MEMORANDUM DECISION                                                   FILED
Pursuant to Ind. Appellate Rule 65(D), this                       Jul 29 2016, 9:53 am

Memorandum Decision shall not be regarded as                          CLERK
precedent or cited before any court except for the                Indiana Supreme Court
                                                                     Court of Appeals
purpose of establishing the defense of res judicata,                   and Tax Court

collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Gary A. Cook                                              Gregory F. Zoeller
Peru, Indiana                                             Attorney General of Indiana
                                                          Karl Scharnberg
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Pierre Malone,                                           July 29, 2016

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         34A05-1512-CR-2327
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable William G. Menges,
                                                         Jr., Judge
Appellee-Plaintiff.
                                                         Cause No. 34D01-1508-F4-713




Riley, Judge.




Court of Appeals of Indiana | Memorandum Opinion 34A05-1512-CR-2327 | July 29, 2016       Page 1 of 6
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Pierre Malone (Malone), appeals his sentence after

      pleading guilty to dealing in a narcotic drug, a Level 5 felony, Ind. Code § 35-

      48-4-1.


[2]   We affirm.


                                                     ISSUE

[3]   Malone raises one issue on appeal, which we restate as: Whether Malone’s

      sentence is inappropriate in light of the nature of the offense and his character.


                           FACTS AND PROCEDURAL HISTORY

[4]   During the summer of 2015, the Kokomo Police Department Drug Task Force

      had been receiving numerous phone calls and hotline tips that Malone’s house

      was being used as a drug house. In the late afternoon of August 4, 2015, the

      officers maintained a visual surveillance of Malone’s home. The officers saw

      some short-stay traffic, with people frequently arriving and leaving Malone’s

      home. Specifically, at around 4:10 p.m., an unknown man driving a Chevrolet

      truck briefly visited Malone’s home. Shortly thereafter, the police stopped the

      Chevrolet truck, and a K9 officer detected the presence of narcotics inside the

      vehicle; however, they were prescription drugs. At around 5:00 p.m., a man

      driving a maroon Chrysler knocked on Malone’s door and then left. Again, at

      5:28 p.m., an unknown man briefly visited Malone’s house. Two minutes later,

      a man driving a black Chevrolet Trailblazer arrived at Malone’s home and then

      drove off. The officers followed the black Chevrolet and stopped it for a traffic

      Court of Appeals of Indiana | Memorandum Opinion 34A05-1512-CR-2327 | July 29, 2016   Page 2 of 6
      infraction. During the course of the traffic stop, the driver of the black

      Chevrolet admitted that he had swallowed a bag containing one gram of heroin.

      The officers also located a bag inside the center console, and the contents of

      that bag field tested positive for heroin.


[5]   At approximately 6:48 p.m. on August 4, 2015, the police obtained a search

      warrant to search Malone’s home. Prior to executing the search warrant,

      Jacques Malone (Jacques), Malone’s son, was observed leaving the residence

      on a bicycle. Jacques was detained and subsequently transported to the

      Kokomo Police Department. Malone was observed leaving his home driving a

      silver Buick, and he was stopped and detained. At around 8:10 p.m., the

      Kokomo Police Department SWAT team entered Malone’s home. Once

      inside, the officers discovered a piece of foil containing an off-white rock like

      substance, which field tested positive for heroin. More heroin was found on the

      top of a book case. Also recovered from the search was a syringe in the pocket

      of a dress coat inside Malone’s bedroom, and three firearms were seized during

      the search.


[6]   On August 7, 2015, the State filed an Information, charging Malone with Count

      I, dealing in a narcotic drug, a Level 5 felony; Count II, maintaining a common

      nuisance, a Level 6 felony; Count III, unlawful possession of a syringe, a Level

      6 felony; and Count IV, dealing in a narcotic drug, a Level 4 felony. Pursuant

      to a plea agreement, on November 25, 2015, Malone pled guilty in open court

      to Count I, and the State agreed to dismiss the remaining Counts. Sentencing

      was left open to the trial court. On the same day, the trial court conducted

      Court of Appeals of Indiana | Memorandum Opinion 34A05-1512-CR-2327 | July 29, 2016   Page 3 of 6
      Malone’s sentencing hearing, and at the close of the evidence, the trial court

      sentenced Malone to an executed sentence of six years in the Department of

      Correction, with 151 days of credit.


