MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Mar 05 2020, 9:54 am

court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr.                                   Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Adam R. McCarthy,                                        March 5, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2659
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D05-1906-F6-709



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2659 | March 5, 2020                  Page 1 of 12
                                             Case Summary
[1]   Adam R. McCarthy (“McCarthy”) appeals his sentence, following a plea

      agreement, for possession of methamphetamine, as a Level 6 felony;1

      possession of marijuana, as a Class B misdemeanor;2 and false informing, as a

      Class B misdemeanor.3 We affirm.



                                                       Issues
[2]   McCarthy raises the following two4 issues on appeal:


                 1.       Whether the trial court abused its discretion in sentencing.


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


                                  Facts and Procedural History
[3]   Under cause number 02D05-1906-F6-709 (“Cause F6-709”), the State charged

      McCarthy on June 14, 2019, with possession of methamphetamine, as a Level 6

      felony; possession of marijuana, as a Class B misdemeanor; and false

      informing, as a Class B misdemeanor. On July 8, McCarthy pled guilty and




      1
          Ind. Code § 35-48-4-6.1(a).
      2
          I.C. § 35-48-4-11(a).
      3
          I.C. § 35-44.1-2-3(d)(1).
      4
        Although McCarthy does not list the sentencing challenge in his statement of the issues, he raises that
      challenge in its own section of his brief. Appellant’s Br. at 10-11.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2659 | March 5, 2020                     Page 2 of 12
      entered the Drug Court Diversion Program. Under that program, McCarty was

      placed in the Park Center Addictions Residential Program. McCarthy

      successfully completed that program on August 13 and was then placed at

      Freedom House. McCarthy was terminated from Freedom House on August

      25.


[4]   On August 28, McCarthy’s case manager informed the trial court that

      McCarthy was in violation of the drug court rules, and on September 16 the

      State filed a petition to terminate McCarthy from the Drug Court Program.

      The State alleged that McCarthy violated the conditions of his participation in

      the drug court program by failing to complete the recovery program at Freedom

      House, failing to obey all laws (i.e., being arrested for drug possession), and

      failing to notify his case manager that he was arrested and had contact with law

      enforcement officials. The court held a compliance hearing on September 16

      and issued an order on September 18 in which it revoked McCarthy’s

      assignment to the drug court and ordered a presentence investigation report.


[5]   The presentence investigation report was filed with the court on October 15,

      and the trial court held a sentencing hearing on October 22, 2019, at which

      McCarthy admitted to the accuracy of the contents of the presentence

      investigation report. That report stated that McCarthy, twenty-five years old,

      had earned a GED while incarcerated in 2014, was in good physical health, and

      reported having been previously diagnosed with depression and anxiety. The

      presentence investigation report also noted that McCarthy’s “criminal

      involvement” included felony, misdemeanor, and juvenile delinquent

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2659 | March 5, 2020   Page 3 of 12
      adjudications, juvenile detention, jail or prison time, jail or prison discipline,

      probation, parole, violation or revocation of probation or parole, and

      community corrections. App. at 26. McCarthy’s juvenile delinquent history

      was for operating a vehicle while intoxicated, failing to stop after an accident,

      and violation of probation.


[6]   McCarthy’s adult criminal history began with 2013 convictions for burglary and

      residential entry. He was sentenced to six years, with two years suspended to

      probation, for burglary, and was sentenced to two years for residential entry. In

      that cause, his placement with work release was revoked, his probation was

      modified to home detention, and his probation was then revoked. In 2013, he

      also was sentenced to thirty days for misdemeanor conversion. In 2014,

      McCarthy was sentenced to ten days for possession of a synthetic drug. In

      2015, he was sentenced and placed on probation for operating while

      intoxicated. In 2018, he was sentenced to 180 days with 160 days suspended

      for public intoxication. Again, in 2018, he was sentenced to suspended jail

      time—which was later revoked—for conversion, resisting law enforcement, and

      false informing. In February 2019, McCarthy was sentenced to ten days for

      possession of marijuana. In March 2019, under cause number 02D05-1903-F6-

      275 (“Cause F6-275”), he was charged with one count of possession of

      methamphetamine.5 In June 2019—the instant case—McCarthy pled guilty to




      5
        The appeal of his conviction of that March 2019 charge is the subject of a separate pending appeal under a
      separate appellate cause number, i.e., 19A-CR-2655.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2659 | March 5, 2020                    Page 4 of 12
      possession of methamphetamine, possession of marijuana, and false informing.

      While this case was pending, he was charged, convicted, and sentenced in

      cause number 02D04-1909-CM-4108 to ninety days in jail for possession of a

      controlled substance.


