                                                                           Nov 23 2015, 8:36 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Donald E. C. Leicht                                       Gregory F. Zoeller
      Kokomo, Indiana                                           Attorney General of Indiana

                                                                Christina D. Pace
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Ralph Jackson,                                            November 23, 2015
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                34A02-1505-CR-453
              v.                                                Appeal from the Howard Superior
                                                                Court
      State of Indiana,                                         The Honorable William C.
      Appellee-Plaintiff                                        Menges, Judge
                                                                Trial Court Cause No.
                                                                34D01-1305-FB-383



      Bailey, Judge.



                                           Case Summary
[1]   Ralph Jackson (“Jackson”) challenges his twenty-year sentence imposed upon

      his plea of guilty to Dealing in a Schedule II Controlled Substance, as a Class B


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      felony.1 He presents the sole, consolidated issue of whether he was properly

      sentenced. We reverse and remand with instructions.



                              Facts and Procedural History
[2]   On March 19, 2014, Jackson pled guilty to Dealing in a Schedule II Controlled

      Substance. Pursuant to a plea agreement with the State, Jackson was to

      participate in the Howard County Drug Court program. Sentencing was

      deferred pending completion of the program. On March 11, 2015, the State

      filed a notice of intent to terminate Jackson’s participation in the drug court

      program, alleging that Jackson had admitted to smoking a compound called

      Spice and driving another drug court participant to purchase Spice.


[3]   On April 8, 2015, Jackson appeared for sentencing on the Class B felony

      conviction. The probation department recommended a sentence of ten years,

      with at least six years to be executed in the Indiana Department of Correction.

      Jackson agreed with the ten-year recommendation but requested a partial

      suspension. Jackson received a maximum sentence of twenty years, and this

      appeal ensued.



                                  Discussion and Decision



      1
        Ind. Code § 35-48-4-2. Indiana’s Criminal Code was substantially revised, effective July 1, 2014. At all
      times, we refer to the versions of the criminal statutes in effect at the time of Jackson’s offense.

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[4]   Upon conviction of a Class B felony, Jackson was subject to a sentence of

      between six years and twenty years, with ten years as the advisory sentence.

      I.C. § 35-50-2-5. In imposing the maximum sentence upon Jackson, the trial

      court found Jackson’s conduct during drug court program participation and his

      criminal history to be aggravators. No mitigators were found. The trial court

      advised Jackson that he could seek modification of his sentence upon successful

      completion of a Therapeutic Community program. On appeal, Jackson

      contends that the maximum sentence was imposed upon him as punishment for

      his unsuccessful completion of the drug court program.2


[5]   Indiana Code Section 35-38-1-78.1(d) provides that a trial court may impose

      any sentence that is “authorized by statute and permissible under the

      Constitution of the State of Indiana, regardless of the presence or absence of

      aggravating circumstances or mitigating circumstances.” So long as a sentence

      is within the statutory range, it is subject to review only for an abuse of

      discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g

      875 N.E.2d 218 (Ind. 2007). An abuse of discretion occurs if the decision is

      clearly against the logic and effect of the facts and circumstances before the

      court, or the reasonable inferences to be drawn therefrom. Id.




      2
       Jackson makes the troubling assertion that retaliatory sentencing for failure to successfully complete a drug
      court program is commonplace. However, the limited record before us contains no evidence of systemic
      problems of this nature. At this juncture, we have no reason to believe that the instant sentence is anything
      other than an aberration.

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[6]   In order for an appellate court to carry out its function of reviewing the trial

      court’s exercise of sentencing discretion, the appellate court must be advised of

      the reasons for the imposition of the sentence and this necessarily requires a

      statement of facts “which are peculiar to the particular defendant and the crime,

      as opposed to general impressions or conclusions.” Id. A trial court can abuse

      its sentencing discretion by: (1) issuing an inadequate sentencing statement; (2)

      finding aggravating or mitigating factors that are not supported by the record;

      (3) omitting factors that are clearly supported by the record and advanced for

      consideration; or, (4) by finding factors that are improper as a matter of law. Id.


[7]   Here, the trial court expressed its reasons for the sentence imposed:

              Mr. Jackson did make great strides in the Drug Court Program.
              The problem is that while he made strides in accomplishing some
              things he was forced to undertake and accomplish, he apparently
              made no progress whatsoever in the matter of criminal thinking,
              yet he was an active participant in helping other Drug Court
              participants evade detection for repeated drug use. So we have a
              situation where his criminal thinking not only harmed him but it
              directly participated in greater harm to other people. I think
              that’s an aggravating factor. I think his prior criminal history is
              an aggravating factor. I find no mitigating factors. I think,
              therefore, that the aggravating factors outweigh the mitigating
              factors and justify an enhanced sentence.


      (Tr. at 13.) As such, the trial court acknowledged Jackson’s criminal history –

      comprised of a felony conviction and two misdemeanor convictions – and

      otherwise focused exclusively on Jackson’s conduct since his admission to the

      drug court program. However, the trial court was charged with imposing an


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      initial sentence for the crime to which Jackson pled guilty. The State had

      alleged that Jackson delivered methadone and he pled guilty to the charge.

      Purportedly, this involved the sale of ten methadone pills for $81.00.3

      However, the trial court did not issue a sentencing statement that addressed the

      “facts peculiar to the particular defendant” with respect to the crime for which

      he was being sentenced. Anglemyer, 868 N.E.2d at 490. The sparse sentencing

      statement does not facilitate an independent review of the nature of the offense

      and the character of the offender.


[8]   The State asserts that the imposition of the maximum sentence here is akin to

      the imposition of a maximum sanction in probation revocation proceedings,

      because in each instance a defendant “was given a second chance.” (Appellee’s

      Brief at 6.) We disagree. A defendant who receives the conditional liberty of

      probation does so as part of the sentencing process. Although his conduct on

      probation is certainly relevant at a subsequent probation violation hearing

      regarding the possible sanction to be imposed,4 in that situation a probationer

      will not have been deprived of a sentencing review of the facts and

      circumstances peculiar to his initial crime.


[9]   Although a sentencing court has options vis-á-vis the execution of a sentence,

      including such things as community placements, work release, home detention,




      3
       This information appears in an affidavit of probable cause, but was not specifically stated in the Presentence
      Investigation Report or established at the sentencing hearing.
      4
          I.C. § 35-38-2-3.


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       drug court participation and the like,5 the trial court does not have the option of

       selecting a sentence based solely on the defendant’s conduct apart from the

       circumstances of the crime. Because the trial court did not issue an adequate

       sentencing statement, it abused its sentencing discretion. Anglemyer, 868

       N.E.2d at 490.



                                                  Conclusion
[10]   We reverse the twenty-year sentence and remand with instructions to the trial

       court to sentence Jackson for the offense to which he pled guilty, accompanied

       by a sentencing statement that is adequate to facilitate appellate review.


[11]   Reversed and remanded.


       Baker, J., and Mathias, J., concur.




       5
         See I.C. § 35-38-2.6-3 providing in pertinent part: “The court may, at the time of sentencing, suspend the
       sentence and order a person to be placed in a community corrections program as an alternative to
       commitment to the department of correction.”

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