[7]   Malone now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION1

[8]   Malone contends that his six-year sentence is inappropriate in light of the

      nature of the offense and his character. Indiana Appellate Rule 7(B) provides

      that we “may revise a sentence authorized by statute if, after due consideration

      of the trial court’s decision, [we find] that the sentence is inappropriate in light

      of the nature of the offense and the character of the offender.” The burden is on

      the defendant to persuade the appellate court that his or her sentence is

      inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

      “Ultimately the length of the aggregate sentence and how it is to be served are

      the issues that matter.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

      Whether we regard a sentence as appropriate at the end of the day turns on our




      1
        Pursuant to Indiana Administrative Rule 9(G)(2)(b) and Indiana Code section 35-38-1-13, the presentence
      investigation (PSI) report must be excluded from public access. However, in this case, the information
      contained in the PSI report “is essential to the resolution” of Malone’s claim on appeal. Ind. Admin. Rule
      9(G)(7)(a)(ii)(c). Accordingly, we have included confidential information in this decision only to the extent
      necessary to resolve the appeal.

      Court of Appeals of Indiana | Memorandum Opinion 34A05-1512-CR-2327 | July 29, 2016                Page 4 of 6
       sense of the culpability of the defendant, the severity of the crime, the damage

       done to others, and a myriad of other considerations that come to light in a

       given case. Id.


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

       appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,

       1019 (Ind. 2012). The sentencing range for a Level 5 felony is one year to six

       years, with three years being the advisory term. I.C. § 35-50-2-6(b). Here, the

       trial court sentenced Malone to the maximum sentence of six years.


[10]   Our review of the nature of offense reveals that Malone pled guilty to dealing in

       a narcotic drug. As for Malone’s character, prior to his current offense, Malone

       had several incidents of involvement with the criminal justice system. In 2007,

       Malone was charged with driving with a suspended license and false informing.

       For those offenses, Malone received one year of probation. In 2008, Malone

       was charged with check deception and he received one year of probation. Of

       significance is that this is not Malone’s first drug offense. According to the PSI,

       in 2009, Malone was charged with three Counts of dealing in a schedule II

       controlled substance, two of those Counts were dismissed, and the trial court

       ordered him to attend the Drug Court Program, which he successfully

       completed. Malone characterizes his offense as an innocuous situation in

       which he, a relapsed drug addict, was doing his best to stay away from drugs,

       but he continued to associate himself with drug addicts. Malone claims that he

       could sustain a drug-free life if he received treatment for his drug addiction, and

       he would benefit from probation or in-home detention.

       Court of Appeals of Indiana | Memorandum Opinion 34A05-1512-CR-2327 | July 29, 2016   Page 5 of 6
[11]   Malone fails to recognize that defendants are not entitled to serve a sentence in

       either probation or a community corrections program. Rather, placement in

       either is a matter of grace and a conditional liberty that is a favor, not a right.

       Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999). It is clearly evident that the prior

       imposition of more lenient sentences and participation in a drug program for

       Malone were not effective means of dealing with his drug addiction and

       repeated criminal history. Accordingly, we find that Malone’s history of

       criminal activity is indicative of his disregard for the law and provides ample

       justification for the sentence imposed. Malone has failed to persuade this court

       that his six-year sentence is inappropriate.


                                               CONCLUSION

[12]   In light on the foregoing, we conclude that Malone’s sentence is not

       inappropriate in light of the nature of the offense and his character.


[13]   Affirmed.


[14]   Kirsch, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Opinion 34A05-1512-CR-2327 | July 29, 2016   Page 6 of 6
