      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                      FILED
      regarded as precedent or cited before any                              Jul 09 2020, 9:11 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
      Christopher Sturgeon                                      Curtis T. Hill, Jr.
      Clark County Public Defender Office                       Attorney General of Indiana
      Jeffersonville, Indiana
                                                                Benjamin J. Shoptaw
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Steven A. Trusty,                                         July 9, 2020
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                19A-CR-2982
              v.                                                Appeal from the Clark Circuit
                                                                Court
      State of Indiana,                                         The Honorable Bradley B. Jacobs,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                10C02-1708-F2-32



      Mathias, Judge.


[1]   Steven Trusty (“Trusty”) was convicted in Clark Circuit Court of Level 5 felony

      possession of methamphetamine, Level 5 felony possession of cocaine, Level 5


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2982 | July 9, 2020                   Page 1 of 11
      felony possession of a narcotic drug, and Level 6 felony unlawful possession of

      a legend drug. The trial court imposed a three-year aggregate sentence, with

      two years executed and one year suspended. Trusty appeals his sentence and

      raises two issues:


        I. Whether the trial court abused its discretion when it failed to find two
           proposed mitigating circumstances; and

       II. Whether Trusty’s three-year sentence is inappropriate in light of the nature
           of the offense and the character of the offender.

[2]   We affirm.


                                  Facts and Procedural History
[3]   On August 8, 2017, law enforcement officers observed Trusty and a female

      passenger unconscious in a vehicle parked in a motel parking lot in Clark

      County, Indiana. The officers roused Trusty and his passenger by knocking on

      the car windows. The female passenger gave the officers a false identity. While

      searching the vehicle for the passenger’s identification, the officers found

      several plastic bags containing powdery and rock-like substances that were later

      identified as methamphetamine and cocaine. The officers found syringes and

      pills later identified as Carisoprodol, Hydrocodone, and Gabapentin. They

      found a digital scale, straw, and spoons all containing white residue. They also

      discovered a loaded firearm behind the driver’s seat of the vehicle. Trusty

      admitted that he was at the motel to sell methamphetamine.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2982 | July 9, 2020   Page 2 of 11
[4]   The State charged Trusty with seven counts including Level 3 felony dealing in

      methamphetamine, Level 5 felony possession of methamphetamine, Level 5

      felony possession of cocaine, Level 5 felony possession of a narcotic drug, Level

      6 felony possession of a controlled substance, and two counts of Level 6 felony

      possession of a legend drug. In October 2018, Trusty filed a motion to suppress

      the property seized during the warrantless search of his vehicle. The trial court

      denied the motion.


[5]   Shortly thereafter, Trusty entered into a plea agreement with the State. He

      agreed to plead guilty to Level 5 felony possession of methamphetamine, Level

      5 felony possession of cocaine, Level 5 felony possession of a narcotic drug, and

      Level 6 felony unlawful possession of a legend drug. In exchange for Trusty’s

      guilty plea, the State dismissed the remaining charges, including the Level 3

      felony dealing charge. The plea agreement did not provide any terms

      concerning Trusty’s sentence. The trial court accepted Trusty’s guilty plea on

      December 10, 2018.


[6]   Trusty’s sentencing hearing was continued and set for March 12, 2019. Trusty

      failed to appear for the hearing, and a warrant was issued for his arrest. Trusty

      was taken into custody in August 2019.1 After several continuances were

      granted, his sentencing hearing was held on November 20, 2019.




      1
        From reviewing the record, we conclude that it is reasonably likely that Trusty was absent from Indiana due
      to pending criminal charges in Kentucky.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2982 | July 9, 2020                     Page 3 of 11
[7]   At the sentencing hearing, the trial court considered Trusty’s criminal history.

      In 2014, Trusty was convicted in Florida of three counts of Violation of the

      Uniform Code of Military Justice-Indecent Act with a Child and one count of

      Uniform Code of Military Justice-Assault on a Child. Trusty also had ten

      pending charges in Kentucky for various crimes including burglary, possession

      of heroin, and possession of a firearm. The court did not consider Trusty’s

      military service when imposing the sentence because Trusty received a bad

      conduct discharge from the Navy.


