MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Dec 17 2019, 6:24 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Brandon E. Murphy                                        Curtis T. Hill, Jr.
Muncie, Indiana                                          Attorney General of Indiana

                                                         Steven Hosler
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Erik T. Whitesell,                                       December 17, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-983
        v.                                               Appeal from the
                                                         Blackford Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      John Nicholas Barry, Judge
                                                         Trial Court Cause No.
                                                         05D01-1801-F5-2



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-983 | December 17, 2019              Page 1 of 10
                                             Case Summary
[1]   Following his guilty plea to Level 5 felony dealing in methamphetamine, Erik

      T. Whitesell appeals, asserting that his six-year sentence is inappropriate.


[2]   We affirm.


                                   Facts & Procedural History
[3]   On December 7, 2017, Lieutenant Cody Crouse of the Hartford City Police

      Department was conducting a drug investigation at Whitesell’s residence. Lt.

      Crouse observed Whitesell leave his residence at 7:55 a.m. and return at 12:07

      p.m. Over the course of the next several hours, Lt. Crouse saw several vehicles

      drive up to the residence and the occupants enter and exit the residence. He

      also observed Whitesell leave and return one or more times. Lt. Crouse

      obtained a search warrant for the residence and two vehicles, including a gold

      Lincoln Town Car. Officers observed the Lincoln leave around 4 p.m. with

      three occupants, including Whitesell, and initiated a stop. Lt. Crouse informed

      Whitesell that he had a search warrant for the Lincoln and Whitesell’s

      residence. Whitesell gave Lt. Crouse his keys to the residence, and Whitesell

      told other officers that there was a syringe in front of his bed in the basement.

      During the search of Whitesell’s residence, officers found various items

      consistent with drug dealing, including syringes, marijuana, Fentanyl, and

      other drug paraphernalia.


[4]   Whitesell was taken to the police station and, after receiving Miranda warnings,

      gave a statement. He admitted to using heroin, methamphetamine, and

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-983 | December 17, 2019   Page 2 of 10
      marijuana. He admitted that when he was seen leaving around 8:00 a.m. and

      returning around noon, he had “made a trip,” which Lt. Crouse knew from

      experience referred to a trip to purchase drugs. Appellant’s Appendix Vol. II at

      191. When asked how much “dope” he acquired that day, Whitesell said

      fifteen grams and indicated that he had already sold it. Id. Whitesell stated that

      he deals in both heroin and methamphetamine and estimated that generally he

      sold between half an ounce to an ounce per day. He told Lt. Crouse that he

      makes “a lot” of money each week. Id. Lt. Crouse asked Whitesell how law

      enforcement could “put [a] boot on the throat of this drug problem in Hartford

      County,” and Whitesell stated, “to be honest, [w]hatever you do with me. I’m

      probably single handed the only one bringing dope into this county in big

      quantity.” Id. at 192. Whitesell was arrested and incarcerated at the Blackford

      County Security Center.


[5]   On January 5, 2018, the State charged Whitesell with Count 1, Level 5 felony

      dealing in methamphetamine; Count 2, Level 5 felony dealing in

      methamphetamine; Count 3, Level 6 felony unlawful possession of a syringe;

      Count 4, Level 6 felony possession of methamphetamine; Count 5, Level 6

      felony maintaining a common nuisance; Count 6, Class C misdemeanor

      possession of paraphernalia; and Count 7, Class B misdemeanor possession of

      marijuana.


[6]   On or around May 14, 2018, Whitesell was released from the Blackford County

      Security Center to Grace House Ministries, located in Shelby County, Indiana,

      where he was to participate in substance abuse treatment. Pursuant to court

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-983 | December 17, 2019   Page 3 of 10
      order, he was to reside at Grace House, and at no other place, until such time as

      he completed his treatment or Grace House terminated his participation. On

      November 14, 2018, Whitesell executed a written plea agreement, under which

      he would plead guilty to Level 5 felony dealing in methamphetamine and the

      remaining charges would be dismissed. The plea agreement further provided

      that sentencing would be left open but not to exceed four years. A presentence

      investigation report was ordered, and the sentencing hearing was set for

      December 17, 2018.


