MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
                                                                      Jun 07 2019, 9:21 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
James A. Shoaf                                           Curtis T. Hill, Jr.
Columbus, Indiana                                        Attorney General of Indiana
                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brian Stewart,                                           June 7, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2353
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable James D. Worton,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         03D01-1801-F6-379
                                                         03D01-1801-F6-105



Tavitas, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-2353 | June 7, 2019                   Page 1 of 8
                                                 Case Summary
[1]   Brian J. Stewart appeals his sentence, received pursuant to his guilty plea, for

      one count of possession of methamphetamine, a Level 6 felony, and two counts

      of theft, Level 6 felonies. We affirm.


                                                          Issue
[2]   Stewart raises one issue, which we restate as whether his sentence is

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


                                                          Facts 1
[3]   On January 7, 2018, a police officer responded to a report of a suspicious

      vehicle on grounds owned by the Indianapolis Museum of Art in Columbus,

      Indiana. On the scene, the officer located a Ford Explorer with its engine

      running and two occupants inside. The officer observed a male sitting in the

      driver’s seat and a female in the passenger’s seat. The officer recognized

      Stewart and Norma Holley (“Holley”) from previous encounters. Stewart

      awakened after the officer identified himself. The officer observed several items

      in the vehicle, including a large wooden jewelry box, pieces of jewelry, and

      several other miscellaneous items.




      1
        Stewart did not obtain the guilty plea hearing transcript for this appeal, and it appears that Stewart and the
      State cite to the probable cause affidavit for the statement of facts in their briefs. We, therefore, will do the
      same.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2353 | June 7, 2019                           Page 2 of 8
[4]   Stewart admitted to the officer that he did not have permission to be on the

      property. Stewart then accelerated the vehicle in an attempt to flee. The officer

      was able to open the vehicle’s door and told Stewart to place the vehicle in

      park, and Stewart complied. Stewart was then removed from the vehicle and

      placed in handcuffs. Another officer arrived at the scene and, as he opened the

      door to the vehicle to handcuff Holley, a handgun fell from between the

      passenger seat and door. Upon further investigation, it was determined that

      neither Holley nor Stewart had a permit to carry a handgun.


[5]   Officers obtained a warrant to search the vehicle. They discovered official

      documents with Stephen Riga’s name on them. Officers later learned that

      Riga’s residence was burglarized on January 6, 2018. Behind the driver’s seat,

      officers also found a black gym bag, which contained seven bags with ten

      syringes each. In addition, the gym bag contained a makeup bag, which

      contained more syringes, spoons with white residue, a scale with white residue,

      a clear bag of white powder, and two pills that the officer identified as

      hydrocodone.


[6]   On January 7, 2018, Stewart was charged with unlawful possession of a

      syringe, a Level 6 felony; possession of methamphetamine, a Level 6 felony;

      possession of a controlled substance, a Level 6 felony; carrying a handgun

      without a license, a Class A misdemeanor; criminal trespass, a Class A

      misdemeanor; and conversion, a Class A misdemeanor.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2353 | June 7, 2019   Page 3 of 8
[7]    During the investigations, officers learned that Stewart and Holley were storing

       items in a storage unit. Officers later obtained a search warrant for the storage

       unit. In the storage unit, they recovered property stolen from Manuel Gonzalez

       and Jerry and Beth Sullivan. The officers recovered gardening tools, vehicle

       titles, social security cards, and passports.


[8]    During a related subsequent investigation, an officer obtained a search warrant

       for another property in Columbus. The owner of that property had given

       Stewart and Holley permission to keep items in his detached garage. There,

       officers recovered property reported stolen by Lisa Thayer, Christopher and

       Nora Murr, and Grant Gaddis. The officers recovered flat screen televisions, a

       luggage bag, clothing, and a stolen automobile.


[9]    On January 24, 2018, Stewart was charged under a separate cause number with

       one count of receiving stolen automobile parts, a Level 6 felony; three counts of

       theft, Level 6 felonies; and two counts of conversion, Class A misdemeanors.


[10]   On August 13, 2018, Stewart pleaded guilty to possession of

       methamphetamine, a Level 6 felony, and to two counts of theft, Level 6

       felonies. The remaining counts were dismissed.


[11]   At sentencing, Stewart testified that he was in a rehabilitation facility in Florida

       from April to July 2017 for drug addiction. After Stewart returned to Indiana

       from Florida, he was fired from his job due to his lack of attendance. Stewart

       “didn’t even look” for a job after he was terminated. Tr. Vol II p. 10. To

       support his daily drug use, Stewart “st[ole] things and s[old] them.” Id.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2353 | June 7, 2019   Page 4 of 8
[12]   The trial court found the following aggravators: (1) Stewart’s criminal history;

       (2) Stewart’s probation revocation; and (3) that Stewart had the opportunity for

       treatment in the past, outside of a penal facility, and had not been successful.