[8]   The trial court declined to find aggravating and mitigating circumstances and

      ordered Trusty to serve the advisory three-year sentence for each Level 5 felony

      conviction, with two years executed in the Department of Correction and one

      year suspended to probation. The court also ordered Trusty to serve one year

      suspended to probation for the Level 6 felony conviction. All sentences were to

      be served concurrent to each other resulting in an aggregate three-year sentence

      with one year suspended to probation. The court also stated that it would

      consider a modification to Trusty’s sentence if he successfully completed “the

      clinically appropriate substance abuse treatment program as determined by” the

      Department of Correction. Appellant’s App. p. 120. Trusty now appeals. 2




      2
        We do not agree with the State’s assertion that Trusty waived the right to appeal his sentence. The waiver
      provision in Trusty’s plea agreement vaguely stated that Trusty “waives right to appeal.” Appellant’s App. p.
      71. During the guilty plea hearing, the trial court told Trusty he was waiving his right to appeal his
      conviction. Tr. p. 24. Trusty was not advised that he was waiving his right to appeal his sentence. And at his
      sentencing hearing, Trusty was advised that he had the right to appeal his sentence. Tr. p. 49. Under these

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2982 | July 9, 2020                      Page 4 of 11
                                            I. Mitigating Circumstances

[9]    Trusty argues that the trial court abused its discretion by failing to consider his

       proffered mitigating circumstances. In its sentencing order, “the trial court must

       enter a statement including reasonably detailed reasons or circumstances for

       imposing a particular sentence.” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.

       2007), modified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2007). We review

       the sentence for an abuse of discretion. Id. at 490. An abuse of discretion occurs

       if “the decision is clearly against the logic and effect of the facts and

       circumstances[.]” Id. A trial court abuses its discretion if it (1) fails “to enter a

       sentencing statement at all[,]” (2) enters “a sentencing statement that explains

       reasons for imposing a sentence—including a finding of aggravating and

       mitigating factors if any—but the record does not support the reasons,” (3)

       enters a sentencing statement that “omits reasons that are clearly supported by

       the record and advanced for consideration,” or (4) considers reasons that “are

       improper as a matter of law.” Id. at 490–91. However, the relative weight or

       value assignable to reasons properly found, or to those which should have been

       found, is not subject to review for abuse of discretion. Id. at 491.


[10]   The advisory sentence is the starting point our legislature has selected as an

       appropriate sentence for the crime committed. Gomillia v. State, 13 N.E.3d 846,

       852 (Ind. 2014). A trial judge may impose any sentence within the statutory




       circumstances, Trusty did not knowingly and voluntarily waive his right to appeal his sentence. See Johnson v.
       State, 145 N.E.3d 785, 787 (Ind. 2020).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2982 | July 9, 2020                      Page 5 of 11
       range without regard to the existence of aggravating or mitigating factors. Id.

       However, if the trial court finds the existence of aggravating or mitigating

       circumstances, then the court is required to give “a statement of the court’s

       reasons for selecting the sentence that it imposes.” Id. (quoting Ind. Code § 35-

       38-1-3).


[11]   Here, the trial court acted within its discretion when it declined to find

       aggravating and mitigating circumstances and imposed the advisory sentence.

       Nevertheless, we will briefly address Trusty’s claim that the trial court abused

       its discretion by failing to consider the following proffered mitigating

       circumstances: 1) that Trusty is likely to respond affirmatively to probation or

       short-term imprisonment, and 2) that Trusty suffers from post-traumatic stress

       disorder (“PTSD”). “An allegation that the trial court failed to identify or find a

       mitigating factor requires the defendant to establish that the mitigating evidence

       is both significant and clearly supported by the record.” Anglemyer, 868 N.E.2d

       at 493.


[12]   Under the circumstances of this case, we cannot conclude that the trial court

       failed to consider that Trusty is likely to respond affirmatively to short-term

       imprisonment or probation. The executed portion of Trusty’s sentence is two

       years, which is one year less than the advisory sentence and a relatively short

       term of imprisonment. The court considered Trusty for an alternative

       placement, but Trusty did not qualify because he is not an Indiana resident.

       And the court stated that it would consider a modification to Trusty’s sentence

       if he successfully completed “the clinically appropriate substance abuse

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2982 | July 9, 2020   Page 6 of 11
       treatment program as determined by” the Department of Correction.

       Appellant’s App. p. 120.


[13]   Next, Trusty argues that the trial court abused its discretion when failed to find

       that he suffers from PTSD as a mitigating circumstance. But Trusty did not ask

       the trial court to find this mitigator, and therefore, the trial court did not abuse

       its discretion by failing to consider it. See Anglemyer, 868 N.E.2d at 492; Koch v.

       State, 952 N.E.2d 359, 375 (Ind. Ct. App. 2011), trans. denied. Moreover, this

       alleged mitigating circumstance is not clearly supported by the record. Trusty

       has never been diagnosed with PTSD and has never received treatment for it.

       He merely speculated that he suffers from PTSD.


[14]   For all of these reasons, we conclude that the trial court did not abuse its

       discretion when it sentenced Trusty.


