MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
                                                                         Dec 21 2018, 8:55 am
regarded as precedent or cited before any
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
Mark A. Kiesler                                         Curtis T. Hill, Jr.
Kiesler Law Office                                      Attorney General of Indiana
New Albany, Indiana                                     Caroline G. Templeton
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Arvis Harrison Crawhorn, Jr.,                           December 21, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1668
        v.                                              Appeal from the Orange Circuit
                                                        Court
State of Indiana,                                       The Honorable Steven L. Owen,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        59C01-1512-F2-1195



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1668 | December 21, 2018                Page 1 of 8
[1]   Arvis Harrison Crawhorn, Jr., appeals his sentence for dealing in

      methamphetamine as a level 3 felony. He raises one issue which we revise and

      restate as whether his sentence is inappropriate in light of the nature of the

      offense and his character. We affirm.


                                      Facts and Procedural History

[2]   On December 28, 2015, police executed a search warrant at Crawhorn’s

      residence and located: Crawhorn; four children, including two of Crawhorn’s

      children, in the living room area; 8.9 grams of methamphetamine, digital scales,

      a clear glass pipe with burn residue, marijuana, U.S. currency, numerous

      firearms, and drug paraphernalia inside of the bedroom where Crawhorn was

      located; and multiple cut clear plastic baggies, burnt aluminum foil, and digital

      scales in the garage.


[3]   Orange County Sheriff’s Detective Paul Andry spoke with Crawhorn at the

      scene, and Crawhorn told him that he knew “a bunch of people . . . [a]cross the

      river . . . .” State’s Exhibit 2 at 5. Crawhorn stated that he knew addresses of

      dealers and gave a name and a nickname.


[4]   On December 28, 2015, the State charged Crawhorn with Count I, dealing in

      methamphetamine as a level 2 felony, and Count II, possession of

      methamphetamine as a level 4 felony. In April 2016, the court entered an

      Order on Motion for Bond Reduction reducing Crawhorn’s bond and ordering

      that if Crawhorn is released on bond he should be placed on pre-trial services

      through the Orange County Probation Department. The court’s order included


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1668 | December 21, 2018   Page 2 of 8
      the following conditions of release: (1) report immediately to Southern Hills

      Counseling Center, Inc. for a substance abuse evaluation and follow all

      treatment recommended by Southern Hills; (2) submit to random drug and

      alcohol testing; and (3) contact probation twice a month.


[5]   On April 9, 2018, Crawhorn and the State filed a plea agreement in which

      Crawhorn agreed to plead guilty to dealing in methamphetamine as a level 3

      felony and, with respect to sentencing, agreed to an “Open plea to the Court.”

      Appellant’s Appendix Volume II at 134. The State agreed to dismiss Count II

      as well as counts under cause number 59C01-1501-F5-65 (“Cause No. 65”)

      including possession of methamphetamine as a level 5 felony and possession of

      marijuana as a class B misdemeanor.


[6]   On May 30, 2018, the court held a sentencing hearing.1 At the beginning of the

      hearing, Crawhorn’s counsel requested a continuance because “there’s been

      some serious allegations against Mr. Crawhorn” and a CHINS case was

      pending in which Crawhorn had denied the allegations. Transcript Volume II

      at 5. The court stated that the CHINS allegations had no bearing on what the

      court would do and denied the request for a continuance.


[7]   The defense presented the testimony of Jeff Holland, a probation officer in

      Orange County, who testified that he had seen Crawhorn since July 2016 and




      1
        At the sentencing hearing, the court referenced the April 9, 2018 plea agreement and stated: “The Court at
      that date, ah, took and accepted your plea of guilty and entered Judgment of Conviction accordingly.”
      Transcript Volume II at 5. The record does not contain a transcript of the April 9, 2018 hearing.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1668 | December 21, 2018                 Page 3 of 8
      that Crawhorn was “on our Pretrial Services Supervision,” and had submitted

      to three random drug screens which were negative. Id. at 14. On cross-

      examination, Holland stated that he had no documentation to support

      Crawhorn’s completion of any counseling. Ashley McDaniel testified that she

      was previously a family case manager with the Department of Child Services,

      she had a case regarding Crawhorn’s three children, Crawhorn was compliant,

      the children were placed with Crawhorn, and that she left before the case was

      resolved. James Wesley Small testified that he owned Small Brothers Truck

      and Auto Repair, that Crawhorn was his employee beginning in October 2016,

      and that Crawhorn was a good employee.


[8]   Crawhorn testified that his children had been taken away by CPS previously

      and then placed in his home a few months after his release from jail, that he

      lived alone with his three children, he had been employed for eighteen months,

      he checked in with his probation officer, and that he submitted to drug tests.

      On cross-examination, Crawhorn indicated that one of his children had been

      removed from his home due to an allegation, and that he gave a statement

      saying that he could help perform some buys. He indicated that he was

      “receiving the drugs that [he was] selling from over in the Portland

      neighborhood in Louisville . . . .” Id. at 43. He testified that he went to

      Southern Hills for treatment pursuant to his bond order, he did not remember

      why he missed the first two classes, the second time he missed was for “pretty

      good reasons,” he missed the third class because he was injured when a tree fell

      on him while he was cutting timber, and that Southern Hills no longer wanted


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1668 | December 21, 2018   Page 4 of 8
       to treat him after he missed three classes. Id. at 44. He testified that he received

       approval to go to a different program and completed Followell’s Drug Factor

       Class.


