MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              May 12 2020, 9:10 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
Zachary A. Witte                                        Curtis T. Hill, Jr.
Fort Wayne, Indiana                                     Attorney General of Indiana
                                                        Lauren A. Jacobsen
                                                        Sierra A. Murray
                                                        Deputy Attorneys General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Colt M. Bowling,                                        May 12, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2566
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Frances C. Gull,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause Nos.
                                                        02D05-1905-F6-553
                                                        02D05-1906-F6-715



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2566 | May 12, 2020                    Page 1 of 7
[1]   Colt M. Bowling pleaded guilty to charges under two separate causes and was

      sentenced by the Allen Superior Court to an aggregate term of four years in the

      Department of Correction (“DOC”). In this consolidated appeal, Bowling

      claims that his sentence is inappropriate in light of the nature of his offenses and

      his character as an offender.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Bowling was arrested for criminal trespass on May 7, 2019, because he was

      present in a Walmart after having been banned by the company from all

      Walmart stores in 2018. During a search incident to Bowling’s arrest, law

      enforcement discovered in his backpack .7 gram of methamphetamine, 1.1

      grams of marijuana, a rolled marijuana cigarette, and a glass pipe that

      contained methamphetamine residue. On May 10, the State charged Bowling in

      Cause No. 02D05-1905-F6-553 (“F6-553”) with Level 6 felony possession of

      methamphetamine; Class A misdemeanor criminal trespass; Class B

      misdemeanor possession of marijuana; and Class C misdemeanor possession of

      paraphernalia. Bowling was released on bond on June 8.


[4]   On June 12, Bowling was arrested after unlawfully entering a Motel 6 that was

      closed for renovation. Fort Wayne Police Department Officer C. Lichtsinn

      (coincidentally, the same officer who had arrested Bowling at Walmart the

      month before) believed that Bowling was under the influence of an illegal

      substance because Bowling was “extremely paranoid” and “sweating

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2566 | May 12, 2020   Page 2 of 7
      profusely.” Appellant’s Conf. App. p. 185. Bowling admitted that he dropped a

      bag of methamphetamine on the ground outside the Motel 6, and Officer

      Lichtsinn recovered a bag nearby that contained .3 gram of methamphetamine.

      A search of Bowling’s pockets uncovered a glass methamphetamine pipe and .3

      gram of marijuana. The State charged Bowling on June 17 with Level 6 felony

      possession of methamphetamine; Class B misdemeanor possession of

      marijuana; and Class C misdemeanor possession of paraphernalia in Cause No.

      02D05-1906-F6-715 (“F6-715”).


[5]   On July 22, 2019, Bowling entered guilty pleas on all charges under both causes

      and was accepted into the Allen County Drug Court Diversion Program; his

      case was continued for sentencing as part of the diversion program agreement.

      He entered Park Center’s Addiction Residential Unit on July 23 but left one

      week later and did not return or maintain contact with this case manager. The

      trial court issued a warrant for his arrest after Bowling failed to appear at an

      August 5 hearing. Bowling was terminated from the diversion program on

      September 24.


[6]   Bowling appeared for a sentencing hearing for both causes on October 22, 2019.

      The trial court found as aggravating circumstances Bowling’s criminal history;

      his unsuccessful attempts at rehabilitation; a pending charge against him of

      child molesting; and the fact that he was on bond in cause F6-553 when he

      committed the offenses in cause F6-715. The trial court credited Bowling’s

      acceptance of responsibility in pleading guilty and his expression of remorse as

      mitigating circumstances.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2566 | May 12, 2020   Page 3 of 7
[7]   In cause F6-553, Bowling received the following sentences: two years for

      methamphetamine possession, one year for criminal trespass, 180 days for

      marijuana possession, and 60 days for possession of paraphernalia. These

      sentences were to run concurrently, for an aggregate term of two years. In cause

      F6-715, Bowling received two years for methamphetamine possession, 180 days

      for marijuana possession, and 60 days for possession of paraphernalia, also to

      be served concurrently for an aggregate term of two years. The trial court

      ordered these two-year terms to be served consecutively, for a total of four years

      in the DOC. Bowling now appeals.