                                          II. Inappropriate Sentence

[15]   Trusty also argues that his aggregate three-year sentence, with two years

       executed in the Department of Correction and one year suspended to probation,

       is inappropriate in light of the nature of the offense and the character of the

       offender. Pursuant to Indiana Appellate Rule 7(B), “[t]he 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.” 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 we understand and recognize the unique


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2982 | July 9, 2020   Page 7 of 11
       perspective a trial court brings to its sentencing decisions. Rose v. State, 36

       N.E.3d 1055, 1063 (Ind. Ct. App. 2015). “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).


[16]   The determination of whether we regard a sentence as inappropriate “turns on

       our sense of the culpability of the defendant, the severity of the crime, the

       damage done to others, and myriad other factors that come to light in a given

       case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008)). The appropriate question is not

       whether another sentence is more appropriate, but whether the sentence

       imposed is inappropriate. Rose, 36 N.E.3d at 1063.


[17]   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 a perceived ‘correct’ result in each

       case.” Cardwell, 895 N.E.2d at 1225. Our review under 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. And 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).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2982 | July 9, 2020   Page 8 of 11
[18]   A person convicted of a Level 5 felony “shall be imprisoned for a fixed term of

       between one (1) and six (6) years, with the advisory sentence being three (3)

       years.” Ind. Code § 35-50-2-6. For his three Level 5 felony convictions, Trusty

       was ordered to serve concurrent terms of the advisory three-year sentence. The

       trial court ordered him to serve two years executed and suspended one year to

       probation.3 To determine whether Trusty’s sentence is inappropriate, we

       consider all aspects of the penal consequences imposed by the trial court in

       sentencing the defendant, including whether a portion of the sentence is ordered

       suspended “or otherwise crafted using any of the variety of sentencing tools

       available to the trial judge.” Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.

       2010).


[19]   Trusty argues that his sentence is inappropriate because his offenses were non-

       violent, he is sober and willing to treat his substance abuse issues, and he took

       responsibility for his offenses by pleading guilty. Trusty also claims his sentence

       is inappropriate because he is well-educated and served fourteen years in the

       Navy.


[20]   Trusty had five illegal substances in his possession when he was arrested:

       cocaine, methamphetamine, Carisoprodol, Hydrocodone, and Gabapentin. He

       also had a loaded handgun in his vehicle and admitted to law enforcement




       3
         Trusty was also ordered to serve one year suspended to supervised probation for his Level 6 felony
       conviction to be served concurrent to the sentences imposed for his Level 5 felony convictions. The advisory
       sentence for a Level 6 felony conviction is one year. See Ind. Code § 35-50-2-7.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2982 | July 9, 2020                     Page 9 of 11
       officers that he was planning to sell the methamphetamine. Trusty has not met

       his burden of establishing that his three-year sentence is inappropriate in light of

       the nature of his offenses.


[21]   Trusty has issues with substance abuse but has not taken any steps to address

       his addiction. His recent sobriety is likely the result of the period of

       incarceration he served in Kentucky before he was sentenced in this case. His

       service in the Navy reflects positively on his character, but only minimally.

       Trusty received a “bad conduct discharge” from the military after he was found

       guilty of four violations of the Uniform Code of Military Justice. Appellant’s

       Conf. App. p. 85. And his decision to plead guilty was likely pragmatic after his

       motion to suppress the evidence found during the search of his vehicle was

       denied. The State also dismissed the Level 3 felony dealing charge in exchange

       for Trusty’s guilty plea.


[22]   Recognizing that Trusty’s offenses were committed at least in part due to his

       substance abuse issues, the trial court is allowing Trusty to serve one year of his

       three-year sentence on probation. The court also stated that it will consider

       modifying Trusty’s sentence if he completes an appropriate substance abuse

       program. Trusty’s three-year aggregate sentence, with one year suspended to

       probation, is not inappropriate in light of his character.


[23]   Trusty has not met his burden of persuading us that his sentence is an outlier

       that warrants revision. For all of these reasons, we conclude that Trusty’s

       aggregate three-year sentence, with two years executed and one year suspended


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2982 | July 9, 2020   Page 10 of 11
       to probation, is not inappropriate in light of the nature of the offenses and the

       character of the offender.


                                                 Conclusion
[24]   The trial court did not abuse its discretion when it sentenced Trusty. And

       Trusty’s aggregate three-year sentence, with two years executed and one year

       suspended to probation, is not inappropriate in light of the nature of the

       offenses and the character of the offender.


[25]   Affirmed.


       Riley, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2982 | July 9, 2020   Page 11 of 11
