MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Apr 01 2019, 7:00 am
regarded as precedent or cited before any
                                                                          CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
the defense of res judicata, collateral                                    and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Evan Matthew Comer
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Gary T. Hunter, Jr.,                                      April 1, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2142
        v.                                                Appeal from the Fayette Circuit
                                                          Court
State of Indiana,                                         The Honorable Hubert Branstetter,
Appellee-Plaintiff.                                       Jr., Judge
                                                          Trial Court Cause No.
                                                          21C01-1703-F2-245



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2142 | April 1, 2019                 Page 1 of 10
                                        Statement of the Case
[1]   Gary T. Hunter, Jr. appeals his sentence following his guilty plea to possession

      of methamphetamine, as a Level 3 felony. Hunter raises two issues for our

      review, which we restate as follows:


              1.       Whether the trial court abused its discretion when it
                       sentenced him.

              2.       Whether his sentence is inappropriate in light of the nature
                       of the offense and his character.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On March 20, 2017, parole officers with the Connersville Police Department

      (“CPD”) conducted a routine visit of Hunter’s home. When the parole officers

      arrived, there were two individuals in Hunter’s living room. Hunter was in his

      bedroom, but the parole officers asked him to join the other two individuals in

      the living room. The officers were able to observe a small baggie on the floor by

      the couch and a loaded syringe on the coffee table, both of which tested positive

      for methamphetamine. The officers then placed all three individuals in

      handcuffs.


[4]   At that point, the officers called CPD Detective Craig Hamilton and informed

      him of their observations. Based on his conversation with the parole officers,

      Detective Hamilton decided to go to Hunter’s house. When Detective

      Hamilton arrived, he and the other officers conducted a search of the residence.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2142 | April 1, 2019   Page 2 of 10
      During that search, Detective Hamilton observed a set of digital scales in

      Hunter’s bedroom.


[5]   Hunter, who was only wearing underwear, asked officers if they could retrieve a

      pair of pants for him. Detective Hamilton found a pair of jeans in Hunter’s

      bedroom. Detective Hamilton asked Hunter if the jeans belonged to him, and

      Hunter confirmed that they did. Detective Hamilton then searched the pockets

      of the jeans and found a baggie that contained approximately thirty-five grams

      of methamphetamine and a hypodermic needle.


[6]   The State charged Hunter with dealing in methamphetamine, as a Level 2

      felony; maintaining a common nuisance, as a Level 6 felony; possession of a

      hypodermic needle, a Level 6 felony; possession of paraphernalia, as a Class C

      misdemeanor; and as a habitual offender. On May 11, 2018, Hunter entered

      into a plea agreement with the State. In that plea agreement, Hunter agreed to

      plead guilty to one count of possession of methamphetamine, as a Level 3

      felony. He also agreed to admit to probation violations in two other cause

      numbers. In exchange, the State agreed to dismiss the remaining counts.

      Following a hearing, the trial court accepted Hunter’s guilty plea and entered

      judgment of conviction accordingly.


[7]   Thereafter, the trial court held a sentencing hearing. During the hearing,

      Hunter testified that he has had a problem with substance abuse for “all of [his]

      life.” Tr. Vol. II at 32. He further testified that, prior to the current offense, he

      had worked as a confidential informant and that the methamphetamine that


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2142 | April 1, 2019   Page 3 of 10
      officers found at his house had been left there by a “drug dealer that [he]

      busted.” Id. at 35. Hunter testified that he found the methamphetamine

      underneath his dresser and that he should have turned it in to officers but that

      he decided to keep it for himself.


[8]   At the conclusion of the sentencing hearing, Hunter requested the advisory

      sentence of nine years, with seven years in community corrections and two

      years on probation. In support of that request, Hunter asserted that the offense

      was unlikely to recur and that he has suffered from a substance-abuse problem

      for the majority of his life. The State requested an aggravated sentence based

      on its assertions that Hunter did not take responsibility for his actions and that

      Hunter has an extensive criminal history. Following those arguments, the trial

      court sentenced Hunter as follows: “The advisory sentence in this matter

      would be nine years. The Court will find that [sic] prior records aggravating

      and will find the aggravators outweigh the mitigators in this matter and will

      sentence Mr. Hunter to ten years to the Department of Corrections.” Id. at 49.

