MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                              Jun 17 2019, 9:12 am
court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark A. Thoma                                            Curtis T. Hill, Jr.
Deputy Public Defender                                   Attorney General of Indiana
Leonard, Hammond, Thoma & Terrill
Fort Wayne, Indiana                                      Courtney Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dimitric A. Freeman,                                     June 17, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-21
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Wendy W. Davis,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D04-1803-F2-11



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-21 | June 17, 2019                     Page 1 of 8
                                          Statement of the Case
[1]   Dimitric Freeman appeals his sentence following his convictions for dealing in

      methamphetamine, as a Level 2 felony, and dealing in cocaine or narcotic drug,

      as a Level 3 felony. Freeman presents two issues for our review:


               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 offenses and his character.


[2]   We affirm.


                                   Facts and Procedural History
[3]   On January 8, 2018, the Allen Circuit Court sentenced Freeman to one year of

      home detention following his conviction for operating a motor vehicle after his

      license had been forfeited for life. Freeman wore an ankle bracelet while on

      home detention. On March 10, Allen County Community Corrections officers

      observed a “no motion” alert 1 from Freeman’s ankle bracelet, and Officers

      Stacey McHenry and Nathan Dodge went to Freeman’s residence to check on

      him. Tr. Vol. 1 at 105. After the officers arrived, Officer McHenry searched

      the upstairs of the townhouse while Officer Dodge spoke with Freeman, along

      with Freeman’s girlfriend and her small child, downstairs. In a bedroom,



      1
       At trial, Officer McHenry explained that a “no motion” alert requires an officer to “check on . . . the
      wellbeing of a person to make sure that they are okay because . . . it is abnormal for somebody to give no
      motion.” Tr. Vol. 1 at 105-06.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-21 | June 17, 2019                        Page 2 of 8
      Officer McHenry found a digital scale with a white powdery residue on it, a

      wallet teeming with cash, 127.2 grams of methamphetamine, and 7.68 grams of

      morphine.


[4]   The State charged Freeman with dealing in methamphetamine, as a Level 2

      felony, and dealing in cocaine or a narcotic drug, as a Level 3 felony. A jury

      found him guilty as charged. The trial court entered judgment of conviction

      accordingly and sentenced Freeman to concurrent sentences of twenty-five

      years with twenty years executed and five years suspended for the Level 2

      felony conviction and ten years executed for the Level 3 felony conviction.

      This appeal ensued.


                                     Discussion and Decision
                            Issue One: Abuse of Discretion in Sentencing

[5]   Freeman 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 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.


[6]   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

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-21 | June 17, 2019   Page 3 of 8
              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)).


[7]   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

      (2018). And 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. Here, at

      sentencing, the trial court identified the following aggravators: Freeman’s

      criminal history, which consists of five felonies, including possession of a

      handgun with obliterated identification marks, and twelve misdemeanors,

      including five convictions for resisting law enforcement; the facts and

      circumstances of the offenses, including the presence of a small child with drugs

      in the home; Freeman’s failure to take advantage of several opportunities with

      alternative sentencing; and that Freeman was on home detention at the time of

      the offenses. The trial court identified no mitigators and imposed an aggregate

      twenty-five-year sentence with twenty years executed and five years suspended.


[8]   Freeman asserts that, “by not making mention of any mitigation [sic] factors

      that were both significant and clearly recorded in the record, the trial court

      abused its discretion in sentencing.” Appellant’s Br. at 17. Freeman maintains

      that the trial court should have found mitigating that: he was “trying to better

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-21 | June 17, 2019   Page 4 of 8
       his situation” by having obtained “Specialized Driving Privileges prior to his

       arrest in this case”; he has community and family support; he was employed

       full-time at the time of the offenses; and the facts and circumstances of the

       offenses “were no greater than the elements of the particular offense[s].” Id. at

       16.


[9]    The finding of mitigating circumstances is within the discretion of the trial

       court. Rascoe v. State, 736 N.E.2d 246, 248-49 (Ind. 2000). An allegation that

       the trial court failed to identify or find a mitigating circumstance requires the

       defendant to establish that the mitigating evidence is both significant and clearly

       supported by the record. Id. at 249. The trial court is not obligated to accept

       the defendant’s contentions as to what constitutes a mitigating circumstance.

       Id.


[10]   We agree with the State that none of the proffered mitigators are significant in

       light of Freeman’s extensive criminal history, his inability to take advantage of

       multiple prior attempts at alternative sentencing, and the nature and

       circumstances of these offenses. Again, Freeman was on home detention at the

       time of the offenses, and he kept a very large amount of methamphetamine in

       the residence in the presence of his girlfriend’s small child. We cannot say that

       the trial court abused its discretion when it declined to identify any mitigators.


                               Issue Two: Inappropriateness of Sentence

[11]   Freeman also contends that his twenty-five-year aggregate sentence, with five

       years suspended, is inappropriate in light of the nature of the offenses and his


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-21 | June 17, 2019   Page 5 of 8
       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 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).


[12]   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

       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

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-21 | June 17, 2019   Page 6 of 8
       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).


[13]   Freeman asserts that his sentence is inappropriate in light of the nature of the

       offenses because the nature and circumstances “were no greater than the actual

       elements of the particular offense[s]” and there was no violence or actual

       dealing involved. Appellant’s Br. at 19. However, again, Freeman was on

       home detention at the time of the offenses and kept a large amount of

       methamphetamine and morphine in the residence in the presence of a small

       child. Indeed, Freeman possessed more than twelve times the amount of

       methamphetamine required to prove dealing in methamphetamine as a Level 2

       felony. See I.C. § 35-48-4-1.1(e). We cannot say that Freeman’s sentence is

       inappropriate in light of the nature of the offenses.


[14]   Freeman contends that his sentence is inappropriate in light of his character

       because of the “positive changes” he has made in his life, his family support,

       and his employment and support of his minor child. Id. at 18. However, as the

       trial court observed, Freeman’s criminal history is significant given the number

       of felony and misdemeanor convictions, including five misdemeanor

       convictions for resisting law enforcement and a felony conviction for possession

       of a handgun with obliterated identification marks. Moreover, Freeman has

       been given many opportunities to avoid incarceration in the past with

       alternative sentencing, but he continued to commit crimes, which does not

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-21 | June 17, 2019   Page 7 of 8
       reflect a good character. Finally, and most importantly, Freeman committed

       the instant crimes while on home detention. We cannot say that Freeman’s

       aggregate sentence of twenty-five years with five years suspended is

       inappropriate in light of the nature of the offenses and his character.


[15]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-21 | June 17, 2019   Page 8 of 8