[7]   On December 3, the Blackford County probation department filed a report with

      the trial court stating that, during a November 30 presentence interview,

      Whitesell admitted to a probation officer that on several occasions he had

      signed out from Grace House and spent the weekend at his mother’s residence

      in Blackford County. He was also observed on December 1 at a Blackford

      County High School basketball game. These actions were in violation of the

      court’s release of Whitesell to Grace House, and the trial court issued an arrest

      warrant for Whitesell’s arrest and ordered him to appear before the court.


[8]   On December 18, 2018, the trial court issued an order rejecting the November

      plea agreement. The court stated that it was “obligated” to reject the plea

      agreement, which capped his sentence at four years, for reasons including that

      Whitesell left Grace House in contravention of the court’s order, Whitesell told

      Lt. Crouse that he was probably the only person bringing drugs of that quantity

      into Hartford County, and:



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-983 | December 17, 2019   Page 4 of 10
                C. That a plea agreement of the type presented here minimizes
                the impact of the defendant’s involvement in the drug culture in
                Blackford County, Indiana, and would further permit the
                defendant to profit from his own wrong by attributing credit time
                for a rehabilitation placement which was repeatedly violated by
                the defendant during his period of placement at the Grace House
                Rehabilitation Center.


       Id. at 127.


[9]    On April 9, 2019, Whitesell executed another plea agreement, under which he

       would plead guilty to Level 5 felony dealing in methamphetamine with the

       court “having full discretion over the entire sentence,” and the State would

       dismiss the remaining charges. 1 Id. at 159. The court took the plea agreement

       under advisement and set the matter for a hearing.


[10]   At the sentencing hearing, Lt. Crouse testified about his interview with

       Whitesell. Lt. Crouse understood Whitesell’s responses in the interview to

       mean that Whitesell was responsible for bringing large quantities of drugs into

       the county and that incarcerating Whitesell would stop the flow of drugs,

       although Lt. Crouse acknowledged on cross-examination that the drug problem

       still persisted despite Whitesell’s incarceration. Whitesell testified that at the




       1
         The record reflects that, prior to this April plea agreement, Whitesell had executed a second plea agreement
       on March 21, 2019, under which he would plead guilty to Level 5 felony dealing in methamphetamine and
       serve four years on home detention, and the State would dismiss the other charges. According to Appellant’s
       Brief, the court rejected this agreement in open court.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-983 | December 17, 2019                  Page 5 of 10
       time of the interview he was intoxicated on heroin, methamphetamine, and

       marijuana and had exaggerated his involvement in the drug trade.


[11]   Whitesell testified that he was employed, working forty and sometimes fifty

       hours per week. His employer submitted a letter on his behalf, stating that

       Whitesell had been honest and forthright about his past mistakes and legal

       issues and that he was a valuable team member and was dependable and

       trustworthy. At the time of sentencing, Whitesell was living in an apartment

       with his girlfriend and their one-year-old daughter. His landlord submitted a

       letter in support of Whitesell, sharing that Whitesell was a reliable tenant, paid

       rent on time, and performed labor or tasks around the apartment complex,

       sometimes for pay and sometimes as a volunteer. Whitesell acknowledged his

       addiction problems and testified that he had completed the Grace House drug

       treatment program. He asked for the court to impose home detention and

       monitoring and stated he would be willing to participate in any recommended

       program. He told the court, “If it can make me a better person, a better parent,

       a better spouse, I’m willing to do any of it.” Transcript at 14.


[12]   The State presented evidence that while Whitesell completed a drug treatment

       program at Grace House on November 2018, in March 21, 2019, Whitesell

       relapsed following a court hearing and used heroin. He violated the court’s

       order while at Grace House by using a night pass more than once to stay at his

       mother’s residence. The presentence report admitted into evidence, with

       attached probable cause affidavit, reflected that as a juvenile Whitesell had

       adjudications for what would be Class D felony battery and Class D felony theft

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-983 | December 17, 2019   Page 6 of 10
       if committed by an adult. He had adult convictions in 2005 for Class D felony

       theft, Class A misdemeanor criminal trespass. In 2006, he pled guilty to Class D

       felony theft and in 2007, he pled guilty to Class A misdemeanor operating while

       intoxicated endangering a person. In 2011, he was convicted for Class D felony

       theft, and later that year, he was convicted of Class D felony receiving stolen

       property. In 2013, Whitesell was arrested for burglary and conversion and

       convicted of Class A misdemeanor conversion. In 2017, he pled guilty to Class

       C misdemeanor operating a vehicle with a schedule I or II controlled substance

       in a person’s body.


