      MEMORANDUM DECISION
                                                                                FILED
      Pursuant to Ind. Appellate Rule 65(D),                               Apr 12 2018, 8:10 am

      this Memorandum Decision shall not be                                     CLERK
      regarded as precedent or cited before any                             Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court
      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
      Emilee L. Stotts                                         Curtis T. Hill, Jr.
      Marion, Indiana                                          Attorney General of Indiana
                                                               Angela N. Sanchez
                                                               Supervising Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Shawn M. Burnworth,                                      April 12, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               35A05-1709-CR-2207
              v.                                               Appeal from the Huntington
                                                               Superior Court
      State of Indiana,                                        The Honorable Jennifer E.
      Appellee-Plaintiff.                                      Newton, Judge
                                                               Trial Court Cause Nos.
                                                               35D01-1612-F5-259
                                                               35D01-0906-FA-122



      Mathias, Judge.


[1]   In 2009, Shawn M. Burnworth (“Burnworth”) pleaded guilty in Huntington

      Superior Court to Class B felony dealing in methamphetamine. The court

      Court of Appeals of Indiana | Memorandum Decision 35A05-1709-CR-2207 | April 12, 2018         Page 1 of 11
      sentenced Burnworth to twenty years, with fourteen years executed and six

      years suspended to probation. Burnworth was released from prison in 2014 and

      began his probation. In 2016, while still on probation for the first conviction,

      Burnworth pleaded guilty to Level 5 felony dealing in methamphetamine and

      admitted to being an habitual offender and to violating the terms of his

      probation. After this second plea, the trial court sentenced Burnworth to an

      aggregate of twelve years of incarceration. The court also revoked Burnworth’s

      probation and ordered him to serve the six-year balance of his previously

      suspended sentence. Burnworth appeals and presents three issues, which we

      restate as:


        I. Whether the trial court erred by imposing a separate, consecutive sentence
           on Burnworth’s habitual offender adjudication;
       II. Whether Burnworth’s twelve-year sentence is inappropriate; and
      III. Whether the trial court abused its discretion by ordering Burnworth to
           serve the balance of his previously suspended sentence.

      The State concedes, and we agree, that the trial court erred by imposing the

      habitual offender enhancement as a separate consecutive sentence instead of

      attaching it to Burnworth’s underlying conviction. However, we reject

      Burnworth’s other arguments. We therefore affirm Burnworth’s sentences but

      remand with instructions that the trial court attach the habitual offender

      enhancement to the sentence imposed on the Level 5 felony conviction.


                                  Facts and Procedural History
[2]   On June 8, 2009, Burnworth drove his car in Huntington, Indiana while he

      manufactured methamphetamine in the car. At some point, the portable

      Court of Appeals of Indiana | Memorandum Decision 35A05-1709-CR-2207 | April 12, 2018   Page 2 of 11
      methamphetamine lab he was using to manufacture the drug exploded, and the

      car burst into flames. Burnworth jumped from the still-moving car, which hit a

      telephone pole.


[3]   As a result of this incident, the State charged Burnworth on June 10, 2009, with

      Class A felony dealing in methamphetamine and Class A misdemeanor

      purchasing three or more grams of ephedrine or pseudoephedrine within seven

      days. On August 4, 2009, Burnworth entered into a plea agreement with the

      State, pursuant to which he agreed to plead guilty to Class B felony dealing in

      methamphetamine and receive a twenty-year sentence. The agreement gave the

      trial court discretion to suspend a portion of the sentence. The trial court

      accepted the plea and sentenced Burnworth to fourteen years executed and six

      years suspended to probation. Burnworth was released from prison on

      December 17, 2014, and began his probation.


[4]   In the fall of 2016, the State filed a petition to revoke Burnworth’s probation

      alleging that he had failed to report to scheduled appointments with his

      probation officer, failed to report to scheduled drug tests, and failed to provide

      his address to his probation office. At the hearing held on this petition,

      Burnworth admitted to violating the terms of his probation. He also tested

      positive for marijuana use. The trial court declined to revoke Burnworth’s

      probation and decided instead to continue probation with modified conditions,

      which included participation in an intensive outpatient treatment program.

      Burnworth quickly squandered this second chance.



