MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                  Mar 24 2020, 10:11 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr.                                   Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         J. T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Adam R. McCarthy,                                        March 24, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2655
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D05-1903-F6-275



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2655 | March 24, 2020                      Page 1 of 8
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Adam R. McCarthy (McCarthy), appeals his sentence for

      possession of methamphetamine, a Level 6 felony, Ind. Code § 35-48-4-6.1.


[2]   We affirm.


                                                   ISSUES
[3]   McCarthy presents us with two issues on appeal, which we restate as:


          (1) Whether the trial court abused its discretion by failing to recognize

              certain mitigating circumstances; and

          (2) Whether the sentence is inappropriate in light of the nature of the offense

              and his character.


                      FACTS AND PROCEDURAL HISTORY
[4]   On March 11, 2019, the State filed an Information, charging McCarthy with

      possession of methamphetamine, a Level 6 felony. On July 8, 2019, McCarthy

      pled guilty to the offense and entered the Drug Court Diversion Program.

      Pursuant to the requirements of the Drug Court Diversion Program, McCarthy

      agreed to obey all laws, notify his case manager if he was arrested or if he had

      contact with law enforcement officials, and to successfully complete the

      residency program. On his admission to the Program, McCarthy was placed at

      the Park Center Addictions Residential Program. He successfully completed

      the program on August 13, 2019, and was consequently placed at the Freedom

      House. McCarthy failed to complete Freedom House’s program and was

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2655 | March 24, 2020   Page 2 of 8
      terminated from the recovery program on August 25, 2019. On August 30,

      2019, new charges were filed against him for possession of a schedule I

      substance and possession of paraphernalia.


[5]   On October 22, 2019, the trial court conducted a sentencing hearing. During

      the hearing, the trial court found McCarthy’s criminal history to be an

      aggravating circumstance. His criminal involvement includes two

      adjudications as a juvenile where he was found delinquent for having operated

      a vehicle while intoxicated and failing to stop after an accident. As an adult,

      McCarthy collected nine misdemeanor convictions and two prior felony

      convictions, commencing in 2013 with charges for burglary and residential

      entry. He was sentenced to six years, with two years suspended to probation,

      for burglary and to two years for residential entry. He violated his probation.

      In 2013, he was sentenced to thirty days for a misdemeanor conviction. In

      2014, he was sentenced for possession of a synthetic drug. In 2015, he was

      sentenced for operating while intoxicated. In 2018, he was sentenced for public

      intoxication, as well as conversion, resisting law enforcement, and false

      informing. In 2019, McCarthy was sentenced for possession of marijuana. In

      another 2019 Cause, he was convicted of possession of methamphetamine,

      possession of marijuana, and false informing. Lastly, McCarthy was charged

      with possession of a controlled substance, the arrest for which constituted the

      basis of the State’s petition in this cause to revoke his placement with the Drug

      Court Diversion Program. His record is rife with failed efforts at rehabilitation,

      covering a period of time from 2012 to 2019. Through the juvenile system,


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2655 | March 24, 2020   Page 3 of 8
      McCarthy was unsuccessfully given the benefits of operational supervision,

      individual counseling, and substance abuse out-patient treatment. McCarthy

      has received jail sentences, active adult probation, time in the Work Release

      facility, and time on the Home Detention Program. During the hearing in the

      instant Cause, the trial court identified McCarthy’s criminal history as an

      aggravating circumstance and his plea of guilty, acceptance of responsibility

      and his remorse expressed in open court as mitigating circumstances. At the

      close of the hearing, the trial court sentenced him to two years executed at the

      Department of Correction.


[6]   McCarthy now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
[7]   McCarthy contends that the trial court abused its discretion by failing to

      recognize certain mitigating circumstances during his sentencing and by

      imposing a sentence that is inappropriate in light of the nature of the offense

      and his character.


                                        I. Mitigating Circumstances


[8]   Sentencing decisions rest within the sound discretion of the trial court and are

      reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868

      N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). An abuse

      of discretion occurs if the decision is clearly against the logic and effect of the

      facts and circumstances before the court, or the reasonable, probable, and actual

      deductions to be drawn therefrom. Id.
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2655 | March 24, 2020   Page 4 of 8
[9]    The finding of mitigating circumstances is not mandatory but is within the

       discretion of the trial court. Hunter v. State, 72 N.E.3d 928, 935 (Ind. Ct. App.

