MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              FILED
this Memorandum Decision shall not be                          May 06 2020, 9:35 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
A. David Hutson                                         Curtis T. Hill, Jr.
Hutson Legal                                            Attorney General of Indiana
Jeffersonville, Indiana                                 Tyler G. Banks
                                                        Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

David Anthony Geiger,                                   May 6, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2009
        v.
                                                        Appeal from the
                                                        Clark Circuit Court
State of Indiana,
                                                        The Honorable
Appellee-Plaintiff.                                     Vicki L. Carmichael, Judge
                                                        Trial Court Cause No.
                                                        10C04-1810-F4-63




Kirsch, Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-CR-2009 | May 6, 2020             Page 1 of 10
[1]   David Anthony Geiger (“Geiger”) appeals the four-year aggregate sentence the

      trial court imposed after Geiger pleaded guilty to dealing in methamphetamine1

      as a Level 5 felony, dealing in a narcotic drug2 as a Level 5 felony, and neglect

      of a dependent3 as a Level 6 felony. On appeal, Geiger raises two issues:


                 I. Whether the trial court abused its discretion by failing to
                 explain why it imposed a sentence that exceeded the sentence
                 recommended by the State; and


                 II. Whether his sentence is inappropriate.


[2]   We affirm.


                                      Facts and Procedural History
[3]   On July 24, 2017, a confidential informant (“CI”) contacted Geiger to buy

      methamphetamine and heroin. Appellant’s Conf. App. Vol. 2 at 14-16. The CI

      met Geiger in Henryville, Indiana. Id. at 14. The CI got into Geiger’s car and

      bought what was later identified as methamphetamine and heroin from Geiger.

      Id. at 14-15. Geiger’s daughter, who was three or four years old at the time,

      was sitting in the back seat of Geiger’s car during the transaction. Id. at 15.




      1
          See Ind. Code § 35-48-4-1.1(a).
      2
          See Ind. Code § 35-48-4-1(a).
      3
          See Ind. Code § 35-46-1-4(a).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2009 | May 6, 2020   Page 2 of 10
[4]   On October 26, 2018, the State charged Geiger with dealing in

      methamphetamine as a Level 4 felony, dealing in a narcotic drug as a Level 4

      felony, and neglect of a dependent as a Level 5 felony. Appellant’s App. Vol. 2 at

      9-10. The State and Geiger entered a plea agreement, in which Geiger agreed

      to plead guilty to lesser included offenses: dealing in methamphetamine and

      dealing in a narcotic drug as Level 5 felonies and neglect of a dependent as a

      Level 6 felony. Id. at 33-34. The parties also agreed that Geiger would serve

      his sentences concurrently but left all remaining sentencing issues to the trial

      court’s discretion. Id.


[5]   The State recommended a three-year aggregate executed sentence, to be

      followed by one year suspended to probation. More specifically, the State

      recommended that the trial court impose four-year sentences on the drug-

      related Level 5 felony convictions, with three years executed in the Department

      of Correction, and one year suspended to probation. Tr. Vol. Two at 20. As to

      the conviction for Level 6 felony neglect of a dependent, the State

      recommended a two-year executed sentence, with all sentences to run

      concurrently, as the plea agreement had stipulated. Id. At the sentencing

      hearing, the trial court stated the following:


              So what the court’s going to impose as a sentence is a four-year
              term on [the Level 5 felony dealing convictions]. And a two-year
              term on [the Level 6 felony neglect of dependent conviction],
              again, all to run concurrently. The court will suspend one year of
              that sentence . . . .




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2009 | May 6, 2020   Page 3 of 10
      Id. at 21. On July 30, 2019, the trial court issued a written order regarding

      Geiger’s sentence. This order imposed a different sentence than the sentence

      the trial court announced at the sentencing hearing. On the dealing

      convictions, the trial court imposed four-year fixed sentences. Appellant’s Conf.

      App. Vol. 2 at 55. It also imposed a fixed, three-year sentence on the neglect of

      dependent conviction, suspended one year of this sentence to probation, and,

      most notably, increased the sentence on this Level 6 conviction from two years

      to three years. Id. The sentences were still ordered to be served concurrently.

      Id.


