MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Jul 31 2019, 11:55 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
Donald J. Frew                                            Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General of Indiana
                                                          Megan M. Smith
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Randolph Bazile,                                          July 31, 2019
Appellant-Defendant,                                      Court of Appeals Case No. 19A-
                                                          CR-493
        v.
                                                          Appeal from the Allen Superior
                                                          Court
State of Indiana,
                                                          The Honorable Frances C. Gull,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          02D05-1805-F6-595



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-493 | July 31, 2019                        Page 1 of 6
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Randolph D. Bazile (Bazile), appeals his sentence

      following his conviction for possession of a synthetic drug or synthetic drug

      lookalike substance, a Level 6 felony, Ind. Code § 35-48-4-11.5; and public

      intoxication, a Class B misdemeanor, I.C. § 7.1-5-1-3.


[2]   We affirm.


                                                    ISSUE
[3]   Bazile raises one issue on appeal, which we restate as: Whether his sentence is

      inappropriate in light of the nature of the offense and his character.


                      FACTS AND PROCEDURAL HISTORY
[4]   In the early morning hours of May 18, 2018, Bazile and another man were

      sitting and smoking on a park bench in the downtown area of Fort Wayne,

      Indiana, when they were approached by officers from the Fort Wayne police

      department. Bazile and the other male were engulfed by a large cloud of

      smoke; the other man was holding a partially burnt cigar, containing a plant

      like material that appeared to be spice. Bazile could barely speak and began

      falling asleep when officers attempted to speak with him. He appeared “thick

      tongued” and slurred his speech. (Appellant’s App. Vol. II, p. 12). Bazile was

      arrested. During a search incident to arrest for public intoxication, the officers

      located a plastic baggie containing synthetic marijuana or spice in Bazile’s right



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-493 | July 31, 2019   Page 2 of 6
      front pants pocket and four packages of synthetic marijuana or spice in his

      backpack.


[5]   On May 24, 2018, the State filed an Information, charging Bazile with

      possession of synthetic drug or a synthetic drug lookalike substance, a Level 6

      felony; and public intoxication, a Class B misdemeanor. On July 9, 2018,

      Bazile entered a plea of guilty to both charges. While the trial court took the

      guilty plea under advisement, Bazile signed a participation agreement for the

      Allen Superior Court Drug Court Program. Barely one month later, on August

      10, 2018, Bazile violated the Drug Court’s rules by absconding from placement

      and a warrant was issued for his arrest. He subsequently failed to appear for a

      compliance hearing on August 13, 2018 and another warrant was issued for his

      arrest. After being apprehended, Bazile was awarded another opportunity to

      participate in the Drug Court program.


[6]   On December 26, 2018, a verified petition was filed to terminate Bazile’s

      participation in the Drug Court Program because he had failed to successfully

      complete transitional living and maintain good behavior by being arrested

      under a new cause number. On December 31, 2018, the trial court revoked

      Bazile’s participation in the Drug Court Program and scheduled a sentencing

      hearing. On January 31, 2019, Bazile was sentenced to two years executed in

      the Department of Correction for the possession of a synthetic drug or synthetic

      drug lookalike substance, and 180 days for public intoxication, with both

      sentences to run concurrently.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-493 | July 31, 2019   Page 3 of 6
[7]   Bazile now appeals. Additional facts will be provided if necessary.


                              DISCUSSION AND DECISION
[8]   Bazile contends that the trial court abused its discretion by imposing an

      aggregate two year executed sentence. He maintains that “given the totality of

      the circumstances,” “a sentence which required probation supervision and a

      smaller amount of executed time” would be “justified.” (Appellant’s Br. p. 11)


[9]   Pursuant to Indiana Appellate Rule 7(B), we may revise a sentence if, after due

      consideration of the trial court’s decision, we find the sentence inappropriate

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

      Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d

      218 (Ind. 2007). We consider not only the aggravators and mitigators found by

      the trial court but also any other factors appearing in the record. Johnson v.

      State, 986 N.E.2d 852, 856 (Ind. Ct. App. 2013). We defer to the trial court’s

      decision, and our goal is to determine whether the sentence is inappropriate,

      not whether some other sentence would be more appropriate. Conley v. State,

      972 N.E.2d 864, 876 (Ind. 2012). We seek to leaven the outliers, not to achieve

      a perceived correct result. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).

      Thus, “deference should prevail unless overcome by compelling evidence

      portraying in a positive light the nature of the offense (such as accompanied by

      restraint, regard, and lack of brutality) and the defendant’s character (such as

      substantial virtuous traits or persistent examples of good character).” Stephenson

      v. State, 23 N.E.3d 111, 122 (Ind. 2015). Ultimately, our review should focus
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-493 | July 31, 2019   Page 4 of 6
       on the aggregate sentence; that is, we “should focus on the forest—the

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

       of Counts, and length of the sentence on any individual Count.” Cardwell, 895

       N.E.2d at 1225.


[10]   Bazile pled guilty to a Level 6 felony and a Class B misdemeanor. Indiana

       Code section 35-50-2-7(b) provides that “[a] person who commits a Level 6

       felony . . . shall be imprisoned for a fixed term of between six (6) months and

       two and one half (2 ½) years, with the advisory sentence being one (1) year.” A

       Class B misdemeanor incurs imprisonment “for a fixed term of not more than

       one hundred eighty (180) days[.]” I.C. §35-50-3-3. Finding that the aggravators

       outweighed the mitigators, the trial court imposed an aggregate sentence of two

       years executed. Bazile contends that because he did not put anyone in danger,

       accepted responsibility by pleading guilty, and expressed remorse, his two-year

       sentence is inappropriate.


[11]   Turning to the nature of the offense, we agree with Bazile that the offense is

       characterized by a lack of brutality and was harmless to others. However,

       despite Bazile’s concession that the spice found in his back pack was his, Bazile

       was intoxicated in a public place, staring “blankly” and failing to respond to

       questions. (Appellant’s App. Vol. II, p. 43).


[12]   With respect to his character, we note that Bazile has a lengthy criminal history,

       comprising of fourteen misdemeanor convictions and one felony conviction


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-493 | July 31, 2019   Page 5 of 6
over a six-year period. Bazile’s convictions include eight instances of public

intoxication, two convictions for battery, one for possession of marijuana, one

for possession of a controlled substance, and one for operating a vehicle while

intoxicated. During this time-period, Bazile had multiple failed efforts at

rehabilitation: he has been given short jail sentences, longer jail sentences,

unsupervised visitation, and electronic monitoring through community

corrections. Bazile has been given the benefit of the Alcohol Countermeasures

Program, as well as the Drug Court Program. His sentences have been

modified five times, and his probation has been revoked once. Bazile was

serving a suspended sentence for a previous offense when he committed the

instant charges. Moreover, while this case was pending and he was

participating in the Drug Court Program, Bazile accumulated a new felony.

Clearly, the benefit of lesser sentencing in exchange for good behavior has not

imparted on Bazile the desire to change or rehabilitate himself. Accordingly, in

light of the facts before us, we cannot conclude that Bazile’s sentence is

inappropriate in light of the nature of the offense and his character.


                                      CONCLUSION
Based on the foregoing, we hold that Bazile’s sentence is not inappropriate in

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


Affirmed.


Vaidik, C. J. and Bradford, J. concur


Court of Appeals of Indiana | Memorandum Decision 19A-CR-493 | July 31, 2019   Page 6 of 6