[13]   The trial court considered as aggravating factors Whitesell’s prior criminal

       history, his violation of the terms of his release to Grace House, and the impact

       of the offense on the community. The court considered as mitigating the

       hardship on Whitesell’s girlfriend and daughter through the loss of income and

       a parent. The court imposed a six-year sentence in the Indiana Department of

       Correction (DOC), recommending that Whitesell be placed in the Purposeful

       Incarceration program at the DOC. Whitesell now appeals.


                                       Discussion & Decision
[14]   Whitesell contends that his sentence is inappropriate. Pursuant to Ind.

       Appellate Rule 7(B), this Court “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.” Our Supreme Court has explained that the principal role of

       appellate review should be to attempt to leaven the outliers, “not to achieve a
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-983 | December 17, 2019   Page 7 of 10
       perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225

       (Ind. 2008). “‘[W]e must and should exercise deference to a trial court’s

       sentencing decision, both 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.’” Rogers v.

       State, 878 N.E.2d 269, 275 (Ind. Ct. App. 2007) (quoting Stewart v. State, 866

       N.E.2d 858, 866 (Ind. Ct. App. 2007)), trans. denied. “Such 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, 29 N.E.3d 111, 122

       (Ind. 2015). Whitesell bears the burden of persuading us that his sentence is

       inappropriate. Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans.

       denied.


[15]   When determining whether a sentence is inappropriate, the advisory sentence is

       the starting point the Legislature has selected as an appropriate sentence for the

       crime committed. Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006). Here,

       Whitesell was convicted of one Level 5 felony, for which the sentencing range

       is between one and six years, with the advisory being three years. See Ind. Code

       § 35-50-2-6. The trial court sentenced Whitesell to six years, recommending

       that he be placed in the Purposeful Incarceration program at the DOC.

       Whitesell urges that his “maximum sentence allowable” was not appropriate as

       it failed to consider the progress he made since arrest in terms of home life,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-983 | December 17, 2019   Page 8 of 10
       employment, and drug treatment, and he asks us to revise his sentence to five

       years executed as a direct commitment on electronic monitoring home

       detention. Appellant’s Brief at 9.


[16]   We have recognized that “[t]he nature of the offense is found in the details and

       circumstances of the commission of the offense and the defendant’s

       participation.” Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). As to

       the nature of the offense, the record shows that Whitesell acknowledged that he

       played a significant role in the distribution of drugs in Blackford County,

       including heroin and methamphetamine. We find no compelling evidence

       portraying the nature of the offense “in a positive light,” nor does Whitesell

       offer any argument in that regard. See Stephenson, 29 N.E.3d at 122. The record

       before us does not warrant revision of Whitesell’s sentence based on the nature

       of the offense.


[17]   “The character of the offender is found in what we learn of the offender’s life

       and conduct.” Croy, 953 N.E.2d at 664. Whitesell urges that he went to

       treatment, complied with Grace House rules, obtained employment, and was a

       reliable tenant and that his improved character demonstrates that his sentence

       was inappropriate. While we commend the progress Whitesell appears to have

       made, it is well settled that, “[w]hen considering the character of the offender,

       one relevant factor is the defendant’s criminal history.” Johnson v. State, 986

       N.E.2d 852, 857 (Ind. Ct. App. 2013). Whitesell’s criminal history began in

       2002 and spanned to the current offense. In addition to two juvenile

       adjudications that would have been Class D felonies if committed by an adult,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-983 | December 17, 2019   Page 9 of 10
       he has been convicted as an adult of five felonies and four misdemeanor

       offenses. He has violated probation on at least seven occasions, and he violated

       the trial court’s order requiring him to remain at Grace House during his

       treatment for substance abuse issues.


[18]   The question under App. R. 7(B) is “not whether another sentence is more

       appropriate” but rather “whether the sentence imposed is inappropriate.” Miller

       v. State, 105 N.E.3d 194, 196 (Ind. Ct. App. 2018). Whitesell has not

       established that his six-year sentence is inappropriate.


[19]   Judgment affirmed.


       Robb, J. and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-983 | December 17, 2019   Page 10 of 10