[6]   Geiger appealed, and before the appeal was fully briefed, the State filed a

      motion for remand so the trial court could correct Geiger’s sentence for the

      Level 6 felony because the three-year sentence the trial court imposed exceeded

      the statutory maximum for Level 6 felonies. See Ind. Code § 35-50-2-7(b).4 We

      granted the motion. On remand, the trial court imposed concurrent sentences

      of four years for the two Level 5 dealing convictions and a two-year sentence

      for Geiger’s Level 6 felony neglect of a dependent conviction, with one year of

      the neglect of a dependent sentence suspended to probation. Appellant’s Supp.

      App. Vol. 2 at 21. We will provide additional facts as necessary.




      4
       The advisory sentence for a Level 6 felony is one year, the minimum sentence is six months, and the
      maximum sentence is two-and-one-half years. Ind. Code § 35-50-2-7(b).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2009 | May 6, 2020                    Page 4 of 10
                                     Discussion and Decision

                                       I. Abuse of Discretion
[7]   Geiger argues that the trial court abused its discretion by failing to explain why

      it imposed a sentence that exceeded the three-year executed sentence proposed

      by the State. Sentencing decisions lie within the discretion of the trial court.

      Helsley v. State, 43 N.E.3d 225, 228 (Ind. 2015) (citing Cardwell v. State, 895

      N.E.2d 1219, 1222 (Ind. 2008)). We will reverse a trial court’s sentence only

      upon a showing of an abuse of that discretion -- a decision that is clearly against

      the logic and circumstances of the facts facing the trial court. State v. Bishop,

      800 N.E.2d 918, 922 (Ind. 2003). The Indiana Supreme Court has held that an

      abuse of discretion occurs in four ways, where the trial court: 1) fails to enter a

      sentencing statement; 2) cites an aggravating or mitigating factor that is not

      supported by the record; 3) fails to cite factors that are clearly supported by the

      record; and 4) relies on reasons that are improper as a matter of law. Anglemyer

      v. State, 868 N.E.2d 482, 490-91 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218

      (Ind. 2007).


[8]   Geiger concedes there is no legal authority for requiring a trial court to explain

      why it rejected the State’s sentencing recommendation. However, he contends

      that requiring an explanation here would serve the purpose of fostering public

      confidence in the criminal justice system. See id. He argues: “[I]t would be

      very difficult for a reasonable observer of these proceedings to understand why

      Geiger will spend four years in prison instead of three without perceiving that a

      mistake has been made.” Appellant’s Reply Br. at 4. Geiger also argues that

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2009 | May 6, 2020   Page 5 of 10
       requiring a statement here would aid appellate review because “the record is

       sparse [because] there was no trial, and there was not much in the way of

       evidence submitted at the sentencing hearing.” Appellant’s Br. at 11.


[9]    The trial court did not abuse its discretion in failing to explain why it did not

       adopt the State’s sentencing recommendation. The Indiana Supreme Court has

       ruled that an abuse of discretion in sentencing occurs under four circumstances,

       and the failure of a trial court to explain why it did not accept the State’s

       recommendation is not one of them. See Anglemyer, 868 N.E.2d at 490-91. To

       the extent that Geiger argues that his approach would aid appellate review, he

       does not explain why review in this case is hindered any more than any other

       sentencing appeal arising from a guilty plea. The record is often “sparse” in all

       sentencing cases that do not involve a trial. Thus, we decline Geiger’s

       invitation to ignore the Indiana Supreme Court’s precedent about what

       constitutes an abuse of discretion at sentencing. The trial court did not abuse its

       discretion in not explaining why it did not accept the State’s proposed sentence

       for Geiger.


                                        II. Inappropriateness
[10]   Under 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, 868 N.E.2d at 491. The nature of the offense compares the

       defendant’s actions with the required showing to sustain a conviction under the


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2009 | May 6, 2020   Page 6 of 10
       charged offense, Cardwell, 895 N.E.2d at 1224, while the character of the

       offender permits a broader consideration of the defendant’s character. Anderson

       v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013). Whether a sentence is

       inappropriate turns on the culpability of the defendant, the severity of the crime,

       the damage done to others, and other factors that come to light in a given case.

       Cardwell, 895 N.E.2d at 1224.