       2017), trans. denied. The court is neither obligated to accept the defendant’s

       arguments as to what constitutes a mitigating factor nor required to give the

       same weight to a proposed mitigating factor as does the defendant. Id. An

       allegation that the trial court failed to find a mitigating factor requires the

       defendant on appeal to establish that the mitigating evidence is both significant

       and clearly supported by the record. Id.


[10]   Besides an enumeration of the omitted mitigating factors—limited formal

       education and history of mental health and substance abuse 1—McCarthy fails

       to support these proposed mitigators with a quantum of their significance or

       references to the record. Accordingly, we cannot conclude that the trial court

       abused its discretion in failing to find McCarthy’s proffered mitigators.


                                                       II. Sentence


[11]   Pursuant to Indiana Appellate Rule 7(B), we may revise a sentence otherwise

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

       [c]ourt finds that the sentence is inappropriate in light of the nature of the

       offense and the character of the offender.” In our review of sentences under

       this rule, “we must and should exercise deference to a trial court’s sentencing




       1
         McCarthy also alleges that the trial court failed to take into account his guilty plea and acceptance of
       responsibility as mitigating circumstances. However, during the hearing, the trial court stated, “I do find as
       mitigating circumstances your plea of guilty and acceptance of responsibility[.]” (Transcript p. 6).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2655 | March 24, 2020                      Page 5 of 8
       decision, both because Rule 7(B) requires us to give ‘due consideration’ to that

       decision and because we understand and recognize the unique perspective a

       trial court brings to its sentencing decisions.” Trainor v. State, 950 N.E.2d 352,

       355 (Ind. Ct. App. 2011), trans. denied.


[12]   Although we have the power to review and revise sentences, the principal role

       of our review should be to attempt to level the outliers, and identify some

       guiding principles for trial courts and those charged with improvement of the

       sentencing statutes, but not to achieve what we perceive to be a “correct” result

       in each case. Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011),

       trans. denied (citing Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). Our

       review under Appellate Rule 7(B) should focus on “the forest—the aggregate

       sentence—rather than the trees—consecutive or concurrent, number of counts,

       or length of the sentence on any individual count.” Fernbach, 954 N.E.2d at

       1089. The appropriate question is not whether another sentence is more

       appropriate; rather, the question is whether the sentence imposed is

       inappropriate. Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). And

       it is the defendant’s burden on appeal to persuade us that the sentence imposed

       by the trial court is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080

       (Ind. 2006).


[13]   The trial court sentenced McCarthy to two years for a Level 6 felony

       possession. “A person who commits a Level 6 felony [] shall be imprisoned for

       a fixed term of between six (6) months and two and one-half (2 ½) years, with

       the advisory sentence being one (1) year.” I.C. § 35-50-2-7. McCarthy was

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2655 | March 24, 2020   Page 6 of 8
       initially given an opportunity to refrain from illegal drugs by receiving help

       through the Drug Court Diversion Program, resulting in a reduction of his

       actual time served by his credit for 108 days from his participation in the

       diversion program.


[14]   The nature of McCarty’s crime is unremarkable: he was arrested for possession

       of methamphetamines. Nevertheless, his instant offense coincided closely in

       time to his commission of possession of marijuana and paraphernalia in

       another Cause.


[15]   Turning to McCarthy’s character, we note his repeated inability to refrain from

       this kind of offense despite receiving multiple opportunities for reform in the

       past. McCarthy’s criminal history reflects that he has been convicted on several

       drug-related offenses and has been given multiple chances for rehabilitation

       through probation and work release. Instead of trying to reform, he continues

       to offend, most notably with a possession of a controlled substance charge, the

       arrest for which constituted the basis of the State’s petition in this Cause to

       revoke his placement with the Drug Court Diversion Program. Given past

       failed attempts at rehabilitation, given McCarthy’s extensive criminal history,

       and given his pending sentences at present for the same or similar offenses, we

       cannot conclude that McCarthy’s two-year aggravated sentence is

       inappropriate.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2655 | March 24, 2020   Page 7 of 8
                                             CONCLUSION
[16]   Based on the foregoing, we hold that the trial court properly sentenced

       McCarthy.


[17]   Affirmed.


[18]   Baker, J. and Brown, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2655 | March 24, 2020   Page 8 of 8
