MEMORANDUM DECISION
                                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     Nov 29 2017, 10:28 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
Derick W. Steele                                        Curtis T. Hill, Jr.
Deputy Public Defender                                  Attorney General of Indiana
Kokomo, Indiana
                                                        Jesse R. Drum
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Danny D. Pigram,                                        November 29, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        34A02-1706-CR-1454
        v.                                              Appeal from the Howard Superior
                                                        Court
State of Indiana,                                       The Honorable William C.
Appellee-Plaintiff.                                     Menges, Jr., Judge
                                                        Trial Court Cause No.
                                                        34D01-1609-F3-1018



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1706-CR-1454 | November 29, 2017           Page 1 of 8
[1]   Danny D. Pigram appeals his sentence for dealing in a narcotic drug as a level 4

      felony. Pigram raises two issues which we revise and restate as:


            I.     Whether his sentence is inappropriate in light of the nature of
                   the offense and the character of the offender; and

           II.     Whether the trial court erred in imposing conditions of
                   probation.

      We affirm.


                                       Facts and Procedural History

[2]   At some point, a confidential informant made phone contact with Pigram and

      inquired about purchasing $200 worth of heroin. Pigram advised the informant

      that they could meet at Pigram’s residence in Kokomo, Indiana. On August 1,

      2016, he knowingly or intentionally delivered heroin with a weight of at least

      one gram but less than five grams to a confidential informant in exchange for

      $200.


[3]   On September 30, 2016, the State charged Pigram with two counts of dealing in

      a narcotic drug as level 4 felonies, one count of dealing in a narcotic drug as a

      level 3 felony, and two counts of dealing in cocaine as level 4 felonies. On

      April 28, 2017, Pigram pled guilty to one count of dealing in a narcotic drug as

      a level 4 felony, the State agreed to dismiss the remaining charges, and the court

      accepted Pigram’s guilty plea.1




      1
       The court asked if the State had made any promises in exchange for that plea, and the prosecutor stated:
      “We (inaudible) right now. However, I would be willing to (inaudible).” Transcript Volume II at 19. The

      Court of Appeals of Indiana | Memorandum Decision 34A02-1706-CR-1454 | November 29, 2017        Page 2 of 8
[4]   On June 6, 2017, the court held a sentencing hearing. Pigram indicated that he

      has struggled with cognitive problems during his lifetime which caused mental

      illness in part as the result of an accident, and that he suffered a traumatic brain

      injury in 1992 when he was hit by a car. He indicated that he did not think he

      had a criminal attitude or had some sort of license to be able to violate the

      criminal law. He stated that he was using heroin and substances at the time of

      the offense because of his mental illness and his physical problem and that he is

      in pain all the time. He also indicated that he had altercations or incidents in

      jail resulting in punishment. Pigram’s counsel asked him, “And is that

      something that you seem to have much control over or not?” Transcript

      Volume II at 29. Pigram answered, “No, I don’t.” Id. He also testified that he

      tried to better himself in jail and completed the Mothers Against

      Methamphetamine Power Over Addiction Program. The probation officer

      completing the presentence investigation report (“PSI”) recommended a

      sentence of twelve years with two years suspended.


[5]   The court stated Pigram’s “plea of guilty is a mitigating factor, but, in exchange

      for the plea of guilty, four very serious charges were dismissed, all being Level 3

      or 4 felonies. So I think that mitigating factor is deserving of only minimal

      weight.” Id. at 37. It found his health and mental health issues as mitigators.

      The court observed that the PSI listed numerous instances of incidents at the




      court later asked Pigram: “Have you or anyone else received any promises, besides the State’s offer to dismiss
      Counts II through V, or been given anything of value to get you to enter the plea of guilty you’re offering
      today?” Id. at 21. Pigram answered: “No, sir.” Id.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1706-CR-1454 | November 29, 2017          Page 3 of 8
      jail involving sanctions and stated “so obviously his behavior while incarcerated

      pending trial was inappropriate.” Id. It found Pigram’s criminal history to be a

      significant aggravating factor and that the aggravating factors substantially

      outweighed the mitigating factors.


[6]   The court sentenced Pigram to the Department of Correction for twelve years

      with ten years executed and two years suspended to supervised probation. The

      sentencing order provides in part: “As specific conditions of probation,

      [Pigram] is ordered to follow any and all recommendations made by the

      Probation Department including, but not limited to, treatment and education.”

      Appellant’s Appendix Volume II at 61.


                                                  Discussion

                                                        I.


[7]   The first issue is whether Pigram’s sentence is inappropriate in light of the

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

      we “may revise a sentence authorized by statute if, after due consideration of

      the trial court’s decision, [we find] that the sentence is inappropriate in light of

      the nature of the offense and the character of the offender.” Under this rule, the

      burden is on the defendant to persuade the appellate court that his or her

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


[8]   Pigram argues that, “while drug use in the community is a major issue in

      modern society, there was not a victim in the traditional sense to the crime

      charged.” Appellant’s Brief at 7. With respect to the character of the offender,

      Court of Appeals of Indiana | Memorandum Decision 34A02-1706-CR-1454 | November 29, 2017   Page 4 of 8
       Pigram acknowledges that his criminal history is “not ideal,” but asserts that

       the broader review of his character reveals a unique offender in terms of his

       mental and physical health. Id. The State maintains that Pigram’s sentence is

       not inappropriate.


[9]    Our review of the nature of the offense reveals that Pigram knowingly or

       intentionally delivered heroin to a confidential informant in exchange for $200,

       with the drug having a weight of at least one gram but less than five grams.


