                                                                             FILED
                                                                        Jul 08 2019, 9:25 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      R. Patrick Magrath                                          Curtis T. Hill, Jr.
      Alcorn Sage Schwartz & Magrath, LLP                         Attorney General of Indiana
      Madison, Indiana
                                                                  Samantha M. Sumcad
                                                                  Deputy Attorney General
                                                                  Indianapolis, Indiana



                                                   IN THE
           COURT OF APPEALS OF INDIANA

      Robin R. Shinkle,                                           July 8, 2019
      Appellant-Defendant,                                        Court of Appeals Case No.
                                                                  19A-CR-410
              v.                                                  Appeal from the Dearborn
                                                                  Superior Court
      State of Indiana,                                           The Honorable Jonathan N.
      Appellee-Plaintiff.                                         Cleary, Judge
                                                                  Trial Court Cause No.
                                                                  15D01-1712-F2-15



      Najam, Judge.


                                         Statement of the Case
[1]   Robin R. Shinkle appeals his sentence after he pleaded guilty to dealing in

      methamphetamine, as a Level 2 felony. Shinkle raises a single issue for our

      review, namely, whether his seventeen-and-a-half-year sentence—the final three

      Court of Appeals of Indiana | Opinion 19A-CR-410 | July 8, 2019                            Page 1 of 10
      years of which were suspended to probation, and the final two years of

      incarceration prior to probation ordered to be served on home detention—is

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


[2]   We affirm.


                                   Facts and Procedural History
[3]   Around October of 2017, Lawrenceburg police officers learned that Shinkle was

      involved in dealing in methamphetamine. Between late October and December

      1, those officers engaged in six controlled buys of methamphetamine from

      Shinkle. On December 6, officers initiated a traffic stop of Shinkle’s vehicle

      and, during that stop, conducted a canine search of the exterior of his vehicle.

      The canine unit indicated the presence of narcotics in Shinkle’s vehicle, which

      officers then searched, seizing “well above 20 grams” of methamphetamine.

      Tr. at 28. Shinkle later admitted the methamphetamine was his.


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

      felony; possession of methamphetamine, as a Level 4 felony; possession of a

      syringe, as a Level 6 felony; and with being a habitual offender. Thereafter,

      Shinkle agreed to plead guilty to the Level 2 felony allegation, and, in

      exchange, the State agreed to dismiss the other charges. The trial court

      accepted Shinkle’s guilty plea and, following a hearing, sentenced him as

      follows:




      Court of Appeals of Indiana | Opinion 19A-CR-410 | July 8, 2019            Page 2 of 10
        As far as the character of the offender, . . . the Court is required
        to consider the presentence investigation, which is an aggravating
        factor in this case.


        The long history began in 1997, OWI. He received pretrial
        diversion in Ripley County. Battery, a diversion in 1998, Ripley
        County. 2000, check deception, diversion, Dearborn County.
        2000, operating without a license, it looks like that was an
        infraction in Ripley County. And then it looks like there’s
        actually operating a vehicle after suspension, prior, an A
        misdemeanor . . . .


        2000, driving while suspended, in Jennings County, conviction.
        2000, check deception, diversion, in Ripley County. 2001,
        driving while suspended, conviction in Jennings County. 2002,
        felony theft conviction, Jennings County. Probation violation for
        failure to report moving without providing notice, and positive
        for methamphetamine, second probation violation for a new
        criminal offense. Third probation violation, for failure to report.
        2002, Ripley County, check deception, conviction. Probation
        violation for new offenses. 2001, driving while suspended,
        conviction, probation violation for new offenses.


        2002, driving while suspended, conviction. Probation violation
        for methamphetamine, and other violations. 2003, operating
        while suspended, conviction in Ripley County. 2003, felony
        theft, conviction in Ripley County. 2005, battery, diversion in
        Ripley County. 2005, non-support of a dependent child, a Class
        C felony in Dearborn County. Received a sentence of eight
        years, with all eight years suspended to probation. You had a
        probation violation in 2006 for a positive drug screen for cocaine.
        It was filed and then dismissed.


        And then there was a new probation violation filed for auto theft.
        An amended probation violation for a drug screen for an

Court of Appeals of Indiana | Opinion 19A-CR-410 | July 8, 2019            Page 3 of 10
        amphetamine. And you had one year revoked, [which] was
        served on the Dearborn County Work Release Program. 2008,
        Dearborn Superior Court 2, auto theft, a conviction as a
        misdemeanor. 2012, theft conviction as a felony, and possession
        of controlled substance, conviction as a felony in Dearborn
        County Superior Court 2.


