                                                                    FILED
                                                               Aug 31 2016, 9:11 am

                                                                    CLERK
                                                                Indiana Supreme Court
                                                                   Court of Appeals
                                                                     and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Daniel J. Vanderpool                                       Gregory F. Zoeller
      Vanderpool Law Firm, PC                                    Attorney General of Indiana
      Warsaw, Indiana
                                                                 J.T. Whitehead
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      John Prater,                                               August 31, 2016
      Appellant-Defendant,                                       Court of Appeals Cause No.
                                                                 85A02-1602-CR-344
              v.                                                 Appeal from the Wabash Superior
                                                                 Court
      State of Indiana,                                          The Honorable Christopher M.
      Appellee-Plaintiff.                                        Goff, Judge
                                                                 Trial Court Cause No.
                                                                 85D01-1512-F6-1152



      Barnes, Judge.


                                              Case Summary
[1]   John Prater appeals his sentence for Level 6 felony aiding in dumping

      controlled substance waste. We affirm in part, reverse in part, and remand.



      Court of Appeals of Indiana | Opinion 85A02-1602-CR-344 | August 31, 2016                Page 1 of 8
                                                      Issues
[2]   Prater raises two issues, which we restate as:


                       I.       whether the trial court abused its discretion
                                when it sentenced him; and

                       II.      whether his sentence is inappropriate in light
                                of the nature of the offense and the character
                                of the offender.

                                                      Facts
[3]   On November 17, 2015, Prater was driving his vehicle in Wabash, and Grant

      Tacker was a passenger. Prater told Tacker to throw a bag that contained

      controlled substance waste from the manufacture of methamphetamine out the

      window, and Tacker did so.


[4]   On December 15, 2015, the State charged Prater with Level 6 felony aiding in

      dumping a controlled substance waste and Class B misdemeanor visiting a

      common nuisance. At his initial hearing on December 17, 2015, Prater pled

      guilty to Level 6 felony aiding in dumping a controlled substance waste. A

      sentencing hearing was held on January 14, 2016. The trial court sentenced

      Prater to one and one-half years in the Department of Correction (“DOC”).

      Prater now appeals.




      Court of Appeals of Indiana | Opinion 85A02-1602-CR-344 | August 31, 2016   Page 2 of 8
                                                     Analysis
                                                   I. Sentencing

[5]   Prater argues that the trial court abused its discretion when it sentenced

      him.1 Sentencing decisions are within the sound discretion of the trial

      court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875

      N.E.2d 218. However, a trial court may be found to have abused its sentencing

      discretion in a number of ways, including: (1) failing to enter a sentencing

      statement at all; (2) entering a sentencing statement that explains reasons for

      imposing a sentence where the record does not support the reasons; (3) entering

      a sentencing statement that omits reasons that are clearly supported by the

      record and advanced for consideration; and (4) entering a sentencing statement

      in which the reasons given are improper as a matter of law. Id. at 490-91. The

      reasons or omission of reasons given for choosing a sentence are reviewable on

      appeal for an abuse of discretion. Id. at 491. The weight given to those reasons,

      i.e. to particular aggravators or mitigators, is not subject to appellate

      review. Id.


[6]   Prater argues that the trial court sentenced him in violation of Indiana Code

      Section 35-38-3-3(d), which provides:




      1
       Prater also argues that the trial court enhanced his sentence beyond the presumptive sentence based on facts
      not found by a jury, admitted by the defendant, or stipulated to during sentencing. In 2005, the General
      Assembly revised our criminal sentencing scheme and eliminated presumptive sentences, which could be
      enhanced or reduced, in favor of advisory sentences. See Pedraza v. State, 887 N.E.2d 77, 79-80 (Ind. 2008).
      Prater’s argument is based on the old sentencing scheme, which is inapplicable here.

      Court of Appeals of Indiana | Opinion 85A02-1602-CR-344 | August 31, 2016                         Page 3 of 8
              After December 31, 2015, a court may not commit a person
              convicted of a Level 6 felony to the department of correction,
              unless:


              (1)      the commitment is due to the person violating a condition
                       of probation, parole, or community corrections by
                       committing a new criminal offense; or


              (2)      the person is convicted of:


                       (A)      at least two (2) Level 6 felonies that are ordered to
                                be served consecutively; or


                       (B)      a Level 6 felony that is enhanced by an additional
                                fixed term under IC 35-50-2-8 through IC 35-50-2-
                                16;


              and the person’s earliest possible release date is more than three
              hundred sixty-five (365) days after the date of sentencing.


              A person who may not be committed to the department of
              correction may be placed on probation, committed to the county
              jail, or placed in community corrections for assignment to an
              appropriate community corrections program.


