MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any
court except for the purpose of establishing                       Oct 11 2019, 10:26 am

the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
estoppel, or the law of the case.                                      Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kay A. Beehler                                           Curtis T. Hill, Jr.
Terre Haute, Indiana                                     Attorney General of Indiana

                                                         Samuel J. Dayton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Randall L. McDougall,                                    October 11, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-3051
        v.                                               Appeal from the Owen Circuit
                                                         Court
State of Indiana,                                        The Honorable Lori Thatcher
Appellee-Plaintiff.                                      Quillen, Judge
                                                         Trial Court Cause No.
                                                         60C01-1712-F2-951



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3051 | October 11, 2019            Page 1 of 9
                                       Statement of the Case
[1]   Randall L. McDougall appeals his sentence for dealing in methamphetamine,

      as a Level 2 felony; dealing in methamphetamine, as a Level 3 felony; and

      dealing in a controlled substance, as a Level 6 felony, following a jury trial.

      McDougall raises a single issue for our review, namely, whether the trial court

      abused its discretion when it sentenced him. We affirm.


                                 Facts and Procedural History
[2]   On December 14, 2017, McDougall sold 7.08 grams of methamphetamine to a

      confidential informant (“CI”) for the Owen County Sheriff’s Department in

      exchange for $360. The next day, McDougall sold 16.5 grams of

      methamphetamine to the CI in exchange for $700. McDougall also gave the CI

      a tablet that contained oxycodone and acetaminophen. As a result, the State

      charged McDougall with one count of dealing in methamphetamine, as a Level

      2 felony; one count of dealing in methamphetamine, as a Level 3 felony; and

      one count of dealing in a controlled substance, as a Level 6 felony.


[3]   The trial court held a jury trial on September 26 and 27, 2018. At the

      conclusion of the trial, the jury found McDougall guilty as charged, and the

      trial court entered judgment of conviction accordingly. Thereafter, on

      November 20, the trial court held a sentencing hearing. During the hearing, the

      trial court stated:


              Now, most of the time throughout that trial and even somewhat
              through your witnesses today it’s always been suggested that you
              have some accountability, but it’s really not your fault, that it’s
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3051 | October 11, 2019   Page 2 of 9
        always been somebody else that’s put you in these bad
        predicaments that’s resulted in your having over close to nineteen
        years of criminal activity. It looks like you’ve been charged over
        twenty different times when I look at the Pre-Sentence
        Investigation. I think you have at least eight . . . felony
        convictions of which you’ve been placed on probation at least
        eleven different times and of those eleven times you’ve chose[n]
        to violate eight times on probation. So, I think it’s a little
        disingenuous to suggest that it’s all about [the CI] and he’s the
        whole reason you’re here today. I think clearly you’ve had a
        history of dealing and crimes. In fact, you had two pending cases
        . . . when you allegedly—or now have been found guilty of doing
        this one and now you have another pending even after that. . . .
        When I look at your criminal history, to me it looks like you’re
        the person that’s always been involved in a lot of the criminal
        activity in your community. How—I think your sister made a
        comment when she said people that do things still do the same
        things that they did before. And, I think that applies to you just
        like it does . . . any other dealer that wants to deal in this county.
        I don’t like dealers. I don’t think they need to be here. . . . But, I
        think your criminal history is one that certainly suggests that you
        need more than a year. And, the fact is that probably it’s on me
        and any prior judge that’s dealt with you that if this is the longest
        time that you’ve ever had incarceration over twenty years with
        twenty violations it shows that too many pleas were taken along
        the way or too many sentences were way too lenient. And, I
        don’t think that should be the case anymore with you[.]


Tr. Vol. III at 175-77. Accordingly, the trial court sentenced McDougall to

thirty years, with twenty-seven years executed and three years suspended to

probation for the Level 2 felony conviction, sixteen years executed for the Level

3 felony conviction, and two years executed for the Level 6 felony conviction.

The court ordered those sentences to run concurrently.


Court of Appeals of Indiana | Memorandum Decision 18A-CR-3051 | October 11, 2019   Page 3 of 9
[4]   That same day, the trial court issued a written sentencing order in which it

      identified aggravating factors. Specifically, the court found that McDougall

      “has expressed no remorse for his actions nor has he accepted responsibility for

      his crimes” and that, by refusing to accept responsibility, “this type of behavior

      without significant punishment is likely to re-occur in the future.” Appellant’s

      App. Vol. II at 120. The court also found that McDougall “has a significant

      criminal history. He has been charged over 20 times with criminal charges. He

      has had 8 prior felony convictions and has been placed on probation for 11

      different cases and of those 11 cases he has violated his probation 8 times.” Id.

      The court found that there were no significant mitigators and that the

      aggravators “significantly outweigh” any mitigators. Id. Accordingly, the court

      reiterated McDougall’s aggregate sentence of thirty years, with twenty-seven

      years executed and three years suspended to probation. This appeal ensued.


                                     Discussion and Decision
[1]   McDougall contends that the trial court abused its discretion when it sentenced

      him. Sentencing decisions lie within the sound discretion of the trial court.

      Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). 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.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct.

      App. 2014) (citation omitted), trans. denied.


[2]   A trial court abuses its discretion in sentencing if it does any of the following:


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3051 | October 11, 2019   Page 4 of 9
              (1) fails “to enter a sentencing statement at all;” (2) enters “a
              sentencing statement that explains reasons for imposing a
              sentence—including a finding of aggravating and mitigating
              factors if any—but the record does not support the reasons;” (3)
              enters a sentencing statement that “omits reasons that are clearly
              supported by the record and advanced for consideration;” or (4)
              considers reasons that “are improper as a matter of law.”


      Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind.), clarified on reh’g

      other grounds, 875 N.E.2d 218 (Ind. 2007)).


[3]   Here, McDougall was convicted of dealing in methamphetamine, as a Level 2

      felony; dealing in methamphetamine, as a Level 3 felony; and dealing in a

      controlled substance, as a Level 6 felony. The sentencing range for a Level 2

      felony is ten years to thirty years, with an advisory sentence of seventeen and

      one-half years. Ind. Code § 35-50-2-4.5 (2019). The sentencing range for a

      Level 3 felony is three years to sixteen years, with an advisory sentence of nine

      years. I.C. § 35-50-2-5(b). And the sentencing range for a Level 6 felony is six

      months to two and one-half years, with an advisory sentence of one year. I.C. §

      35-50-2-7(d). Following a hearing, the trial court sentenced McDougall to a

      sentence of thirty years, with three years suspended, for the Level 2 felony

      conviction, and to concurrent sentences of sixteen years executed for the Level

      3 felony conviction and two years executed for the Level 6 felony conviction.

      On appeal, McDougall contends that the trial court abused its discretion when

      it identified as aggravating factors a material element of the offense and the fact

      that he had pleaded guilty in prior cases. We address each contention in turn.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3051 | October 11, 2019   Page 5 of 9
                                    Material Element of the Offense

[4]   McDougall first asserts that the trial court abused its discretion when it

      sentenced him because it used “an element of all three counts against him” as

      an aggravating factor to enhance his sentence. Appellant’s Br. at 7.

      Specifically, McDougall contends that, when the court stated during the

      sentencing hearing that it did not like dealers, the trial court relied on the fact

      that he had dealt drugs to enhance his sentence even though the act of dealing

      was a material element of the offense.


[5]   McDougall is correct that, “[w]here a trial court’s reason for imposing a

      sentence greater than the advisory sentence includes material elements of the

      offense, absent something unique about the circumstances that would justify

      deviating from the advisory sentence, that reason is ‘improper as a matter of

      law.’” Gomilla v. State, 13 N.E.3d 846, 852-23 (Ind. 2014) (quoting Anglemeyer,

      868 N.E.2d at 491).


[6]   However, while the trial court stated that it did not like dealers, it made that

      statement while it discussed McDougall’s extensive criminal history. At no

      point did the court identify the fact that McDougall had been convicted of

      dealing in illegal substances to be an aggravating factor. Instead, the court

      stated that McDougall’s “criminal history is one that certainly suggests” that he

      needs a longer sentence. Tr. Vol. III at 177. Further, in the written sentencing

      statement, the court specifically identified as aggravating factors McDougall’s

      lack of remorse, his failure to accept responsibility for his actions, the fact that

      he is likely to reoffend without a significant sentence, and his substantial
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3051 | October 11, 2019   Page 6 of 9
      criminal history, which includes eight felony convictions and eight probation

      violations. Accordingly, it is clear that the trial court did not rely on the fact

      that McDougall was a drug dealer when it imposed an enhanced sentence. As

      such, the trial court did not use an element of the offense as an aggravating

      factor.


                                              Prior Guilty Pleas

[7]   McDougall next contends that the trial court abused its discretion when it

      sentenced him because it identified as an aggravating factor the fact that he had

      pleaded guilty in prior cases. According to McDougall, while “the trial court

      d[id] not elaborate on its statement regarding ‘too many pleas taken’ or ‘too

      many lenient sentences,’” “it is safe to assume that the court believed that

      Appellant McDougall committed the instant offense because he had been

      treated too leniently in past cases.” Appellant’s Br. at. 8. In essence,

      McDougall contends that the court “effectively punished” him for “having

      taken responsibility in past cases[.]” Id.


[8]   We cannot agree with McDougall’s characterization of the trial court’s

      statements at the sentencing hearing. Again, during the sentencing hearing, the

      court stated as follows:


                When I look at your criminal history, to me it looks like you’re
                the person that’s always been involved in a lot of the criminal
                activity in your community. . . . I think your criminal history is
                one that certainly suggests that you need more than a year. And,
                the fact is that probably it’s on me and any prior judge that’s
                dealt with you that if this is the longest time that you’ve ever had

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3051 | October 11, 2019   Page 7 of 9
               incarceration over twenty years with twenty violations it shows
               that too many pleas were taken along the way or too many
               sentences were way too lenient. And, I don’t think that should
               be the case anymore with you[.]


       Tr. Vol. III at 177.


[9]    McDougall’s takeaway from the court’s statement that it improperly relied on

       his past guilty pleas as an aggravator is incorrect. Rather, it is clear that the trial

       court identified his extensive criminal history as an aggravating factor and only

       commented on McDougall’s prior guilty pleas and lenient sentences as part of

       its explanation as to why it decided to impose an aggravated sentence. In other

       words, the court mentioned his prior pleas and sentences to highlight the fact

       that the prior pleas and sentences were not effective and that McDougall

       continued to commit crimes despite his prior chances at rehabilitation.

       Accordingly, the trial court did not rely on an improper aggravator when it

       mentioned his prior guilty pleas.


                                                   Conclusion

[10]   We conclude that the trial court did not consider the fact that McDougall had

       sold drugs, his prior guilty pleas, or his prior sentences as independent

       aggravating factors but as part of his criminal history, which is a valid

       aggravator. Thus, the trial court did not abuse its discretion when it sentenced

       McDougall, and we affirm his sentence.


[11]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3051 | October 11, 2019   Page 8 of 9
Bailey, J., and May, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3051 | October 11, 2019   Page 9 of 9