[11]   We defer to the trial court’s decision, and our goal is to determine whether an

       appellant’s sentence is inappropriate, not whether some other sentence would

       be more appropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “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). We seek to leaven the outliers, not to achieve a

       perceived correct result. Cardwell, 895 N.E.2d at 1225.


[12]   As to the nature of his offenses, Geiger argues there was nothing exceptional

       about his crimes. We disagree. Geiger dealt two different drugs in public in a

       vehicle, in which his young daughter was a passenger. His daughter was only

       three or four years old at the time of the of the offense. “The younger the

       victim, the more culpable the defendant's conduct.” Hamilton v. State, 955

       N.E.2d 723, 727 (Ind. 2011). Geiger’s decision to bring his daughter into the

       “‘violent and dangerous criminal milieu’” that comes with dealing drugs does

       not paint the nature of his offenses in a positive light. See Polk v. State, 683

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2009 | May 6, 2020   Page 7 of 10
       N.E.2d 567, 571 (Ind. 1997) (quoting Reynolds/Herr v. State, 582 N.E.2d 833,

       839 (Ind. Ct. App. 1991)).


[13]   As to his character, Geiger argues that his sentence is inappropriate because of

       his addictions and mental illnesses. When he was sixteen years old, Geiger

       began using alcohol and marijuana, and at the age of twenty-four, he began

       using heroin. Appellant’s Conf. App. Vol. 2 at 40. In 2016, Geiger attempted to

       overcome his addictions by attending a two-and-one-half-week inpatient

       treatment program. Id. However, at the time the PSI was filed, Geiger was

       using heroin daily and marijuana twice per week. Id. As to his mental

       illnesses, Geiger notes that about three years before he was sentenced, Geiger

       was diagnosed with depression and anxiety Id.


[14]   Geiger’s sentence is not inappropriate in light of his character. First, even

       though Geiger’s criminal record does not include egregious crimes, his criminal

       history is substantial. In 2010, Geiger was adjudicated as a delinquent child for

       possession of marijuana. Id. at 41. In 2016, Geiger was convicted of Class A

       misdemeanor theft, and in 2017, he was convicted of the same offense. Id. at

       41-42. In 2018, Geiger was convicted in Kentucky for two offenses: wanton

       endangerment in 1st degree and possession of a controlled substance 1st degree.

       Id. at 42. Soon after these Kentucky convictions were entered, Geiger was

       convicted in Clark County of unlawful possession of a syringe as a Level 6

       felony. Id. at 42-43. Geiger’s criminal history proves that his sentence is not

       inappropriate when considering his character.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2009 | May 6, 2020   Page 8 of 10
[15]   Furthermore, we are not persuaded that Geiger’s mental illnesses and drug use

       make his sentence inappropriate. Geiger has shown no nexus between his

       depression and anxiety and his dealing drugs within the presence of his

       daughter. See Steinberg v. State, 941 N.E.2d 515, 534 (Ind. Ct. App. 2011)

       (quoting Corralez v. State, 815 N.E.2d 1023, 1026 (Ind. Ct. App. 2004)) (“‘[I]n

       order for a [defendant’s] mental history to provide a basis for establishing a

       mitigating factor, there must be a nexus between the defendant’s mental health

       and the crime in question.”). As to his drug use and addictions, we

       acknowledge that these problems can be considered mitigating factors, but they

       can also be considered aggravating when a defendant has had prior

       opportunities for rehabilitation yet squandered them. Cf. Caraway v. State, 959

       N.E.2d 847, 852 (Ind. Ct. App. 2011) (“We are not persuaded by Caraway’s

       argument that he was ‘blind’ to his alcoholism and was therefore unable to

       pursue treatment”), trans. denied. Here, Geiger had completed a two-and-one-

       half week inpatient program within a year of his present crimes, but he

       continued to use drugs, heroin on a daily basis and marijuana twice per week.

       Appellant’s Conf. App. Vol. 2 at 40. Thus, Geiger’s mental illnesses and drug use

       and addictions do not make his sentence inappropriate.


[16]   In sum, the trial court did not abuse its discretion in not adopting the sentence

       recommended by the State, and Geiger’s sentence is not inappropriate

       considering the nature of his offenses and his character.


[17]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2009 | May 6, 2020   Page 9 of 10
Najam, J., and Brown, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2009 | May 6, 2020   Page 10 of 10