        2017, he was charged in Dearborn Circuit Court with dealing in
        methamphetamine, as a Level 2 felony . . . and also corrupt
        business influence . . . . That case was dismissed, pursuant to a
        plea agreement[] that he’d plead guilty in this Court.


        And in this Court, he’s pl[eaded] guilty to dealing in
        methamphetamine, a Level 2 felony. And a possession of meth,
        syringe[,] and habitual offender were dismissed. . . .


        As far as the nature of the criminal offense, it’s undisputed that
        there were six buys. Some with a confidential informant, others
        were directly to an undercover detective . . . . [T]he testimony is
        that there’s a total of 31.4 grams of methamphetamine that were
        bought [at those six buys].


                                                  ***


        When the traffic stop was conducted, there was another
        approximate 20 grams of methamphetamine in Mr. Shinkle’s
        vehicle. So the total methamphetamine seized by Dearborn
        County law enforcement from Mr. Shinkle, in approximately a
        little over a month investigation, was over 50 grams of
        methamphetamine.


                                                  ***




Court of Appeals of Indiana | Opinion 19A-CR-410 | July 8, 2019               Page 4 of 10
        . . . Mr. Shinkle’s testimony is that he’s the middle guy. . . . [H]e
        doesn’t view himself as a drug dealer, he testified, because he’s
        not making money on his transactions.


        The Court finds the culpability of the Defendant is high. This
        was not a one-time event[. T]his was an organized activity where
        he was getting a large amount of methamphetamine and
        distributing that in Dearborn County. It happened multiple
        times. The severity of the crime, and damage to others, . . . is
        highly destructive. . . .


        I’ve heard remorse from Mr. Shinkle today. So the Court finds
        that his culpability is high. That the severity of dealing
        methamphetamine is high, and the damage to others in this
        community is high. The possible penalties for this offense, as a
        Level 2 felony[,] are incarceration between 10 years and 30 years.
        An advisory sentence of 17 ½ years, and a fine up to $10,000. . . .


        . . . The State’s recommendation is that he receive 28 years of the
        30 years of incarceration. The Court finds that the mitigating
        factors that have been presented to the Court is that he has
        pl[eaded] open to the Court. . . . The Court also considers that
        he attempted to cooperate with [local law enforcement officers]
        and there hasn’t been any evidence to the Court that his
        cooperation led to any arrest . . . further up the chain. But there
        is evidence that he . . . attempted to cooperate . . . . The Court
        considers his health concerns, which do appear to be very
        serious. And the Court considers that he does present as a hard-
        worker, as a family man, that he does have some remorse. He
        presents as a very intelligent, articulate man.


        And the Court considers all of those things [to] balance . . . his
        long criminal history. . . .




Court of Appeals of Indiana | Opinion 19A-CR-410 | July 8, 2019              Page 5 of 10
              The knowingly selling drugs [by Shinkle] to one of the drug court
              participants, as the Judge [who] oversees the drug court, the
              Court finds that Mr. Shinkle would not be appropriate for the
              drug court program, with that knowledge. The individuals
              within drug court would know these things. And to include Mr.
              Shinkle in the drug court program when he was knowingly
              dealing drugs to people in treatment, the Court finds that he
              would not be a good fit for drug court.


              He has been assessed by Community Corrections for in-home
              incarcerations. And with in-home incarcerations comes a case
              manager and does come significant counseling. And so he has
              been assessed for the program.


              . . . The Court’s going to impose the advisory sentence, which is
              17 ½ years. . . .


              The Court suspends the final three years of this sentence to
              probation . . . . The final two years prior to the probation . . . will
              be . . . [on] in-home incarceration. . . .


      Id. at 69-75. This appeal ensued.


                                       Discussion and Decision
[5]   Shinkle asserts on appeal that his 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 often recognized that “[t]he advisory sentence is the

      starting point the legislature has selected as an appropriate sentence for the
      Court of Appeals of Indiana | Opinion 19A-CR-410 | July 8, 2019              Page 6 of 10
      crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017).

      And the Indiana Supreme Court has explained that “[t]he principal role of

      appellate review should be to attempt to leaven the outliers . . . but not achieve

      a perceived ‘correct’ result in each case. Defendant has the burden to persuade

      us that the sentence imposed by the trial court is inappropriate.” Shoun v. State,

      67 N.E.3d 635, 642 (Ind. 2017) (citations omitted; omission in original).


[6]   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 v. State, 895 N.E.2d 1219, 1222 (Ind.

      2008). 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 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).