[10]   Our review of the character of the offender reveals that Pigram, who was born

       on September 25, 1972, pled guilty to one count of dealing in a narcotic drug as

       a level 4 felony and that the charges of dealing in a narcotic drug as a level 4

       felony, dealing in a narcotic drug as a level 3 felony, and two counts of dealing

       in cocaine as level 4 felonies were dismissed. The PSI indicates that Pigram

       described his physical health as fair, that he was hit by a car in 1992 and

       suffered a traumatic brain injury, that he experiences weakness in his left side,

       and that he has back issues, headaches, asthma, borderline diabetes, high blood

       pressure, heart issues, and missing fingers due to being robbed. He reported

       suffering from mental health issues as a result of the traumatic brain injury and

       received mental health services in Wisconsin and Illinois. He also reported

       using marijuana, Ecstasy, cocaine, heroin, and Oxycontin.


[11]   Pigram was charged with multiple offenses in Illinois for which the PSI lists the

       disposition as unknown. Specifically, he was charged with simple battery in

       1991; criminal trespass to State SUP Land, assault, and aggravated assault in


       Court of Appeals of Indiana | Memorandum Decision 34A02-1706-CR-1454 | November 29, 2017   Page 5 of 8
       1992; disorderly conduct in 1993; assault and aggravated battery with great

       bodily harm in 1994; and battery and two counts of criminal trespass to vehicles

       in 1995.


[12]   He has multiple convictions in Wisconsin including disorderly conduct as a

       class B misdemeanor in 1995; Forgery-Uttering as a class C felony, criminal

       damage to property as a misdemeanor, and disorderly conduct as a class B

       misdemeanor in 1997; two counts of battery as misdemeanors in 1998; resisting

       or obstructing an officer, receiving stolen property as a class A misdemeanor,

       and two counts of retail theft as class A misdemeanors in 2002; possession of

       narcotic drugs as a felony, two counts of retail theft as class A misdemeanors,

       escape as a felony, and Unlawful Phone Use-Threatens Harm as a class B

       misdemeanor in 2004; retail theft as a class A misdemeanor, Forgery-Uttering

       as a felony, three counts of theft as class A misdemeanors, criminal damage to

       property as a class A misdemeanor, and bail jumping as a class A misdemeanor

       in 2006; two counts of battery by prisoners as felonies in 2007; possession of

       cocaine as a misdemeanor in 2010; and resisting or obstructing officer as a class

       A misdemeanor, possession of a narcotic drug as a felony, and two counts of

       disorderly conduct as class B misdemeanors in 2012. The PSI also reveals that

       multiple charges in Wisconsin were dismissed. Most recently, Pigram was

       charged with manufacturing/delivering heroin and possession of narcotic drugs

       as felonies and possession of drug paraphernalia as a misdemeanor in 2016 in

       Wisconsin, but these charges were dismissed.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1706-CR-1454 | November 29, 2017   Page 6 of 8
[13]   In Indiana, under another cause number, Pigram was sentenced for possession

       of paraphernalia as a class C misdemeanor in 2017. He was also sentenced for

       two counts of conversion as class A misdemeanors in 2017 under another cause

       number, and a charge of conversion was dismissed under a separate cause

       number. The PSI summarized the convictions as five adult felony and twenty-

       six adult misdemeanor convictions. The PSI states that Pigram’s overall risk

       assessment score using the Indiana Risk Assessment System places him in the

       high risk to reoffend category.


[14]   After due consideration, we conclude that Pigram has not sustained his burden

       of establishing that his sentence of twelve years with two years suspended is

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


                                                        II.


[15]   The next issue is whether the trial court erred in imposing conditions of

       probation. Pigram argues that the probation condition that he follow any and

       all recommendations made by the probation department is unconstitutional

       because it does not notify him what behaviors are prohibited and impermissibly

       permits the probation department to administer the conditions of probation.

       The State asserts that this issue is not ripe as Pigram has not yet been released

       to probation and his probation has not been revoked. We agree.


[16]   The record does not reveal that there has been any petition or proceeding to

       revoke Pigram’s probation. Consequently, we conclude that this issue is not

       ripe for review. See Madden v. State, 25 N.E.3d 791, 797-798 (Ind. Ct. App.

       Court of Appeals of Indiana | Memorandum Decision 34A02-1706-CR-1454 | November 29, 2017   Page 7 of 8
       2015) (“If Madden is . . . referring to any future finding by the Community

       Corrections program that he violated his probation, this question is not yet ripe

       for review as Madden has not yet been found to be in violation of any terms of

       his probation.”), trans. denied; Kimbrough v. State, 911 N.E.2d 621, 638 (Ind. Ct.

       App. 2009) (holding that a claim would become ripe for adjudication only if the

       trial court rescinded the suspension of an order that the defendant pay a $5,000

       fine and the defendant was imprisoned for failing to pay the fine); Gustman v.

       State, 660 N.E.2d 353, 356 (Ind. Ct. App. 1996) (concluding that the

       defendant’s argument that the trial court violated his constitutional rights by

       ordering that he pay child support as a condition of probation immediately

       upon his release from incarceration was not ripe for appellate review), reh’g

       denied, trans. denied.


                                                   Conclusion

[17]   For the foregoing reasons, we affirm Pigram’s sentence.


[18]   Affirmed.


       Baker, J., concurs.


       Riley, J., concurs in result without opinion.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1706-CR-1454 | November 29, 2017   Page 8 of 8