      Court of Appeals of Indiana | Memorandum Decision 35A05-1709-CR-2207 | April 12, 2018   Page 3 of 11
[5]   On September 14, 2016, Burnworth rode in a car in Huntington County with

      several friends as he manufactured methamphetamine inside a twenty-ounce

      bottle. As the car drove past a local high school, Burnworth noticed that a

      police patrol car was driving behind them. Burnworth made the questionable

      decision to throw the bottle out of the car in view of the police officer, who

      immediately pulled the vehicle over. Inside the car, the police found other items

      used in the manufacture and use of methamphetamine, including one empty

      and one unopened box of pseudoephedrine pills, tools, scales, and hypodermic

      needles. Burnworth admitted that he intended to sell the methamphetamine to

      raise money so that he could leave town and had already made plans to sell the

      methamphetamine.


[6]   As a result of this incident, the State charged Burnworth on December 21, 2016,

      with Level 5 felony dealing in methamphetamine. The State subsequently

      added an allegation that Burnworth was an habitual offender. On August 15,

      2017, Burnworth entered into an “open” plea agreement and pleaded guilty

      without any limitations or agreement as to his sentence. At the September 12,

      2018 sentencing hearing, the trial court imposed a six-year sentence on the

      Level 5 felony conviction and a consecutive six-year sentence on the habitual

      offender adjudication. The trial court also revoked Burnworth’s probation and

      ordered him to serve the six-year balance of his previously suspended sentence.

      Burnworth now appeals.




      Court of Appeals of Indiana | Memorandum Decision 35A05-1709-CR-2207 | April 12, 2018   Page 4 of 11
                                  I. Habitual Offender Enhancement

[7]   Burnworth first claims that the trial court erred by entering the sentence

      enhancement for his habitual offender adjudication as a separate, consecutive

      sentence. The State concedes the error, and we agree. An habitual offender

      adjudication does not constitute a separate crime, nor does it result in a separate

      sentence. Rose v. State, 36 N.E.3d 1055, 1064–65 (Ind. Ct. App. 2015) (citing

      Harris v. State, 964 N.E.2d 920, 927 (Ind. Ct. App. 2012), trans. denied). Instead,

      an habitual offender adjudication results in a sentence enhancement imposed

      upon the conviction of a subsequent felony. Id. at 1065. Accordingly, we

      remand with instructions that the trial court vacate the separate sentence on the

      habitual offender enhancement and attach the six-year enhancement to

      Burnworth’s conviction for Level 5 dealing in methamphetamine. See id.


                                   II. Appropriateness of Sentence

[8]   Burnworth next argues that the twelve-year sentence imposed by the trial court

      is inappropriate. Even if a trial court acted within its statutory discretion in

      imposing a sentence, Sections 4 and 6 of Article 7 of the Indiana Constitution

      authorize independent appellate review and revision of a sentence imposed by

      the trial court. Rose, 36 N.E.3d at 1063. This constitutional authority is

      implemented through Indiana Appellate Rule 7(B), which provides that we

      “may revise a sentence authorized by statute if, after due consideration of the

      trial court’s decision, the Court finds that the sentence is inappropriate in light

      of the nature of the offense and the character of the offender.”



      Court of Appeals of Indiana | Memorandum Decision 35A05-1709-CR-2207 | April 12, 2018   Page 5 of 11
[9]    Still, we must exercise deference to a trial court’s sentencing decision, because

       Rule 7(B) requires us to give “due consideration” to that decision and because

       we understand and recognize the unique perspective a trial court brings to its

       sentencing decisions. Id. Although we have the power to review and revise

       sentences, the principal role of appellate 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 what

       we perceive to be a “correct” result in each case. Cardwell v. State, 895 N.E.2d

       1219, 1225 (Ind. 2008).


[10]   Our review under Appellate Rule 7(B) should focus on “the forest—the

       aggregate sentence—rather than the trees—consecutive or concurrent, number

       of counts, or length of the sentence on any individual count.” Id. The

       appropriate question is not whether another sentence is more appropriate;

       rather, the question is whether the sentence imposed is inappropriate. Rose, 36

       N.E.3d at 1063. It is the defendant’s burden on appeal to persuade us that the

       sentence imposed by the trial court is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006)).

