MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                      May 31 2017, 10:36 am
court except for the purpose of establishing
                                                                    CLERK
the defense of res judicata, collateral                         Indiana Supreme Court
                                                                   Court of Appeals
estoppel, or the law of the case.                                    and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Yvette M. LaPlante                                      Curtis T. Hill, Jr.
Evansville, Indiana                                     Attorney General of Indiana
                                                        Matthew B. Mackenzie
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Stephen Clayton Rainey,                                 May 31, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        82A01-1612-CR-2857
        v.                                              Appeal from the Vanderburgh
                                                        Superior Court
State of Indiana,                                       The Honorable Robert J. Pigman,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        82D02-1407-F2-1005



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1612-CR-2857 | May 31, 2017     Page 1 of 6
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Stephen Clayton Rainey (Rainey), appeals his sentence

      for possession of methamphetamine, a Level 4 felony, Ind. Code § 35-48-4-

      6.1(a).


[2]   We affirm.


                                                   ISSUE
[3]   Rainey raises one issue for our review, which we restate as: Whether Rainey’s

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


                      FACTS AND PROCEDURAL HISTORY
[4]   On July 18, 2014, Officer Lenny Reed of the City of Evansville Police

      Department (Officer Reed) observed a red motorcycle, driven by Rainey, failing

      to stop at a stop sign or use a turn signal. Officer Reed followed Rainey and

      noticed him reaching into his waistband for a cigarette package and throwing it

      away. The cigarette package was later determined to contain 9.97 grams of

      methamphetamine. After he was pulled over for a traffic stop, Rainey

      conceded that the cigarette package contained crystal meth which he had

      purchased earlier that day. He admitted to being an addict who sold

      methamphetamine to his friends. Rainey was also found to be in possession of

      $875 in cash when he was arrested. At the time of his arrest, Rainey was out on

      bond for possession of methamphetamine, a Level 5 felony.




      Court of Appeals of Indiana | Memorandum Decision 82A01-1612-CR-2857 | May 31, 2017   Page 2 of 6
[5]   On July 22, 2014, the State filed an Information, charging Rainey with Count I,

      dealing methamphetamine, a Level 2 felony; Count II, resisting law

      enforcement, a Level 6 felony; and a habitual offender enhancement. On

      October 24, 2016, the State amended the Information on Count I to reflect

      Rainey’s prior dealing offense though the offense remained a Level 2 felony.

      The State moved to dismiss Count II and the habitual offender enhancement on

      October 27, 2016.


[6]   Following a jury trial on October 31, 2016, Rainey was convicted of the lesser

      included offense of possession of methamphetamine as a Level 5 felony. He

      admitted to the enhancing circumstance of a prior conviction and the trial court

      entered his conviction as a Level 4 felony. On November 18, 2016, the trial

      court conducted a sentencing hearing. Imposing a ten-year executed sentence,

      the trial court noted as aggravating factors Rainey’s extensive criminal history

      and that he was on bond at the time of the instant offense. The trial court found

      a mitigating circumstance in Rainey’s mental health problems.


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


                              DISCUSSION AND DECISION
[8]   Rainey contends that his sentence is inappropriate in light of the nature of the

      offense and his character. Although a trial court may have acted within its

      lawful discretion in imposing a sentence, Indiana Appellate Rule 7(B) provides

      that an appellate 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

      Court of Appeals of Indiana | Memorandum Decision 82A01-1612-CR-2857 | May 31, 2017   Page 3 of 6
       inappropriate in light of the nature of the offense and the character of the

       offender.” The defendant has the burden of persuading us that his sentence is

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

       this court regards a sentence as appropriate at the end of the day turns on its

       sense of the culpability of the defendant, the severity of the crime, the damage

       done to others, and a myriad of other facts that come to light in a given case.

       Suprenant v. State, 925 N.E.2d 1280, 1284 (Ind. Ct. App. 2010), trans. denied.


[9]    We recognize that the advisory sentence “is the starting point the Legislature

       has selected as an appropriate sentence of the crime committed.” Weiss v. State,

       848 N.E.2d 1070, 1072 (Ind. 2006). Pursuant to the statute, a person convicted

       of a Level 4 felony, shall be imprisoned for a fixed term of between two and

       twelve years, with the advisory sentence being six years. I.C. § 35-50-2-5.

       Here, Rainey received an aggravated sentence of ten years.


[10]   The nature of the Rainey’s offense does not disclose anything egregious or out

       of the ordinary: a traffic stop revealed his possession of methamphetamine.

       Nevertheless, Rainey’s character alone justifies the sentence imposed by the

       trial court. A review of his criminal history reveals that Rainey has been in

       continual contact with the criminal justice system for virtually his entire adult

       life. Over the years, Rainey has amassed ten misdemeanor convictions for

       driving while suspended (five times), possession of paraphernalia, resisting law

       enforcement, possession of marijuana (twice), and carrying a handgun without

       a license, and seven felony convictions for possession of methamphetamine

       (four times), dealing methamphetamine, possession of marijuana, and receiving

       Court of Appeals of Indiana | Memorandum Decision 82A01-1612-CR-2857 | May 31, 2017   Page 4 of 6
       stolen property. Rainey has violated the terms of electronic home detention,

       community corrections, and probation. At the time of sentencing, Rainey had

       three separate cases pending for possession of methamphetamine, as a Class D

       felony, possession of methamphetamine, as a Level 5 felony, and dealing

       methamphetamine, as a Level 3 felony.


[11]   In support of his argument to reduce the sentence to the advisory term, Rainey

       points to his mental health history and argues that “he is an addict with mental

       health problems, not that he poses a danger to other individuals.” (Appellant’s

       Br. p. 9). In so far Rainey now appears to argue that the trial court should have

       awarded more weight to this recognized mitigating factor, we note that “a trial

       court can not now be said to have abused its discretion in failing to properly

       weigh such factors.” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007),

       clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). Although Rainey claims his

       conviction for possession of methamphetamine is a crime without a victim, this

       argument is strongly contradicted by Rainey’s own statements. After being

       pulled over by Officer Reed, he admitted to selling methamphetamine to his

       friends. Moreover, his criminal history discloses convictions for possession of

       methamphetamine and dealing methamphetamine.


[12]   Accordingly, we conclude that Rainey has failed to carry his burden to establish

       that his sentence is inappropriate in light of his character.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1612-CR-2857 | May 31, 2017   Page 5 of 6
                                             CONCLUSION
[13]   Based on the foregoing, we conclude that the trial court not inappropriately

       sentenced Rainey to a sentence of ten years.


[14]   Affirmed.


[15]   Najam, J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 82A01-1612-CR-2857 | May 31, 2017   Page 6 of 6