      Thereafter, the trial court issued a written sentencing order in which it

      sentenced Hunter to ten years without explanation. This appeal ensued.


                                     Discussion and Decision
                                     Issue One: Abuse of Discretion

[9]   Hunter first 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


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2142 | April 1, 2019   Page 4 of 10
       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.


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


               (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)). On appeal, Hunter contends that

       the trial court abused its discretion when it sentenced him because it entered a

       “defective sentencing statement.” Appellant’s Br. at 9. Specifically, Hunter

       asserts that the trial court abused its discretion because the court’s written

       sentencing order “offered no basis for its imposition of a ten-year sentence.” Id.


[11]   Hunter is correct that, in its written sentencing order, the trial court did not

       provide any explanation or reasoning as to why it sentenced him to ten years.

       But, “[w]hen examining the sufficiency of the sentencing statement, we

       examine both the trial court’s written and oral statements.” Gleason v. State, 965

       N.E.2d 702, 710 (Ind. Ct. App. 2012). Here, during the sentencing hearing, the

       trial court identified Hunter’s prior record as an aggravating factor, and it did

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2142 | April 1, 2019   Page 5 of 10
       not identify any mitigating factors. And, based on those findings, the trial court

       sentenced Hunter to ten years. Accordingly, in examining both the oral and

       written statements, we conclude that the trial court’s statement was sufficiently

       detailed to support the imposition of the sentence. See id.at 711.


[12]   Still, Hunter asserts that the trial court’s oral sentencing statements were

       defective because the court “did not define ‘prior records’” when it identified

       that as an aggravating factor, which phrase Hunter contends is ambiguous. Id.

       But contrary to Hunter’s assertions, we do not find the trial court’s use of the

       phrase “prior records” in its oral sentencing statement to be ambiguous. During

       the sentencing hearing, both Hunter and the State discussed Hunter’s criminal

       history. Further, during its closing arguments, the State specifically asserted

       that Hunter was on probation and parole at the time of the instant offense and

       that he had ten prior felony convictions. Then, immediately after the State had

       concluded its closing arguments, the trial court pronounced Hunter’s sentence.

       And the trial court sentenced Hunter to ten years based on its finding that the

       “prior records” were an aggravating factor. Accordingly, it is clear in context

       that the trial court’s use of the phrase “prior records” referred to Hunter’s prior

       criminal record.


[13]   Hunter also contends that the trial court’s oral sentencing statement was

       confusing because it found that the aggravators outweighed the mitigators even




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2142 | April 1, 2019   Page 6 of 10
       though it did not identify any mitigating circumstances. 1 However, a “trial

       court need not state in the record those mitigating circumstances that it

       considered insignificant.” Sandleben v. State, 22 N.E.3d 782, 796 (Ind. Ct. App.

       2014). Accordingly, we conclude that the trial court’s statement that the

       aggravators outweighed the mitigators is either a reference to insignificant

       mitigators, which the court was not required to identify, or, in effect, an

       assertion that the mitigators, if any, are outweighed by the aggravators. In

       either event, we are confident that the trial court acted within its discretion in

       findings that the aggravators outweighed any insignificant mitigators.


[14]   It is well settled that, when sentencing a defendant for a felony, the trial court

       must enter a sentencing statement that includes “reasonably detailed reasons or

       circumstances for imposing a particular sentence.” Anglemyer, 868 N.E.2d at

       490. Here, while arguably brief, the trial court’s oral sentencing statement

       clearly identified the reasons for its decision to impose a slightly aggravated

       sentence. We therefore cannot say that the trial court abused its discretion

       when it sentenced Hunter.




