MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any
                                                                    Jul 31 2017, 8:19 am
court except for the purpose of establishing
the defense of res judicata, collateral                                  CLERK
                                                                     Indiana Supreme Court
estoppel, or the law of the case.                                       Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Alvin D. Allen,                                          July 31, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A04-1702-CR-406
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John T. Roach,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause Nos.
                                                         84D01-1512-F2-3063
                                                         84D01-1601-F4-218



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A04-1702-CR-406 | July 31, 2017          Page 1 of 5
[1]   Alvin Allen appeals the sentence imposed by the trial court after Allen pleaded

      guilty to Level 2 felony dealing in methamphetamine, Level 4 felony dealing in

      methamphetamine, and Level 6 felony theft of a firearm.1 Allen contends that

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

      character. Finding that the sentence is not inappropriate, we affirm.


[2]   On December 2, 2015, a confidential informant working with law enforcement

      in Vigo County conducted a controlled buy of methamphetamine from Allen at

      his home. On December 10, 2015, police executed a search warrant at Allen’s

      home, during which they found methamphetamine, marijuana, alprazolam, a

      glass smoking pipe, and several firearms. Allen’s toddler son was home at the

      time.


[3]   On December 14, 2015, the State charged Allen under cause number 84D01-

      1512-F2-3063 (F2-3063)2 with the following: Level 2 felony dealing in

      methamphetamine, Level 3 felony possession of methamphetamine, Level 4

      felony dealing in a controlled substance, Level 5 felony neglect of a dependent,

      two counts of Level 6 felony maintaining a common nuisance, two counts of

      Level 6 felony theft of a firearm, Level 6 felony dealing in marijuana, Class B

      misdemeanor possession of marijuana, and Class A misdemeanor possession of




      1
        In Allen’s plea agreement, he agreed to waive the right to appeal the sentence imposed in this matter. At
      the sentencing hearing, however, the trial court advised Allen that he had a right to appeal his sentence
      because there was no agreement as to the sentence. Tr. p. 13. Neither Allen’s counsel nor the State objected
      to the trial court’s statement. The State is not challenging Allen’s right to appeal his sentence.
      2
          These offenses stem from the December 10, 2015, search of Allen’s residence.


      Court of Appeals of Indiana | Memorandum Decision 84A04-1702-CR-406 | July 31, 2017               Page 2 of 5
      paraphernalia. The State filed a notice of intent to seek two firearm

      enhancements for the charge of Level 4 felony dealing in a controlled

      substance.


[4]   On January 27, 2016, the State charged Allen under cause number 84D01-1601-

      F4-218 (F4-218)3 with the following: Level 4 felony dealing in

      methamphetamine, Level 6 felony possession of methamphetamine, and Level

      6 felony maintaining a common nuisance.


[5]   On January 25, 2017, Allen pleaded guilty to Level 2 felony dealing in

      methamphetamine, Level 3 felony possession of methamphetamine, and Level

      6 felony theft of a firearm under cause F2-3063, and to Level 4 felony dealing in

      methamphetamine under cause F4-218. Under the plea agreement, the State

      agreed to dismiss all remaining charges. The plea agreement provided that all

      sentences would run concurrently, and it capped the aggregate sentence at

      twenty years. At the January 25, 2017, sentencing hearing, the trial court

      merged Allen’s Level 3 felony possession of methamphetamine conviction into

      the Level 2 felony dealing in methamphetamine to prevent double jeopardy

      concerns. The trial court imposed a twenty-year sentence for his Level 2

      conviction, an eight-year sentence for his Level 4 conviction, and a two-year

      sentence for his Level 6 conviction, all to run concurrently, for an aggregate

      sentence of twenty years.




      3
          These offenses stem from the December 2, 2015, controlled buy.


      Court of Appeals of Indiana | Memorandum Decision 84A04-1702-CR-406 | July 31, 2017   Page 3 of 5
[6]   Allen’s sole argument on appeal is that the sentence is inappropriate in light of

      the nature of the offenses and his character. Indiana Appellate Rule 7(B)

      provides that this Court may revise a sentence if it is inappropriate in light of

      the nature of the offense and the character of the offender. We must “conduct

      [this] review with substantial deference and give ‘due consideration’ to the trial

      court's decision—since the ‘principal role of [our] review is to attempt to leaven

      the outliers,’ and not to achieve a perceived ‘correct’ sentence . . . . ” Knapp v.

      State, 9 N.E.3d 1274, 1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d

      1257, 1259 (Ind. 2013)) (internal citations omitted).


[7]   Allen pleaded guilty to Level 2 felony dealing in methamphetamine, Level 4

      felony dealing in methamphetamine, and Level 6 felony theft of a firearm. For

      his Level 2 conviction, he faced a term of ten to thirty years, with an advisory

      term of seventeen and one-half years imprisonment. Ind. Code § 35-50-2-4.5.

      For his Level 4 conviction, he faced a term of two to twelve years

      imprisonment, with an advisory term of six years imprisonment. I.C. § 35-50-2-

      5.5. For his Level 6 conviction, he faced a term of six months to two and one-

      half years, with an advisory term of one year imprisonment. I.C. § 35-50-2-7.

      Allen received an aggregate executed twenty-year sentence.


[8]   Initially, we note that Allen agreed to enter into a plea agreement that provided

      that he could receive a maximum sentence of twenty years. The trial court

      imposed a twenty-year sentence, as contemplated by the plea agreement, and

      because Allen agreed to this sentence, he cannot now argue that it was



      Court of Appeals of Indiana | Memorandum Decision 84A04-1702-CR-406 | July 31, 2017   Page 4 of 5
       inappropriate. His agreement notwithstanding, we will still discuss his

       argument.


[9]    As for the nature of the offense, Allen possessed and intended to deal

       methamphetamine. He committed theft of a firearm. While these offenses are

       not the worst of the worst, Allen put his young child in harm’s way by

       conducting his activities in the presence of and within close proximity to his

       child.


[10]   As for Allen’s character, he has a lengthy history of contact with the criminal

       justice system. As a teenager, he was committed to the Indiana Boys’ School

       four times. As an adult, he has had six felony convictions, including two

       convictions for Class D felony possession of cocaine, Class D felony possession

       of methamphetamine, Class D felony possession of marijuana, and Class C

       felony possession of methamphetamine. In addition, he has had ten

       misdemeanor convictions, including convictions for domestic battery,

       possession of marijuana, and resisting law enforcement.


[11]   Given the nature of the offenses and Allen’s character, including a lengthy

       history of contact with the criminal justice system that has not deterred him

       from continuing to commit crimes, we do not find the sentence imposed by the

       trial court to be inappropriate.


[12]   The judgment of the trial court is affirmed.


       Barnes, J., and Crone, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 84A04-1702-CR-406 | July 31, 2017   Page 5 of 5
