MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 Oct 16 2015, 5:25 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald R. Shuler                                         Gregory F. Zoeller
Barkes, Kolbus, Rife & Shuler, LLP                       Attorney General of Indiana
Goshen, Indiana
                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Patrick Bovia Wallace, Jr.,                              October 16, 2015
Appellant-Defendant/Cross-Appellee,                      Court of Appeals Case No.
                                                         20A03-1504-CR-118
        v.                                               Appeal from the Elkhart Circuit
                                                         Court
State of Indiana,                                        The Honorable Terry C.
Appellee-Plaintiff/Cross-Appellant                       Shewmaker, Judge
                                                         Trial Court Cause No.
                                                         20C01-1209-FA-61



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1504-CR-118 | October 16, 2015       Page 1 of 6
                                             Case Summary
[1]   Patrick Bovia Wallace, Jr., appeals the thirty-five year sentence, with thirty-

      three years executed and two years suspended, imposed by the trial court

      following his guilty plea to three counts of class A felony dealing in cocaine.

      He claims that the trial court abused its discretion during sentencing and that

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

      his character.      Choosing to review only the appropriateness of his sentence, we

      conclude that Wallace has not met his burden to demonstrate that his sentence

      is inappropriate. Therefore, we affirm his sentence.


                                 Facts and Procedural History
[2]   On August 29, September 4, and September 12, 2012, Wallace sold crack

      cocaine to a cooperating source in controlled buys set up by the Elkhart Police

      Department. The first two controlled buys occurred within 1000 feet of a

      family housing complex. Following the third controlled buy, police conducted

      a traffic stop and arrest of Wallace and, during a search incident to arrest, police

      discovered 7.8 grams of cocaine on Wallace’s person. The cocaine was

      wrapped in twenty-one individual packages.


[3]   The State charged Wallace with four counts of class A felony dealing in

      cocaine. A guilty plea hearing was held on March 28, 2013. Wallace pled

      guilty to three of the charged counts and the State dismissed one count.

      Following a sentencing hearing, the trial court sentenced Wallace to concurrent




      Court of Appeals of Indiana | Memorandum Decision 20A03-1504-CR-118 | October 16, 2015   Page 2 of 6
      thirty-five-year terms on each count, with thirty-three years executed and two

      years suspended to probation. This appeal ensued.


                                     Discussion and Decision
[4]   We begin by briefly addressing a cross-appeal issue raised by the State. It is

      undisputed that Wallace failed to file a notice of appeal within thirty days of the

      trial court’s imposition of his sentence as required by Indiana Appellate Rule

      9(A)(1). Instead, almost two years later, he filed a petition requesting

      permission to file a belated notice of appeal pursuant to Indiana Post-

      Conviction Rule 2. Indiana Post-Conviction Rule 2(1)(a) allows an eligible

      defendant to request permission to file a belated appeal where the failure to file

      a timely notice of appeal was not the petitioner’s fault and the petitioner has

      been diligent in seeking permission to file a belated notice. Moshenek v. State,

      868 N.E.2d 419, 422 (Ind. 2007). The defendant bears the burden of proving by

      a preponderance of the evidence that he was without fault in the delay of filing

      and was diligent in pursuing permission to file a belated notice of appeal. Id. at

      422-23. The decision whether to grant permission to file a belated notice of

      appeal is within the sound discretion of the trial court. Id. at 422. Where, as

      here, the trial court held a hearing on the petition, we will defer to the trial

      court’s factual determinations and we will affirm the trial court’s decision

      absent an abuse of discretion. Id. at 423-24.


[5]   The State asserts that this appeal should be dismissed because, although

      Wallace sought permission from the trial court to file a belated notice of appeal,


      Court of Appeals of Indiana | Memorandum Decision 20A03-1504-CR-118 | October 16, 2015   Page 3 of 6
      the trial court never specifically granted him permission. The State also

      maintains that, even assuming that the trial court granted Wallace permission,

      any such grant constituted an abuse of discretion. We disagree on both counts.


