MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                             FILED
this Memorandum Decision shall not be
                                                              Jan 13 2017, 10:13 am
regarded as precedent or cited before any
court except for the purpose of establishing                       CLERK
                                                               Indiana Supreme Court
the defense of res judicata, collateral                           Court of Appeals
                                                                    and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael P. Quirk                                         Curtis T. Hill, Jr.
Muncie, Indiana                                          Attorney General of Indiana

                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Samuel Pinkston,                                         January 13, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A04-1607-CR-1629
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Marianne Vorhees,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         18C01-1408-FB-20



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 18A04-1607-CR-1629| January 13, 2017   Page 1 of 5
                                          Case Summary
[1]   Samuel Pinkston was charged with manufacturing methamphetamine and

      entered into a plea agreement that required him to serve a sentence of six years

      but that left to the trial court the decision of where that time would be served.

      The trial court ordered Pinkston to serve all of his time in the Department of

      Correction, and Pinkston appeals. Finding no error, we affirm.



                            Facts and Procedural History
[2]   In July 2016, Pinkston pled guilty to Class B felony dealing in

      methamphetamine (manufacturing). The statutory sentencing range at the time

      of his offense (April 2014) was six to twenty years, with an advisory sentence of

      ten years, see Ind. Code Ann. § 35-50-2-5 (West 2012), but his plea agreement

      called for a sentence of eight years, with six years to serve in a setting

      determined by the trial court and the other two years suspended to probation.

[3]   At the sentencing hearing, Pinkston asked to be allowed to serve his time on

      electronic home detention. He also asked that, if any of his time was to be

      served in the Department of Correction (“DOC”), he be recommended for

      placement in a therapeutic community as part of the DOC’s Purposeful

      Incarceration program. In considering the appropriate placement, the trial

      court found three aggravating circumstances: (1) while this case was pending,

      Pinkston was arrested for and charged with operating while intoxicated and

      operating a vehicle after lifetime license forfeiture; (2) Pinkston was on


      Court of Appeals of Indiana | Memorandum Decision 18A04-1607-CR-1629| January 13, 2017   Page 2 of 5
      supervised probation in another case when he committed the offense in this

      case; and (3) Pinkston has at least seven prior felony convictions stretching back

      to 1991. The court found one mitigating circumstance: Pinkston accepted

      responsibility for his actions and saved the State the expense of going to trial by

      pleading guilty. Explaining that “the circumstances could have supported the

      advisory, if not an enhanced sentence,” Tr. p. 28, the trial court rejected

      Pinkston’s request to serve his time on home detention and instead ordered him

      to serve all of his time in the DOC. However, it found that Pinkston “is an

      appropriate candidate for Purposeful Incarceration through a Therapeutic

      Community” and said that “once Defendant has One (1) actual year or less to

      serve, he may petition the Court to consider ordering him to serve the

      remaining One (1) actual year as a direct commitment to electronic home

      detention.” Appellant’s App. Vol. II, p. 29.

[4]   Pinkston now appeals.



                                 Discussion and Decision
[5]   Pinkston contends that the trial court committed several errors in deciding how

      he would serve his six years. Our trial courts enjoy broad discretion in making

      sentencing decisions, and we will reverse such a decision only for an abuse of

      that discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on

      reh’g, 875 N.E.2d 218 (Ind. 2007).




      Court of Appeals of Indiana | Memorandum Decision 18A04-1607-CR-1629| January 13, 2017   Page 3 of 5
[6]   Pinkston first argues that the trial court “did not give a detailed reason why [he]

      could not serve his executed time on electronic home detention.” Appellant’s

      Br. p. 9. We disagree. After specifically laying out the aggravating and

      mitigating circumstances, the court explained that Pinkston “has not taken

      advantage of prior opportunities for rehabilitation, including prior

      commitments to the Department of Correction and prior attempts at adult

      probation.” Appellant’s App. Vol. III, p. 40 (emphasis added). While

      probation does not always include electronic home detention, the bottom line is

      that Pinkston has not succeeded when given non-DOC alternatives in the past.

      The trial court’s sentencing statement was more than adequate.

[7]   Next, Pinkston points out that he was originally facing three charges

      (possession of reagents or precursors and maintaining a common nuisance, in

      addition to dealing) and that the pre-sentence investigation report “lists all three

      (3) counts as the ‘present offense’, even though it is clear in the plea agreement

      that the Defendant was only pleading guilty to Count 1.” Appellant’s Br. p. 10.

      We first note that Pinkston did not challenge this aspect of the pre-sentence

      investigation report, so he waived any objection in this regard. Waiver

      notwithstanding, the probation officer specifically noted in the report that she

      “concurs with the plea agreement,” which called for two of the three charges to

      be dismissed. Appellant’s App. Vol. III, p. 16. And in any event, there is no

      indication that the trial court relied on the dismissed charges in making its

      decision.




      Court of Appeals of Indiana | Memorandum Decision 18A04-1607-CR-1629| January 13, 2017   Page 4 of 5
[8]   Pinkston’s final argument is that his juvenile delinquency adjudications “should

      not have played a role in the Trial Court’s decision on the method of service of

      the [his] sentence.” Appellant’s Br. p. 10. This claim assumes that Pinkston’s

      adjudications did “play a role” in the trial court’s decision. There is no

      evidence that they did. The trial court made no mention of those adjudications,

      either in its oral sentencing statement or its subsequent written order. In fact, in

      finding Pinkston’s lengthy criminal history to be an aggravating circumstance, it

      only addressed his adult felony convictions.1

[9]   Affirmed.


      Bradford, J., and Brown, J., concur.




      1
        Pinkston does not cite Appellate Rule 7(B), which allows an appellate court to “revise a sentence authorized
      by statute if, after due consideration of the trial court’s decision, the Court the finds that the sentence is
      inappropriate in light of the nature of the offense and the character of the offender.” To the extent Pinkston
      is arguing that his sentence is inappropriate, we disagree.

      Court of Appeals of Indiana | Memorandum Decision 18A04-1607-CR-1629| January 13, 2017            Page 5 of 5
