MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Apr 18 2018, 10:30 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy P. Broden                                        Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana

                                                         Marjorie Lawyer-Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Davon Martell Ganier,                                    April 18, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A05-1710-CR-2305
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Randy J. Williams
Appellee-Plaintiff                                       Trial Court Cause No.
                                                         79D01-1611-F2-32



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A05-1710-CR-2305 | April 18, 2018              Page 1 of 6
[1]   Davon Martell Ganier appeals the trial court’s order he execute twelve years of

      his eighteen-year sentence. He argues the amount of time ordered executed in

      the Department of Correction is inappropriate. We affirm.



                                Facts and Procedural History
[2]   On November 1, 2016, the State charged Ganier with seven counts stemming

      from an investigation of heroin distribution at Flenard Milsap’s house: two

      counts of Level 4 felony dealing in a narcotic drug 1 and one count each of Level

      2 felony dealing in a narcotic drug; 2 Level 2 felony conspiracy to commit

      dealing in a narcotic drug; 3 Class B misdemeanor possession of marijuana;

      Level 3 felony dealing in a narcotic drug; 4 Level 4 felony possession of a

      narcotic drug; 5 and Level 5 felony possession of a narcotic drug. 6 On July 26,

      2017, Ganier accepted a plea agreement in which he pled guilty to the two

      Level 2 felonies in exchange for the State’s dismissal of the remaining five

      charges. The plea left sentencing to the trial court’s discretion.




      1
          Ind. Code § 35-48-4-1(c) (2014).
      2
          Ind. Code § 35-48-4-1(e) (2014).
      3
          Ind. Code § 35-41-5-2 (2014) (conspiracy); Ind. Code § 35-48-4-1(e) (2014).
      4
          Ind. Code § 35-48-4-1(d) (2014).
      5
          Ind. Code § 35-48-4-6(d) (2014).
      6
          Ind. Code § 35-48-4-6(b) (2014).


      Court of Appeals of Indiana | Memorandum Decision 79A05-1710-CR-2305 | April 18, 2018   Page 2 of 6
[3]   On September 12, 2017, the trial court held a sentencing hearing and sentenced

      Ganier to eighteen years for each Level 2 felony, to be served concurrently.

      The trial court ordered


              the defendant shall execute twelve (12) years of said sentence
              through the Indiana Department of Corrections [sic] followed by
              three (3) years executed through Tippecanoe County Community
              Corrections at a level to be determined by them. . . . [and] three
              years of the sentences of imprisonment should be, and the same
              hereby are, suspended and the defendant placed on supervised
              probation.


      (App. Vol. II at 15.)



                                 Discussion and Decision
[4]   Under Ind. Appellate Rule 7(B), we may revise a sentence if, after due

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

      light of 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 (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 defendant’s sentence is inappropriate, not

      whether some other sentence would be more appropriate. Conley v. State, 972

      N.E.2d 864, 876 (Ind. 2012), reh’g denied. Ganier, as the appellant, bears the




      Court of Appeals of Indiana | Memorandum Decision 79A05-1710-CR-2305 | April 18, 2018   Page 3 of 6
      burden of demonstrating his sentence is inappropriate. Childress v. State, 848

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


[5]   Ganier “does not challenge the aggregate length of the sentence imposed, but

      rather the trial court’s decision to order a majority of the sentence to be

      executed in the Department of Correction.” (Br. of Appellant at 5.) “The place

      that a sentence is to be served is an appropriate focus for application of our

      review and revise authority.” Biddinger v. State, 868 N.E.2d 407, 414 (Ind.

      2007). However, it is “quite difficult for a defendant to prevail on a claim that

      the placement of his or her sentence is inappropriate.” Fonner v. State, 876

      N.E.2d 340, 343 (Ind. Ct. App. 2007). As we explained in Fonner:


              As a practical matter, trial courts know the feasibility of
              alternative placements in particular counties or communities.
              For example, a trial court is aware of the availability, costs, and
              entrance requirements of community corrections placements in a
              specific locale. Additionally, the question under Appellate Rule
              7(B) is not whether another sentence is more appropriate; rather,
              the question is whether the sentence imposed is inappropriate. A
              defendant challenging the placement of a sentence must convince
              us that the given placement is itself inappropriate.


      Id. at 343-4.


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

      point for determining the appropriateness of a sentence. Anglemyer, 868 N.E.2d

      at 494. The sentencing range for a Level 2 felony is ten to thirty years, with an

      advisory sentence of seventeen and one-half years. Ind. Code § 35-50-2-4.5.

      The trial court sentenced Ganier to eighteen years. The nature of Ganier’s
      Court of Appeals of Indiana | Memorandum Decision 79A05-1710-CR-2305 | April 18, 2018   Page 4 of 6
      crimes is unremarkable - he conspired with others to possess and sell heroin

      between July 1 and October 25, 2016, and he possessed and sold heroin in the

      presence of a child on October 25, 2016. 7


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

      defendant’s criminal history. Johnson, 986 N.E.2d at 857. The significance of

      criminal history varies based on the gravity, nature, and number of prior

      offenses in relation to the current offense. Id. Ganier’s criminal history is

      lengthy. He has multiple juvenile adjudications and adult misdemeanor

      convictions. While those adult convictions are misdemeanors, there were four

      pending petitions to revoke Ganier’s probation, and he was on probation for

      two different offenses when he committed the crimes at issue in this case.

      Ganier reported he used drugs daily and has defied the separate trial court

      orders requiring him to engage in substance abuse treatment. At the sentencing

      hearing, Ganier’s counsel asked him on direct examination, “if you were given

      probation today and you were let out without any supervision, you’re going to

      relapse, you’re going to be in trouble, you’re going to be back here, do you

      agree with that?” (Tr. Vol. II at 43.) Ganier answered, “Yes.” (Id.)


[8]   Based on the nature of his crime and Ganier’s character, we are unconvinced

      his placement in the Department of Correction for twelve years is




      7
        Ganier also argues, regarding the nature of his offense, “he was raised without the benefit of a father and
      was recruited to commit the instant offenses by an individual whom he viewed as his uncle.” (Br. of
      Appellant at 7.) We find this argument unpersuasive considering Ganier’s escalating criminal history and
      failure to rehabilitate.

      Court of Appeals of Indiana | Memorandum Decision 79A05-1710-CR-2305 | April 18, 2018                Page 5 of 6
       inappropriate. His criminal history alone demonstrates his inability to

       rehabilitate his behavior when given less restrictive supervision. See Fonner, 876

       N.E.2d at 344 (placement in the Department of Correction not inappropriate

       when prior, less restrictive efforts at rehabilitation have been unsuccessful).



                                               Conclusion
[9]    We hold Ganier has not carried his burden of persuading us that the amount of

       time ordered executed in the Department of Correction is inappropriate based

       upon his character and the nature of the offenses he committed. Accordingly,

       we affirm.


[10]   Affirmed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1710-CR-2305 | April 18, 2018   Page 6 of 6