[9]    After the presentation of Crawhorn’s evidence, the prosecutor asked the court

       to take judicial notice of the file in the present case as well as in Cause No. 65

       and of a transcribed copy of Crawhorn’s statement to police, and the court did

       so. The prosecutor requested a sentence of sixteen years at the Department of

       Correction. Crawhorn’s counsel requested the court to sentence him to the

       advisory sentence of nine years with four years suspended and five years served

       on home detention or in the work release program.


[10]   The court recognized that Crawhorn had lived a “pretty normal life” and had

       drug screens since his release from incarceration. Id. at 60. The court stated: “I

       would like to think that you are less likely to reoffend. However, I do want you

       to know that I see that as being, ah, a mitigating circumstance in your case and

       I gave that average weight, a moderate weight so it’s good, um, and that would

       put that in, that is, you know, you’re taking care of your family, you’ve got

       your family together.” Id. The court recognized that Crawhorn was working.

       It found that Crawhorn’s guilty plea was a mitigating circumstance but

       recognized that he received a significant benefit, and found Crawhorn’s

       criminal history as an aggravating circumstance. The court found the fact that

       Crawhorn committed the current offense when he was out on bond under

       Cause No. 65 as an aggravating circumstance to which it assigned great weight.

       It stated, in reading Crawhorn’s statement to police, that “[i]t sounds like you

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1668 | December 21, 2018   Page 5 of 8
       were doing this frequently.” Id. at 63. The court also found that Crawhorn had

       his children as well as two other children in the home along with numerous

       firearms as an aggravating circumstance and that the aggravating circumstances

       far outweighed the mitigating circumstances and sentenced Crawhorn to

       sixteen years in the Department of Correction.


                                                   Discussion

[11]   The issue is whether Crawhorn’s sentence is inappropriate in light of the nature

       of the offense and his character. Crawhorn argues that the facts are not

       especially heinous. He states that he was released on bond during the pendency

       of this matter from April 26, 2016, until he was sentenced on May 30, 2018,

       and that he demonstrated reasonable efforts and made significant

       improvements to lead a law-abiding life during that time period by regularly

       reporting to the probation department, passing random drug screens,

       maintaining employment, and being “able to get his children back into his

       custody and residing with him.” Appellant’s Brief at 13. He asserts that his

       criminal history consists of relatively minor non-violent substance offenses

       occurring more than six years before the current offense. The State argues that

       Crawhorn’s sentence is appropriate and asserts that Crawhorn participated in a

       broader network of dealers, had firearms and children in his house, sold

       methamphetamine while he was on bond for a charge of possession of

       methamphetamine, and his criminal history reflects poorly on his character.


[12]   Ind. 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
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1668 | December 21, 2018   Page 6 of 8
       sentence is inappropriate in light of the nature of the offense and the character

       of the offender.” Under this rule, 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).


[13]   Ind. Code § 35-50-2-5 provides in part that a person who commits a level 3

       felony shall be imprisoned for a fixed term of between three and sixteen years,

       with the advisory sentence being nine years.


[14]   Our review of the nature of the offense reveals that Crawhorn possessed 8.9

       grams of methamphetamine in the bedroom of his residence along with digital

       scales, a clear glass pipe with burn residue, marijuana, U.S. currency, numerous

       firearms, and drug paraphernalia. The garage contained multiple cut clear

       plastic baggies, burnt aluminum foil, and digital scales. Four children,

       including two of Crawhorn’s children, were in the living room at the time that

       the search warrant was executed.


[15]   Our review of the character of the offender reveals that Crawhorn pled guilty to

       the lesser included offense of dealing in methamphetamine as a level 3 felony

       more than two years and three months after he was initially charged and the

       State dismissed Count II, possession of methamphetamine as a level 4 felony,

       as well as counts under Cause No. 65, including possession of

       methamphetamine as a level 5 felony and possession of marijuana as a class B

       misdemeanor, as part of the plea agreement.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1668 | December 21, 2018   Page 7 of 8
[16]   The presentence investigation report reveals Crawhorn, who was born on

       November 3, 1976, pled guilty to possession of marijuana as a class A

       misdemeanor and operating a vehicle while intoxicated as a class D felony

       under separate causes in 2000, pled guilty to visiting a common nuisance as a

       class B misdemeanor and had charges for dealing in methamphetamine as a

       class A felony and possession of chemical reagents or precursors with intent to

       manufacture as a class D felony dismissed in 2002, and pled guilty to operating

       a vehicle with a Schedule I or II controlled substance or its metabolite in the

       body as a class C misdemeanor in 2010. Crawhorn’s probation was revoked in

       2000 and 2003 and he was released on bond under Cause No. 65 when he

       committed the present offense.


[17]   After due consideration, we conclude that Crawhorn has not sustained his

       burden of establishing that his sentence is inappropriate in light of the nature of

       the offense and his character.


                                                   Conclusion

[18]   For the foregoing reasons, we affirm Crawhorn’s sentence.


[19]   Affirmed.


       Bailey, J., and Bradford, concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1668 | December 21, 2018   Page 8 of 8