[11]   Here, Burnworth was convicted of a Level 5 felony and found to be an habitual

       offender. The sentencing range for a Level 5 felony is one to six years. Ind.

       Code § 35-50-2-6(b). And the trial court had the discretion to impose an

       habitual offender enhancement of two to six years. Ind. Code § 35-50-2-8(i)(2).

       Thus, the trial court imposed the maximum sentence of twelve years.



       Court of Appeals of Indiana | Memorandum Decision 35A05-1709-CR-2207 | April 12, 2018   Page 6 of 11
[12]   “Although the maximum possible sentences are generally most appropriate for

       the worst offenders, this rule is not an invitation to determine whether a worse

       offender could be imagined, as it is always possible to identify or hypothesize a

       significantly more despicable scenario, regardless of the nature of any particular

       offense and offender.” Kovats v. State, 982 N.E.2d 409, 416 (Ind. Ct. App. 2013).

       By stating that maximum sentences are ordinarily appropriate for the “worst

       offenders,” we refer generally to the class of offenses and offenders that warrant

       the maximum punishment, which encompasses a considerable variety of

       offenses and offenders. Id. Accordingly, “[w]e concentrate less on comparing

       the facts of this case to others, whether real or hypothetical, and more on

       focusing on the nature, extent, and depravity of the offense for which the

       defendant is being sentenced, and what it reveals about the defendant’s

       character.” Wells v. State, 904 N.E.2d 265, 274 (Ind. Ct. App. 2009), trans. denied

       (citing Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied).


[13]   In the present case, the nature of Burnworth’s offense does little to persuade us

       that his sentence is inappropriate. For at least the second time, Burnworth was

       operating a mobile methamphetamine lab in a car. Burnworth knew well that

       doing so was dangerous, as his previous effort to do so resulted in his car

       catching fire. And this time, there were others in the car with him. Moreover,

       Burnworth threw the bottle in which he was making methamphetamine out of

       the car window, near a high school football field, thereby exposing even more

       people to the dangerous chemicals used in the making of methamphetamine.

       Burnworth further admitted that he already had buyers for the illicit drugs he


       Court of Appeals of Indiana | Memorandum Decision 35A05-1709-CR-2207 | April 12, 2018   Page 7 of 11
       was making and that he planned to sell the methamphetamine to raise funds to

       leave town, despite the fact that he was on probation.


[14]   Burnworth’s character further supports the trial court’s sentencing decision.

       Although Burnworth notes that he cooperated with the police and pleaded

       guilty, this only marginally improves our view of his character. As a juvenile,

       Burnworth was found to be delinquent for burglary and illegal possession of

       alcohol, in addition to status offenses such as truancy and running away from

       home. As an adult, Burnworth was twice convicted of Class D felony theft.

       And, as noted above, he was also convicted for Class B felony dealing in

       methamphetamine and was still on probation for this offense when he

       committed the instant offense. He has also accumulated convictions for twelve

       misdemeanors, including possession of marijuana, intimidation, battery,

       criminal mischief, public intoxication, operating while intoxicated, failure to

       stop at the scene of an accident, conversion, check deception, illegal possession

       of alcohol, and the purchase of more than three grams of ephedrine or

       pseudoephedrine.


[15]   In addition, not only was Burnworth on probation at the time he committed the

       instant offense, he was on probation for committing the exact same act—

       manufacturing methamphetamine while in an automobile. And when

       Burnworth first violated the terms of his probation, the trial court chose not to

       revoke his probation and instead gave him a second chance on probation.

       Burnworth then committed the same crime for which he was on probation, i.e.,

       manufacturing methamphetamine.

       Court of Appeals of Indiana | Memorandum Decision 35A05-1709-CR-2207 | April 12, 2018   Page 8 of 11
[16]   Despite Burnworth’s argument that his criminal behavior was motivated by his

       substance abuse problem—which we do not doubt—he squandered the

       opportunity for treatment that was offered to him while on probation.

       Specifically, when the trial court chose to continue Burnworth’s probation and

       ordered him to participate in intensive outpatient substance abuse treatment,

       Burnworth chose not to participate in treatment. Instead, he fled the State.


