MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be                                           Jul 30 2019, 9:32 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Mark A. Kiesler                                           Curtis T. Hill, Jr.
Kiesler Law Office                                        Attorney General of Indiana
New Albany, Indiana
                                                          Sierra A. Murray
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Troy D. Jones,                                            July 30, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1511
        v.                                                Appeal from the Orange Circuit
                                                          Court
State of Indiana,                                         The Honorable Steven L. Owen,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          59C01-1512-F3-1113



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1511 | July 30, 2019                           Page 1 of 7
                                        Statement of the Case
[1]   Troy D. Jones appeals his sentence after he pleaded guilty to dealing in

      methamphetamine, as a Level 3 felony. Jones raises a single issue for our

      review, namely, whether his sixteen-year executed sentence is inappropriate in

      light of the nature of the offense and his character.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On December 4, 2015, two officers with the Paoli Police Department

      investigated a report of attempted shoplifting by four people at the local

      Walmart. Officers arrested two women and one man, and they, in turn, told

      the officers that Jones had driven them there. When questioned by the officers,

      Jones, a habitual traffic violator with a lifetime suspension of his driver’s

      license, initially stated that he had only driven the group a short distance, but he

      later admitted that he had driven them from Mitchell to the Walmart in Paoli.

      The officers arrested Jones. At some point, one of the women asked the officers

      to take care of her dog, which she had left in Jones’ car unattended. The

      officers obliged and, when they got the dog out of Jones’ car, they observed in

      plain view a syringe and a digital scale. Officers then searched the car for

      additional contraband, and they found approximately five grams of

      methamphetamine.


[4]   The State charged Jones with dealing in methamphetamine, as a Level 3 felony,

      and possession of methamphetamine, as a Level 5 felony, and they alleged that

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1511 | July 30, 2019   Page 2 of 7
Jones was a habitual offender. Thereafter, Jones agreed to plead guilty to the

Level 3 felony allegation, and, in exchange, the State agreed to dismiss the

other charges. The trial court accepted Jones’ guilty plea and, following a

hearing, sentenced him as follows:


        That the Mitigating Circumstances in this case were:

        a) The Defendant entered into blind plea of guilty without the
        benefit of plea agreement. The Court assigns moderate weight to
        this factor.

        That the Aggravating Circumstances in this case were:

        a) The defendant violated the terms and conditions of his
        probation and pre-trial release. He reoffended in this case while
        out on bond in 47D01-1507-F5-000789 and has had numerous
        PTR’s in the past that have proven to be unsuccessful. The Court
        gave great weight to this factor.

        b) Lengthy prior criminal history that goes back to the 1990’s.
        Extensive history includes serious offenses, four (4) felonies and
        Habitual Offender status after acquiring two (2) more felonies
        totaling 6 felonies in which the Defendant was sentenced to the
        Indiana Department of Correction[]. The Court finds that the
        likel[i]hood that the Defendant would reoffend is high. The
        Court gave . . . great weight to this factor.

        That after the Court considers both the aggravating and
        mitigat[ing] circumstances, the Court finds that the Aggravating
        Circumstances far outweigh the Mitigating Circumstances in
        this case, and thus sentences the Defendant as follows:

        a) COUNT l: Dealing in Methamphetamine, a Level 3 felony;
        16 years Indiana Department of Correction[], all executed with


Court of Appeals of Indiana | Memorandum Decision 18A-CR-1511 | July 30, 2019   Page 3 of 7
              credit for 479 days previously served (359 actual and 120 good
              time credit days). . . .


      Appellant’s App. Vol. 3 at 17. This appeal ensued.


                                     Discussion and Decision
[5]   Jones asserts on appeal that his sentence is inappropriate in light of the nature

      of the offense and his character. Indiana Appellate Rule 7(B) provides that

      “[t]he 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.” This Court has often recognized that “[t]he advisory sentence is the

      starting point the legislature has selected as an appropriate sentence for the

      crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017).

      And the Indiana Supreme Court has explained that “[t]he principal role of

      appellate review should be to attempt to leaven the outliers . . . but not achieve

      a perceived ‘correct’ result in each case. Defendant has the burden to persuade

      us that the sentence imposed by the trial court is inappropriate.” Shoun v. State,

      67 N.E.3d 635, 642 (Ind. 2017) (citations omitted; omission in original).


[6]   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 v. State, 895 N.E.2d 1219, 1222 (Ind.

      2008). 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,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1511 | July 30, 2019   Page 4 of 7
      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).


[7]   Indiana Code Section 35-50-2-5 (2019) provides that a person who commits a

      Level 3 felony shall be imprisoned for a fixed term of between three and sixteen

      years, with an advisory sentence of nine years. Here, the trial court imposed

      the maximum sentence of sixteen years executed.


[8]   Jones contends that his sentence is inappropriate in light of the nature of the

      offense because: the State did not prove that he “did in fact deliver”

      methamphetamine; without evidence of actual dealing, his crime did “not

      create the immediately dangerous situation that is created by the actual action

      of dealing in methamphetamine to another individual”; and the amount of

      methamphetamine in his possession was “only .23 gram[] over the minimum

      amount of methamphetamine required for a Level 3 felony[.]” Appellant’s Br.

      at 13. And Jones asserts that his sentence is inappropriate in light of his

      character because: he “took responsibility” for his crime and “expressed sorrow

      and remorse for his actions”; he has “taken rehabilitative efforts to improve

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1511 | July 30, 2019   Page 5 of 7
       himself” while incarcerated previously, including obtaining a GED; and he

       “has attempted treatment several times in the past” in an effort to improve his

       life and was not “merely ‘killing time’” while incarcerated. Id. at 13-14.

       Finally, Jones maintains that his “criminal history demonstrates that he has had

       longstanding problems with substance abuse” and states that he “needs

       treatment to try to address his longstanding substance abuse issues.” Id. at 15-

       16. Thus, Jones asks that we revise his sentence to sixteen years with nine years

       executed and seven years suspended to probation.


[9]    We cannot say that the trial court’s imposition of a sixteen-year executed

       sentence is inappropriate in light of the nature of the offense and Jones’

       character. Regarding the nature of the offense, while Jones was not caught

       dealing methamphetamine, officers did find methamphetamine residue on the

       digital scale they found in his car, which supports a reasonable inference that he

       had measured methamphetamine for sale. Further, Jones was on probation at

       the time of the offense, and he drove, despite a lifetime license suspension, three

       people to Walmart. With regard to his character, Jones’ extensive criminal

       history, as detailed by the trial court and which includes six prior felonies and

       spans twenty-seven years and numerous prior commitments to the Department

       of Correction, reflects his poor character. And, again, Jones was on probation

       at the time of the instant offense. Thus, we cannot say that Jones’ sentence is

       inappropriate under Indiana Appellate Rule 7(B), and we affirm his sentence.


[10]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1511 | July 30, 2019   Page 6 of 7
Bailey, J., and May, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1511 | July 30, 2019   Page 7 of 7
