MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Dec 31 2019, 9:38 am
regarded as precedent or cited before any
                                                                              CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jared Michel Thomas                                     Curtis T. Hill, Jr.
JMT Law, LLC d/b/a Thomas Law                           Attorney General of Indiana
Evansville, Indiana
                                                        Matthew B. MacKenzie
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brandie Rose Malicoate,                                 December 31, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1938
        v.                                              Appeal from the Vanderburgh
                                                        Superior Court
State of Indiana,                                       The Honorable Robert J. Pigman,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        82D03-1811-F2-7370



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1938 | December 31, 2019                 Page 1 of 6
                                           Case Summary
[1]   Brandie Rose Malicoate (“Malicoate”) challenges her fourteen-year aggregate

      sentence imposed following her pleas of guilty to Dealing in

      Methamphetamine, as a Level 2 felony,1 and Carrying a Handgun Without a

      License, as a Class A misdemeanor.2 She presents the issue of whether her

      sentence is inappropriate. We affirm.



                                Facts and Procedural History
[2]   On November 1, 2019, Malicoate was detained in a traffic stop in Evansville,

      Indiana and found to be in possession of an unlicensed handgun, 26.5 grams of

      methamphetamine (packaged in four individual baggies), a digital scale,

      MDMA pills, and $1,270.00. After her arrest and booking into jail, Malicoate

      asked to speak with police officers. She advised the officers that she had been

      traveling to New Albany, Indiana several times per week to bring back

      methamphetamine for distribution in Evansville. According to Malicoate’s

      estimate, she had sold approximately forty-eight pounds of methamphetamine

      in Evansville during the preceding four months. She offered to cooperate with

      law enforcement drug interdiction efforts.




      1
          Ind. Code § 35-48-4-1.1(a)(2).
      2
          I.C. § 35-47-2-1.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1938 | December 31, 2019   Page 2 of 6
[3]   Malicoate was released from jail but instead of cooperating with law

      enforcement, she absconded. Malicoate was re-arrested and held without bond.

      On April 3, 2019, she pled guilty to charges of Dealing in Methamphetamine

      and Carrying a Handgun Without a License. On June 17, 2019, she received a

      sentence of fourteen years for the dealing offense and a concurrent one-year

      sentence for the handgun offense. On July 31, 2019, the trial court granted

      Malicoate’s motion to file a Belated Notice of Appeal pursuant to Indiana Post-

      Conviction Rule 2.



                                Discussion and Decision
[4]   Pursuant to Indiana Code Section 35-50-2-4.5, a person who commits a Level 2

      felony shall be imprisoned for a fixed term of between ten years and thirty

      years, with an advisory sentence of seventeen and one-half years. Pursuant to

      Indiana Code Section 35-50-3-2, a person who commits a Class A misdemeanor

      shall be imprisoned for not more than one year. Malicoate contends that her

      sentence is inappropriate and asks that we revise it to the minimum, ten-year

      aggregate sentence, because she pled guilty and has no felony criminal history.


[5]   Under Indiana Appellate Rule 7(B), this “Court may revise a sentence

      authorized by statute if, after due consideration of the trial court’s decision, the

      Court finds that the sentence is inappropriate in light of the nature of the offense

      and the character of the offender.” In performing our review, we assess “the

      culpability of the defendant, the severity of the crime, the damage done to

      others, and myriad other factors that come to light in a given case.” Cardwell v.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1938 | December 31, 2019   Page 3 of 6
      State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of such review is

      an “attempt to leaven the outliers.” Id. at 1225. Appellate courts thus “reserve

      our 7(B) authority for exceptional circumstances.” Taylor v. State, 86 N.E.3d

      157, 165 (Ind. 2017).


[6]   The “considerable deference” given to the trial court’s sentencing judgment

      “should prevail 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) (citing Cardwell, 895 N.E.2d at 1222).


[7]   The nature of the offense involves the details and circumstances of the crime

      and the defendant’s participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App.

      2017). Dealing in Methamphetamine is a Level 2 felony if the amount of the

      drug is at least ten grams. I.C. § 35-48-4-1.1(a)(2). Malicoate possessed with

      intent to deliver more than twice that amount of methamphetamine,

      specifically, 26.5 grams.


[8]   The character of the offender is found in what courts learn of the offender’s life

      and conduct. Perry, 78 N.E.3d at 13. Malicoate’s decision to plead guilty

      indicates some acceptance of responsibility for her actions; however, the

      decision to plead guilty was likely pragmatic, as Malicoate was found in

      possession of individually-packaged methamphetamine, a large quantity of

      cash, an unlicensed handgun, MDMA pills, and digital scales with


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1938 | December 31, 2019   Page 4 of 6
       methamphetamine residue. She admitted to her recent sales of an estimated

       forty-eight pounds of methamphetamine. Finally, her decision to flee instead of

       fulfilling her promise to cooperate with police does not speak well of her

       character.


[9]    To the extent that Malicoate argues “the trial court gave no weight to her lack

       of criminal history, no weight to the hardship upon her dependents, no weight

       to her physical health issues, and absolutely no weight for her guilty plea,”

       Appellant’s Brief at 15, we cannot provide the requested relief. The weight

       given to the trial court’s reasons for imposing a sentence is not subject to

       appellate review. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified

       on reh’g, 875 N.E.2d 218. Malicoate did not have a felony criminal history.

       However, she had not remained a law-abiding citizen up until the current

       offense.


[10]   Having reviewed the matter, we conclude that the trial court did not impose an

       inappropriate sentence under Appellate Rule 7(B), and the sentence does not

       warrant appellate revision. Accordingly, we decline to disturb the sentence

       imposed by the trial court.



                                               Conclusion
[11]   The sentence imposed upon Malicoate is not inappropriate.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1938 | December 31, 2019   Page 5 of 6
[12]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1938 | December 31, 2019   Page 6 of 6