[17]   All of these facts and circumstances lead us to the conclusion that the twelve-

       year sentence imposed by the trial court is not inappropriate.1


                                            III. Probation Sentence

[18]   Lastly, Burnworth argues that the trial court abused its discretion when it

       ordered him to serve the six-year balance of his previously suspended sentence.

       Burnworth does not deny that he violated the terms of his probation; to the

       contrary, he admitted to having done so. He claims only that, after he was

       charged with the instant offense, he found gainful employment in North Dakota

       and stopped using illicit drugs and that the trial court should therefore have not

       ordered him to serve the entire balance of his previously suspended sentence.




       1
         We find Burnworth’s citation to Parks v. State, 22 N.E.3d 552 (Ind. 2014), unavailing. In that case, the
       defendant was convicted of Class A felony dealing in methamphetamine and was sentenced under the prior
       sentencing scheme to forty years of incarceration. On appeal, our supreme court revised his sentence to thirty
       years, with twenty years executed at the Department of Correction, two years executed on Community
       Corrections, and eight years suspended to probation. Id. at 556. Thus, even the revised sentence in Parks was
       considerably greater than Burnworth’s sentence. Although this is due in part to the 2015 revision of the
       criminal code, the fact remains that Parks’s sentence was much greater than Burnworth’s. Moreover,
       Burnworth, unlike the defendant in Parks, was on probation for the exact same behavior when he committed
       the instant offense. We therefore do not find Parks to be controlling.

       Court of Appeals of Indiana | Memorandum Decision 35A05-1709-CR-2207 | April 12, 2018             Page 9 of 11
[19]   Upon a finding of a probation violation, a trial court may impose one or more

       of the following sanctions:


               (1) Continue the person on probation, with or without modifying
               or enlarging the conditions.
               (2) Extend the person’s probationary period for not more than
               one (1) year beyond the original probationary period.
               (3) Order execution of all or part of the sentence that was
               suspended at the time of initial sentencing.


       Ind. Code § 35-38-2-3(h).


[20]   A defendant is not entitled to serve a sentence in a probation program; rather,

       such placement is a matter of grace and a conditional liberty that is a favor, not

       a right. Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind. Ct. App. 2006). We

       review the trial court’s sentencing decisions on probation violations for an

       abuse of discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). An abuse

       of discretion occurs where the decision is clearly against the logic and effect of

       the facts and circumstances before the court. Id. The trial court should be given

       considerable leeway in deciding how to proceed following the revocation of

       probation. Id. Consequently, so long as proper procedures have been followed,

       the trial court may order execution of a suspended sentence after revoking

       probation. Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct. App. 1999); see also

       I.C. § 35-38-2-3(h).


[21]   Here, Burnworth had previously violated the terms of his probation. The trial

       court could have revoked his probation and ordered him to serve the balance of

       Court of Appeals of Indiana | Memorandum Decision 35A05-1709-CR-2207 | April 12, 2018   Page 10 of 11
       his previously suspended sentence at that time. Instead, the trial court gave

       Burnworth a second chance and extended his probation with the additional

       condition of outpatient substance abuse treatment. Instead of taking advantage

       of this opportunity, Burnworth failed to undergo treatment and committed the

       very same act that resulted in him being placed on probation in the first place—

       making methamphetamine. And after his arrest for this second incident,

       Burnworth fled the state. The trial court was therefore well within its discretion

       to order Burnworth to serve the six-year balance of his previously suspended

       sentence.


                                                 Conclusion
[22]   Burnworth’s aggregate twelve-year sentence is not inappropriate in light of the

       nature of the offense and the character of the offender. Nor did the trial court

       abuse its discretion in ordering Burnworth to serve the six-year balance of his

       previously suspended sentence. The trial court did, however, err by entering the

       habitual offender enhancement as a separate, consecutive sentenced instead of

       attaching it to the six-year sentence imposed on the Level 5 felony conviction.

       We therefore affirm Burnworth’s sentences and remand with instructions that

       the trial court attach the habitual offender enhancement to the sentence

       imposed on the Level 5 felony conviction.


[23]   Affirmed and remanded.


       Najam, J., and Barnes, J. concur.



       Court of Appeals of Indiana | Memorandum Decision 35A05-1709-CR-2207 | April 12, 2018   Page 11 of 11