[7]   At the October 22, 2019, sentencing hearing in the instant case, the court

      reviewed McCarthy’s criminal history and considered it to be an aggravating

      circumstance. Specifically, the court stated:


              The Court does find as aggravating circumstances your criminal
              record with failed efforts at rehabilitation covering a period of
              time from 2012 to 2019, where you have accumulated two
              adjudications as a juvenile. Through the juvenile court system,
              you were given the benefits of operational supervision, individual
              counseling, and substance use out-patient treatment. You
              violated your probation. The other, then, as an adult, you have
              nine misdemeanor convictions and two prior felony convictions,
              with short jail sentences, longer jail sentences, active adult
              probation, time in the Work Release facility, time on the Home
              Detention Program. You’ve been in the Department of
              Correction, you’ve been on parole, and you’ve been through the
              Drug Court Program.


      Tr. at 6. The court also found McCarthy’s guilty plea, acceptance of

      responsibility, and remorse to be mitigating circumstances.


[8]   The trial court sentenced McCarthy to concurrent sentences of two years for

      possession of methamphetamine, 180 days for possession of marijuana, and 180

      days for false informing. The court ordered McCarthy’s sentence in this cause,




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2659 | March 5, 2020   Page 5 of 12
      F6-709, to be served consecutively to the sentence imposed in F6-275. This

      appeal of the convictions in F6-709 ensued.



                                 Discussion and Decision
                           Abuse of Discretion in Sentencing
[9]   McCarthy maintains that the trial court erred in sentencing him. Sentencing

      decisions lie within the sound discretion of the trial court. Cardwell v. State, 895

      N.E.2d 1219, 1222 (Ind. 2008). 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, probable, and actual deductions to be drawn

      therefrom.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation

      omitted), trans. denied. A trial court abuses its discretion in sentencing if it does

      any of the following:


              (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. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind. 2007), clarified on

      reh’g, 875 N.E.2d 218 (Ind. 2007)). So long as a sentence is within the statutory

      range, the trial court may impose it without regard to the existence of

      aggravating or mitigating factors. Anglemyer, 868 N.E.2d at 489. However, if


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2659 | March 5, 2020   Page 6 of 12
       the trial court does find the existence of aggravating or mitigating factors, it

       must give a statement of its reasons for selecting the sentence it imposes. Id. at

       490. But the relative weight or value assignable to reasons properly found, or

       those which should have been found, is not subject to review for abuse of

       discretion, Gross, 22 N.E.3d at 869, and a trial court is under no obligation to

       explain why a proposed mitigator does not exist or why the court found it to be

       insignificant, Sandleben v. State, 22 N.E.3d 782, 796 (Ind. Ct. App. 2014), trans.

       denied.


[10]   The sentencing range for a Level 6 felony is a fixed term of imprisonment

       between six months and two and one-half years, with an advisory sentence of

       one year. I.C. § 35-50-2-7(b). The sentencing range for a Class B misdemeanor

       is a fixed term of not more than 180 days. I.C. § 35-50-3-3. Thus, the

       challenged aggregate sentence imposed was not the maximum possible

       aggregate sentence, as the sentence for the Level 6 felony was one-half year

       below the maximum sentence and the 180 day sentences for each of the Class B

       misdemeanors were ordered to be served concurrent to the two-year felony

       sentence.


[11]   Nevertheless, McCarthy contends the trial court abused its discretion by failing

       to find his remorse, guilty plea, acceptance of responsibility, limited formal

       education, and history of mental health and substance abuse as mitigating

       circumstances. However, the trial court was “not obligated to accept as

       mitigating each of the circumstances proffered by the defendant.” Green v. State,

       65 N.E.3d 620, 636 (Ind. Ct. App. 2016), trans. denied. And the burden is on the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2659 | March 5, 2020   Page 7 of 12
       defendant to establish that the trial court overlooked mitigating evidence that is

       both significant and clearly supported by the record. Id.


[12]   McCarthy has failed to carry that burden. First, contrary to McCarthy’s

       contention, the trial court did find his remorse, guilty plea, and acceptance of

       responsibility to be mitigating factors. Second, the trial court did not err in

       failing to find his high school education, alleged mental health issues, and

       substance abuse issues to be significant mitigators or failing to explain why they

       did not exist as mitigators at all. Sandleben, 22 N.E.3d at 796. The only

       evidence McCarthy cites in support of his alleged mental health issues is his

       own self-serving statement that he has been diagnosed with depression and

       anxiety. He provided no documentation or other evidence to establish that

       diagnosis. And his history of substance abuse may actually be seen as evidence

       of a propensity to re-offend and, therefore, an aggravating circumstance, rather

       than a mitigator. See Burgess v. State, 854 N.E.2d 35, 40 (Ind. Ct. App. 2006).