       1
         Hunter does not make any direct argument on appeal that the trial court abused its discretion when it failed
       to identify any particular mitigating factors. While Hunter states that he “was entitled to some benefit for
       pleading guilty” in his argument that his sentence is inappropriate, he does not argue that the trial court
       abused its discretion when it did not identify his guilty plea as a significant mitigating factor. Appellant’s Br.
       at 14.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2142 | April 1, 2019                        Page 7 of 10
                               Issue Two: Inappropriateness of Sentence

[15]   Hunter next contends that his ten-year sentence is inappropriate in light of the

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

       that “[t]he Court may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, the Court finds that the sentence is

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

       offender.” This court has recently held that “[t]he advisory sentence is the

       starting point the legislature has selected as an appropriate sentence for the

       crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017).

       And the Indiana Supreme Court has recently explained that:


               The principal role of appellate review should be to attempt to
               leaven the outliers . . . but not achieve a perceived “correct”
               result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). Defendant has the burden to persuade us that the
               sentence imposed by the trial court is inappropriate. [Anglemyer,
               868 N.E.2d at 494].


       Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).


[16]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell, 895 N.E.2d at 1222. 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.” Id. at 1224.

       The question is not whether another sentence is more appropriate, but rather

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2142 | April 1, 2019   Page 8 of 10
       whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless

       overcome by compelling evidence portraying in a positive light the nature of the

       offense (such as accompanied by restraint, regard, and lack of brutality) and the

       defendant’s character (such as substantial virtuous traits or persistent examples

       of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[17]   The sentencing range for a Level 3 felony is three years to sixteen years, with an

       advisory sentence of nine years. See Ind. Code § 35-50-2-5(b) (2018). In

       imposing Hunter’s sentence, the trial court did not identify any mitigating

       factors, but the court identified Hunter’s criminal history as an aggravating

       factor. In light of those findings, the trial court sentenced Hunter to a slightly

       aggravated sentence of ten years in the Department of Correction.


[18]   Hunter contends that his sentence is inappropriate in light of the nature of the

       offense because he only possessed the methamphetamine as a result of his work

       as a confidential informant and because “[t]he record contains no evidence

       indicating Hunter actually consumed any of the drugs.” Appellant’s Br. at 11.

       And with respect to his character, Hunter asserts that, even though he has a

       criminal history, many of his prior offenses were Class D felonies or were

       misdemeanors and that he had previously functioned well in community

       corrections. He further contends that his intentions were good when he

       volunteered to be a confidential informant and that he accepted responsibility

       for his actions when he pleaded guilty.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2142 | April 1, 2019   Page 9 of 10
[19]   We cannot say that Hunter’s ten-year sentence is inappropriate in light of the

       nature of the offense and his character. Regarding the nature of the offense,

       Hunter admitted to possessing thirty-five grams of methamphetamine, which is

       more than three times the amount that he needed to possess in order to be

       convicted of the Level 3 felony. See I.C. § 35-48-4-1(d) (the offense is a Level 3

       felony if “the amount of the drug involved is at least five (5) grams but less than

       ten (10) grams”). Further, while he asserts that he only possessed the

       methamphetamine because of his work as a confidential informant, Hunter

       admitted that he did not intend to turn it in to police but, rather, that he had

       decided to keep it for himself. As for Hunter’s character, the record

       demonstrates that he has an extensive criminal history. Prior to the instant

       offense, Hunter had been convicted of ten felonies and sixteen misdemeanors.

       Further, he had violated the terms of his probation on several occasions.

       Indeed, Hunter was on probation and parole in two other cause numbers when

       he committed the instant offense. Additionally, Hunter admitted to a long

       history of substance-abuse problems for which he has never sought treatment.

       As such, we cannot say that Hunter’s slightly aggravated sentence is

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

       therefore affirm Hunter’s sentence.


[20]   Affirmed.


       Baker, J., and Robb, J., concur.




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