       The trial court did not find any mitigating factors. The trial court sentenced

       Stewart to two years for possession of methamphetamine and two years each

       on both counts of theft, all to be served consecutively for an aggregate sentence

       of six years. The trial court recommended that Stewart be placed in Purposeful

       Incarceration 2 and in a therapeutic community. Stewart now appeals.


                                                      Analysis
[13]   Stewart maintains that his sentence is inappropriate and invites us to revise it

       pursuant to Indiana Appellate Rule 7(B), which 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 defendant bears the burden to

       persuade this court that his or her sentence is inappropriate. Wilson v. State, 966

       N.E.2d 1259, 1266 (Ind. Ct. App. 2012) (citing Childress v. State, 848 N.E.2d

       1073, 1080 (Ind. 2006)), trans. denied.




       2
         Although Purposeful Incarceration is not defined in the record, in its Order the trial court stated that it
       “recommends to the Indiana Department of Corrections that [Stewart] be placed in Purposeful Incarceration
       and placed in a therapeutic community. Upon successful completion of the clinically appropriate substance
       treatment program as determined by [the Indiana Department of Corrections], the court will consider a
       modification to this sentence.” Appellant’s App. Vol. II p. 131.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2353 | June 7, 2019                      Page 5 of 8
[14]   In Indiana, trial courts can tailor an appropriate sentence to the circumstances

       presented; the trial court’s judgment receives “considerable deference.” Sanders

       v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017) (quoting Cardwell v. State, 895

       N.E.2d 1219, 1222 (Ind. 2008)), trans. denied. In conducting our review, we do

       not look to see whether the defendant’s sentence is appropriate or “if another

       sentence might be more appropriate; rather, the question is whether the sentence

       imposed is inappropriate.” Sanders, 71 N.E.3d at 844 (citing King v. State, 894

       N.E.2d 265, 268 (Ind. Ct. App. 2008)).


[15]   When reviewing a sentence, we look to the statutory ranges established for the

       classification of the offenses. The sentence for a Level 6 felony ranges from six

       months to two and a half years, with an advisory sentence of one year. Ind.

       Code § 35-50-2-7. Here, the trial court imposed three consecutive two-year

       sentences for possession of methamphetamine and two counts of theft, all Level

       6 felonies.


[16]   “[T]he advisory sentence is the starting point the Legislature has selected as an

       appropriate sentence.” Green v. State, 65 N.E.3d 620, 637-38 (Ind. Ct. App.

       2016), trans. denied. A deviation from the advisory sentence, when determining

       the appropriateness of a sentence, requires us to examine whether there is

       anything more or less egregious about the offense committed by Stewart that

       “makes it different from the ‘typical’ offense accounted for by the legislature

       when it set the advisory sentence.” See Holloway v. State, 950 N.E.2d 803, 807

       (Ind. Ct. App. 2011) (quoting Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App.

       2008), trans. denied).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2353 | June 7, 2019   Page 6 of 8
[17]   Pursuant to Indiana Appellate Rule 7(B), we first review the nature of Stewart’s

       offenses. Stewart contends that “there does not appear to be anything

       particularly aggravating about [his case] . . . that would set it apart as . . . more

       heinous or aggravated than any other possession [conviction]” for

       methamphetamine or theft. Appellant’s Br. p. 12. Stewart admitted that he

       was unemployed and committed the thefts to fuel his drug addiction. Stewart

       was arrested after he was found asleep in the driver’s seat of a running vehicle

       and in possession of a handgun without a license. After searching the vehicle,

       officers found numerous syringes, spoons with white residue, a scale with white

       residue, and a clear bag containing a white powder. Officers also found stolen

       property that belonged to several people from four separate burglaries in

       Stewart’s storage unit and a detached garage.


[18]   Next, we consider Stewart’s character. “When considering the character of the

       offender, one relevant fact is the defendant’s criminal history.” Garcia v. State,

       47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied. Stewart’s refusal to

       conform his conduct reflects poorly on his character. Stewart began consuming

       alcohol as a teenager and “picked up” “harder drugs” over the years. Tr. Vol.

       II p. 8. His criminal history includes convictions for illegal consumption of an

       alcoholic beverage, resisting law enforcement, and operating a vehicle with an

       alcohol concentration equivalent of .08% or greater. The instant offenses

       resulted from his use of methamphetamine. Additionally, according to the pre-

       sentence investigation report, Stewart’s probation has been revoked in the past.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2353 | June 7, 2019   Page 7 of 8
[19]   Stewart’s criminal history shows that Stewart stole from multiple people to fuel

       his drug addiction. Despite this history, the trial court only sentenced Stewart

       to an aggregate sentence of six years and recommended that Stewart be placed

       in Purposeful Incarceration. Thus, the trial court gave Stewart another

       opportunity to receive treatment. Stewart has not convinced us that his

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


                                                 Conclusion
[20]   Stewart has failed to meet his burden of demonstrating that his sentence is

       inappropriate in light of the nature of his offenses and his character. We affirm.


[21]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2353 | June 7, 2019   Page 8 of 8