       Moreover, as the State points out, in the past the courts have tried to address

       McCarthy’s drug abuse issues through sentences less stringent than

       incarceration, but those solutions have failed to prevent McCarthy’s recidivism.


[13]   The trial court in this case found that the mitigators of McCarthy’s remorse and

       acceptance of responsibility were outweighed by the aggravating circumstances

       of his lengthy criminal history and repeated failure to benefit from lesser

       sentences. At bottom, McCarthy’s appeal of his sentence is simply a request

       that we reweigh the aggravating and mitigating circumstances, which we will



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2659 | March 5, 2020   Page 8 of 12
       not do. Gross, 22 N.E.3d at 869. The trial court did not abuse its discretion in

       sentencing.


                                        Appellate Rule 7(B)
[14]   McCarthy contends that his sentence is inappropriate in light of the nature of

       the offense and his character. Article 7, Sections 4 and 6 of the Indiana

       Constitution “authorize[] independent appellate review and revision of a

       sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind.

       Ct. App. 2007) (alteration in original). This appellate authority is implemented

       through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule

       7(B) requires the appellant to demonstrate that his sentence is inappropriate in

       light of the nature of his offenses and his character. See Ind. Appellate Rule

       7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess

       the trial court’s recognition or non-recognition of aggravators and mitigators as

       an initial guide to determining whether the sentence imposed was

       inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006).

       However, “a defendant must persuade the appellate court that his or her

       sentence has met th[e] inappropriateness standard of review.” Roush, 875

       N.E.2d at 812 (alteration original).


[15]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell, 895 N.E.2d at 1224. The principal

       role of appellate review is to attempt to “leaven the outliers.” Id. at 1225.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2659 | March 5, 2020   Page 9 of 12
       Whether we regard a sentence as inappropriate at the end of the day turns on

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

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

       case.” Id. at 1224. The question is not whether another sentence is more

       appropriate, but rather whether the sentence imposed is inappropriate. King v.

       State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Deference to the trial court

       “prevail[s] 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]   McCarthy contends that the nature of his drug offenses does not support his

       aggregate two-year sentence. When considering the nature of the offense, we

       look at the defendant’s actions in comparison to the elements of the offense.

       Cannon v. State, 99 N.E.3d 274, 280 (Ind. Ct. App. 2018). Here, there is no

       compelling evidence showing any particular restraint in commission of the

       crime or otherwise casting the offense in a better light. McCarthy was initially

       placed in a Drug Court Diversion Program where he was given the opportunity

       to receive drug treatment in residential programs rather than jail time, yet he

       chose to once again possess drugs. See, e.g., Phipps v. State, 90 N.E.3d 1190,

       1198-99 (Ind. 2018) (holding the sentence was not inappropriate in light of

       nature of offense where the defendant showed a repeated “inability to conform

       her behavior to court orders”). We see nothing in the nature of this offense that


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2659 | March 5, 2020   Page 10 of 12
       suggests the sentence, which is within the statutory boundaries, is too harsh for

       the crime committed.


[17]   McCarthy also maintains that the sentence is inappropriate in light of his

       character. When considering the character of the offender, one relevant factor

       is the defendant’s criminal history. E.g., Pelissier v. State, 122 N.E.3d 983, 990

       (Ind. Ct. App. 2019), trans denied. “The significance of a criminal history varies

       based on the gravity, nature, and number of prior offenses in relation to the

       current offense.” McElfresh v. State, 51 N.E.3d 103, 112 (Ind. 2016) (quotation

       and citation omitted). Here, McCarthy has an extensive criminal history—both

       juvenile and adult—including alcohol and drug-related offenses. And, as the

       trial court noted, the judicial and penal systems repeatedly have given

       McCarthy opportunities at rehabilitation, including substance abuse counseling

       and treatment, short jail sentences, longer jail sentences, probation, work

       release, home detention, parole, and the drug court diversion program.

       McCarthy has reoffended after every such opportunity. Moreover, even as the

       instant case was pending, McCarthy reoffended while out on bond and was

       sentenced for possession of a controlled substance. We see no evidence that

       McCarthy’s character makes his sentence inappropriate.


[18]   McCarthy has not pointed to evidence compelling enough to overcome the

       deference we owe to the trial court regarding its sentence. Stephenson, 29

       N.E.3d at 122.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2659 | March 5, 2020   Page 11 of 12
[19]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2659 | March 5, 2020   Page 12 of 12
