possession of cocaine, 3 and one count of

      Class C felony possession of cocaine. Washington agreed to plead guilty to

      Class C felony possession of cocaine with a sentencing cap of six years. The

      remaining charges were dismissed.


[3]   At sentencing, the trial court found as mitigators that Washington took

      responsibility and agreed to plead guilty. As aggravators, the trial court

      considered Washington’s criminal history, which included two prior felony

      convictions involving cocaine, and it noted prior judicial leniency had no

      deterrent effect on Washington’s behavior. The trial court sentenced

      Washington to five years in the Department of Correction.


                                          Discussion and Decision
[4]   When a defendant enters a plea agreement but the trial court retains sentencing

      discretion, even within an agreed-upon cap, a defendant “is entitled to contest



      1
          Ind. Code § 35-48-4-6(a)(b)(1)(A) (2006).
      2
          Ind. Code § 35-48-4-1 (2006).
      3
          Ind. Code § 35-48-4-6(a) (2006).


      Court of Appeals of Indiana | Memorandum Decision 45A03-1501-CR-11 | August 18, 2015   Page 2 of 4
      the merits of a trial court’s sentencing discretion.” Tumulty v. State, 666 N.E.2d

      394, 396 (Ind. 1996). We may revise a sentence if it is inappropriate in light of

      the nature of the offense and the character of the offender. Williams v. State, 891

      N.E.2d 621, 633 (Ind. Ct. App. 2008) (citing Ind. Appellate Rule 7(B)). We

      consider not only the aggravators and mitigators found by the trial court, but

      also any other factors appearing in the record. Roney v. State, 872 N.E.2d 192,

      206 (Ind. Ct. App. 2007), trans. denied. The appellant bears the burden of

      demonstrating his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073,

      1080 (Ind. 2006).


[5]   When considering the nature of the offense, the advisory sentence is the starting

      point to determine the appropriateness of a sentence. Anglemyer v. State, 868

      N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The

      sentencing range for a Class C felony is “a fixed term of between two (2) and

      eight (8) years, with the advisory sentence being four (4) years.” Ind. Code §

      35-50-2-6 (2005). Washington requests we reduce his five-year sentence to the

      advisory four years.


[6]   Regarding the nature of his offense, Washington was contacted by a

      confidential informant wanting to purchase cocaine. Washington employed the

      services of third parties to be “his mules.” (Tr. at 5.) He was trying to “ga[me]

      the system.” (Id.) In this way, he sought to protect himself from prosecution.


[7]   When considering the character of the offender, one relevant fact is the

      defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1501-CR-11 | August 18, 2015   Page 3 of 4
      App. 2007). The significance of a criminal history in assessing a defendant’s

      character varies based on the gravity, nature, and number of prior offenses in

      relation to the current offense. Id. Washington’s criminal history includes

      felony convictions of dealing and possession of cocaine, along with various

      misdemeanors. Washington was sentenced to two years in a work release

      program for one felony and seven years in DOC for the other. Neither deterred

      him from reoffending.


[8]   Washington’s assertion that his cocaine addiction is a mitigator is not supported

      by the record. Washington states he uses cocaine only “in his cigarettes and

      smoke[s] it once a month.” (App. at 70.) 4 Washington has not sought

      treatment despite two previous convictions involving cocaine. See Caraway v.

      State, 959 N.E.2d 847, 952 (Ind. Ct. App. 2011) (no error when trial court found

      as an aggravator that Caraway recognized addiction but did not seek

      treatment), trans. denied.


[9]   Washington has not demonstrated his five-year sentence is inappropriate in

      light of his character and his offense. Accordingly, we affirm.


      Crone, J., and Bradford, J., concur.




      4
        Per Indiana Administrative Rule 9(G)(2)(b), the presentence investigation (PSI) report must be excluded
      from public access. We have included confidential information in this decision only to the extent it “is
      essential to the resolution” of Washington’s claim on appeal. Ind. Admin. Rule 9(G)(7)(a)(ii)(c).

      Court of Appeals of Indiana | Memorandum Decision 45A03-1501-CR-11 | August 18, 2015             Page 4 of 4