[6]   At the conclusion of the hearing on Wallace’s petition, and after hearing

      argument from the State and Wallace, the trial court appointed pauper counsel

      on Wallace’s behalf for the purpose of pursuing “an appeal on a belated

      basis[.]” Tr. at 52. This is tantamount to granting permission to file a belated

      notice of appeal. Our review of the record reveals that Wallace adequately

      explained his confusion regarding his rights and the appellate process, and that

      he established by a preponderance of the evidence that he was sufficiently

      diligent and without fault in pursuing permission to file a belated notice appeal.

      Therefore, we cannot say that the trial court abused its discretion in granting

      him permission under the circumstances. In short, we disagree with the State

      on the cross-appeal issue, decline the invitation to dismiss Wallace’s appeal,

      and now turn to address this case on the merits.


[7]   Wallace challenges the aggregate thirty-five-year sentence, with two years

      suspended to probation, imposed by the trial court following his guilty plea to

      three counts of class A felony dealing in cocaine. He argues that the trial court

      abused its discretion during sentencing in its finding of aggravators and also

      that his sentence is inappropriate. We note that, even assuming that we find

      that a trial court has abused its discretion in its finding of aggravators, we may

      choose to review the appropriateness of a sentence under Indiana Appellate

      Rule 7(B) instead of remanding to the trial court for resentencing. See Windhorst

      Court of Appeals of Indiana | Memorandum Decision 20A03-1504-CR-118 | October 16, 2015   Page 4 of 6
      v. State, 868 N.E.2d 504, 507 (Ind. 2007). Because we may dispose of this case

      solely upon an Appellate Rule 7(B) analysis, we will do so.


[8]   Pursuant to Rule 7(B), 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.” 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,

      the damage done to others, and myriad other facts that come to light in a given

      case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The defendant

      bears the burden to persuade this Court that his or her sentence is inappropriate.

      Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). In reviewing the

      appropriateness of a sentence, we consider not only the aggregate length of the

      sentence, but also whether a portion of the sentence was ordered suspended.

      Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).


[9]   As for the nature of the offenses, Wallace admitted to twice selling cocaine

      within close proximity to a family housing complex. On a third occasion,

      Wallace possessed with intent to deliver a significant amount of cocaine, well

      above the threshold required for a class A felony. 1 We disagree with Wallace’s

      characterization of his offenses as “normal” and “mundane.” Appellant’s Br. at




      1
        Wallace possessed, with intent to deliver, 7.8 grams of cocaine. At the time of his offense, Indiana Code
      Section 35-48-4-1(b) provided that the offense of dealing in cocaine is a class A felony “if the amount of drug
      involved weighs three (3) grams or more.”

      Court of Appeals of Indiana | Memorandum Decision 20A03-1504-CR-118 | October 16, 2015              Page 5 of 6
       11, 12. The advisory sentence is the starting point the legislature has selected as

       an appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d

       1016, 1019 (Ind. 2012). The sentencing range for a class A felony is between

       twenty and fifty years, with the advisory sentence being thirty years. Ind. Code

       § 35-50-2-4. Wallace’s executed sentence of thirty-three years is only slightly

       above the advisory for a single class A felony count, and Wallace admitted to

       committing three counts. We cannot conclude that the sentence imposed by

       the trial court was out of line here.


[10]   As for Wallace’s character, the record indicates that Wallace has a criminal

       history that includes numerous arrests and two juvenile delinquency

       adjudications, and at the time of sentencing, he had three pending adult

       misdemeanor charges. The trial court specifically noted Wallace’s extensive

       history (at least seven years) of consistent marijuana use and how it has

       contributed to his criminal behavior. While we commend Wallace for his

       decision to plead guilty to the current offenses, there is nothing about Wallace’s

       character that convinces us that a thirty-three-year executed sentence is

       inappropriate. In sum, we cannot say that Wallace’s sentence is inappropriate

       in light of the nature of his offenses and his character. The judgment of the trial

       court is affirmed.


[11]   Affirmed.


       May, J., and Bradford, J., concur.



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