[7]   We first address Shinkle’s argument that our Supreme Court’s recent per curiam

      opinion in Hoak v. State, 113 N.E.3d 1209 (Ind. 2019), requires us to remand for

      the trial court to determine whether Shinkle is eligible for placement in a

      Court of Appeals of Indiana | Opinion 19A-CR-410 | July 8, 2019           Page 7 of 10
       substance abuse treatment program in lieu of placement in the Department of

       Correction. In Hoak, Hoak pleaded guilty to possession of methamphetamine

       and was sentenced to a term of imprisonment to be followed by a term of

       probation. While on probation a little more than three years later, the State

       charged her with two new counts of possession of methamphetamine and a new

       count of possession of paraphernalia. She pleaded guilty to a Level 5 felony

       possession charge and to violating the terms of her probation, and the trial court

       sentenced her to an additional term of imprisonment.


[8]    On appeal, our Supreme Court noted that Hoak had had “multiple drug-related

       contacts with the criminal justice system over many years” but she “has yet to

       receive court-ordered substance abuse treatment.” Id. at 1209 (quotation marks

       omitted). The court then remanded, without further explanation, for the trial

       court “to determine whether Hoak is eligible for substance abuse treatment in a

       Community Corrections placement; and[,] if she is eligible, to order half of her

       sentence to be executed in Community Corrections.” Id. at 1209-10.


[9]    We are not persuaded by Shinkle’s attempt to analogize his circumstances to

       those in Hoak for at least two reasons. First, Shinkle pleaded guilty to dealing,

       not possession. As the trial court here stated during sentencing, Shinkle’s Level

       2 felony dealing offense demonstrates that his “culpability . . . is high.” Tr. at

       72.


[10]   Second, the distinctions between Shinkle’s conviction for dealing and Hoak’s

       convictions for possession aside, the trial court here already considered,


       Court of Appeals of Indiana | Opinion 19A-CR-410 | July 8, 2019            Page 8 of 10
       consistent with our Supreme Court’s holding in Hoak, whether Shinkle was

       eligible for substance abuse treatment programs. The trial court expressly found

       that, because Shinkle had knowingly dealt methamphetamine to a participant in

       the local drug court, it would be inappropriate to place Shinkle in that program.

       Nonetheless, the court did find that Shinkle could benefit from a term with

       community corrections, and the court accordingly ordered the last two years of

       his executed sentence to be served on home detention. As such, the trial court

       did not err under Hoak when it sentenced Shinkle.


[11]   His argument under Hoak notwithstanding, Shinkle also asserts that his

       sentence is inappropriate in light of the nature of the offense because his offense

       “did not involve any violence or threat of violence”; his offense “did not

       involve firearms or endangerment of others”; he “did not cause any harm to

       law enforcement and was cooperative with law enforcement throughout their

       investigation”; he “admitted to his criminal conduct and entered into an open

       plea” and his “sole objective [in the offense] was to feed his own addiction for

       which he had never received treatment.” Appellant’s Br. at 10-11. And he

       argues that his sentence is inappropriate in light of his character because he has

       “a history of liver cancer and ha[s] been diagnosed with hepatitis C”; he had

       had “a double knee replacement, from which he still suffered . . .

       complications” and his wife had been “diagnosed with cancer and needed

       Shinkle’s support and assistance.” Id. at 11.


[12]   We cannot say that the trial court’s restrained imposition of the advisory

       sentence of seventeen and a half years—the advisory sentence being “the

       Court of Appeals of Indiana | Opinion 19A-CR-410 | July 8, 2019           Page 9 of 10
       starting point the Legislature has selected as an appropriate sentence”—here

       with the last three years suspended to probation and the last two years of

       incarceration to be served on home detention, is inappropriate in light of the

       nature of the offense and Shinkle’s character. Bowman v. State, 51 N.E.3d 1174,

       1181 (Ind. 2016). The nature of the offense demonstrates that Shinkle was

       dealing in amounts of methamphetamine well above the statutory requirement,

       and, as the trial court noted, “[t]his was not a one-time event.” Tr. at 72.

       Further, Shinkle knowingly dealt methamphetamine to at least one participant

       in the local drug court program. And Shinkle’s extensive criminal history, as

       detailed by the trial court and which extends beyond drug offenses, reflects

       poorly on his character. Thus, we cannot say that Shinkle’s sentence is

       inappropriate under Indiana Appellate Rule 7(B), and we affirm Shinkle’s

       sentence.


[13]   Affirmed.


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




       Court of Appeals of Indiana | Opinion 19A-CR-410 | July 8, 2019          Page 10 of 10