[7]   Prater committed his offense on November 17, 2015, was convicted on

      December 17, 2015, and was sentenced on January 14, 2016. The State argues

      that the statute only applies to persons convicted after December 31,

      2015. Prater argues that it applies to persons sentenced after December 31,

      2015.



      Court of Appeals of Indiana | Opinion 85A02-1602-CR-344 | August 31, 2016         Page 4 of 8
[8]    When interpreting a statute, the overarching principle is to first decide “whether

       the legislature has spoken clearly and unambiguously on the point in question.”

       Sloan v. State, 947 N.E.2d 917, 922 (Ind. 2011). If a statute is clear and

       unambiguous, courts do not apply any rules of construction other than giving

       effect to the plain and ordinary meaning of the language. Id. Thus, we will not

       delve into legislative intent unnecessarily if no ambiguity exists. Id.


[9]    The language at issue here is: “After December 31, 2015, a court may not

       commit a person convicted of a Level 6 felony to the department of correction .

       . . .” I.C. § 35-38-3-3(d). Although the General Assembly could have said that

       the statute applies only to persons convicted after December 31, 2015, it did not

       do so. Rather, the statute plainly applies to those committed after December 31,

       2015. The definitions applicable to Title 35 note that “imprison” means to

       “commit to the department of correction.” I.C. § 35-31.5-2-166(2). Under the

       plain language of the statute, after December 31, 2015, a trial court is not

       allowed to sentence a person convicted of a Level 6 felony to the DOC unless

       certain circumstances are met. The State concedes that those circumstances are

       not met here. Consequently, because Prater was sentenced after December 31,

       2015, the trial court erred by ordering him to serve his sentence in the DOC.

       We reverse and remand for the trial court to sentence Prater in compliance with

       Indiana Code Section 35-38-3-3(d).


                                          II. Inappropriate Sentence

[10]   Although we remand for the trial court to revise Prater’s sentence in compliance

       with Indiana Code Section 35-38-3-3, we will address Prater’s argument that his
       Court of Appeals of Indiana | Opinion 85A02-1602-CR-344 | August 31, 2016    Page 5 of 8
       one and one-half year sentence is inappropriate under Indiana Appellate Rule

       7(B). Appellate Rule 7(B) provides that 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 offenses and the character

       of the offender. When considering whether a sentence is inappropriate, we

       need not be “extremely” deferential to a trial court’s sentencing decision.

       Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Still, we must

       give due consideration to that decision. Id. We also understand and recognize

       the unique perspective a trial court brings to its sentencing decisions. Id. Under

       this rule, the burden is on the defendant to persuade the appellate court that his

       or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

       2006).


[11]   The principal role of Rule 7(B) review “should be to attempt to leaven the

       outliers, and identify some guiding principles for trial courts and those charged

       with improvement of the sentencing statutes, but not to achieve a perceived

       ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). We “should focus on the forest—the aggregate sentence—rather than

       the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. When reviewing the appropriateness of

       a sentence under Rule 7(B), we may consider all aspects of the penal

       consequences imposed by the trial court in sentencing the defendant, including

       whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010).


       Court of Appeals of Indiana | Opinion 85A02-1602-CR-344 | August 31, 2016    Page 6 of 8
[12]   Prater correctly argues that the nature of his offense was not egregious. Prater

       admitted that he told his passenger to throw a small bag of waste out of his

       vehicle. The bag contained waste from the manufacturing of

       methamphetamine. However, our review of the character of the offender

       reveals that thirty-one-year-old Prater has a significant criminal history. As a

       juvenile, he was adjudicated delinquent for what would have been Class C

       felony burglary. As an adult, he has convictions for Class C misdemeanor

       minor in possession of alcohol, Class B felony criminal confinement, Class C

       felony intimidation, Class B felony dealing in a controlled substance, Class A

       misdemeanor possession of paraphernalia, and Class A misdemeanor

       conversion. Shortly before his arrest for the current offense, Prater violated his

       probation and was ordered to serve 180 days in jail. He has a significant

       substance abuse problem and admitted to using heroin often,

       methamphetamine daily, and Xanax daily. He reported that opiates are his

       drug of choice. Given Prater’s criminal history and substance abuse problems,

       the trial court’s imposition of a one and one-half year sentence is not

       inappropriate.


                                                  Conclusion
[13]   Prater’s sentence is not inappropriate. However, we reverse the trial court’s

       order that Prater serve his sentence in the DOC, and we remand for the trial

       court to sentence Prater in compliance with Indiana Code Section 35-38-3-3.

       We affirm in part, reverse in part, and remand.


[14]   Affirmed in part, reversed in part, and remanded.
       Court of Appeals of Indiana | Opinion 85A02-1602-CR-344 | August 31, 2016   Page 7 of 8
[15]   Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 85A02-1602-CR-344 | August 31, 2016   Page 8 of 8