                                       Discussion and Decision
[8]   Bowling asks that we review and revise his sentence pursuant to Appellate Rule

      7(B),1 which states that we “may revise a sentence authorized by statute if, after

      due consideration of the trial court’s decision, [this] Court finds that the

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

      of the offender.” We also defer to a trial court’s sentencing decision in

      recognition of the unique perspective the trial court brings to sentencing

      decisions. Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). In light of this due

      deference, we will not revise a sentence in the absence of compelling evidence




      1
        Bowling challenges only the two-year sentences imposed for his Level 6 felony convictions and does not
      address the appropriateness of the sentences imposed for his misdemeanor convictions. Our review, however,
      is not limited “merely [because a defendant] challeng[es] an individual sentence within a single order that
      includes multiple sentences.” Moyer v. State, 83 N.E.3d 136, 140 (Ind. Ct. App. 2017), trans. denied. Thus, our
      review will also consider the appropriateness of the concurrent sentences imposed for Bowling’s
      misdemeanor convictions.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2566 | May 12, 2020                       Page 4 of 7
       that portrays in a positive light the nature of the offense and the defendant’s

       character. Id. Furthermore, we do not probe whether the defendant’s sentence is

       appropriate or if another sentence might be more appropriate; rather, the test is

       whether the sentence imposed is inappropriate. Fonner v. State, 876 N.E.2d 340,

       344 (Ind. Ct. App. 2008). Thus, revision under Rule 7(B) is proper only in

       “exceptional cases.” Livingston v. State, 113 N.E.3d 611, 613 (Ind. 2018). It is

       the defendant’s burden to persuade the Court that his sentence meets the

       inappropriateness standard. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007).


[9]    “A person who . . . knowingly or intentionally possesses methamphetamine

       (pure or unadulterated) commits possession of methamphetamine, a level 6

       felony[.]” Ind. Code § 35-48-4-6.1. The sentencing range for a Level 6 felony is

       between six months and two and one-half years, with the advisory sentence

       being one year. I.C. § 35-50-2-7(b). The severity of the offense is heightened

       where the amount of methamphetamine possessed surpasses a certain point.

       I.C. § 35-48-4-6.1. In considering the nature of an offense, the advisory sentence

       as deemed appropriate by the legislature is our starting point. Abbott v. State, 961

       N.E.2d 1016, 1019 (Ind. 2012). Where a sentence deviates from an advisory

       sentence, we consider whether there is anything more or less egregious about

       the offense as committed by the defendant that “makes it different from the

       ‘typical’ offense accounted for by the legislature when it set the advisory

       sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011).


[10]   Bowling was sentenced to two years for Level 6 felony methamphetamine

       possession and received the maximum sentences permitted for each of his

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2566 | May 12, 2020   Page 5 of 7
       misdemeanor convictions. See I.C. §§ 35-50-3-2 through 4. We agree with

       Bowling that there is little in the record indicating that the egregious nature of

       his methamphetamine possession offenses warrants a sentence above the

       advisory sentence. Bowling possessed very small amounts of methamphetamine

       and was cooperative when he was arrested. See Appellant’s App. pp. 92, 170.


[11]   Bowling, however, committed the June 12 offenses in cause F6-715 while he

       was out on bond in cause F6-553. Under these circumstances, Indiana Code

       section 35-50-1-2(e) requires trial courts to order that multiple terms of

       imprisonment be served consecutively. (“If, after being arrested for one (1)

       crime, a person commits another crime. . . while the person is released. . . on

       bond[,] the terms of imprisonment for the crimes shall be served

       consecutively[.]”) Accordingly, it was not inappropriate for the trial court to

       order each two-year sentence served consecutively, based on the back-to-back

       nature of Bowling’s Level 6 felony offenses.


[12]   Bowling also argues that his sentence is inappropriate in light of his character as

       an offender. In assessing a defendant’s character, we engage in a broad

       consideration of his qualities. Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App.

       2014). This consideration may include not only the aggravating and mitigating

       circumstances identified by the trial court, but also any other factors that appear

       in the record. Johnson v. State, 986 N.E.2d 852, 856 (Ind. Ct. App. 2013). One

       relevant factor is an offender’s criminal history, the significance of which varies

       based on the gravity, nature, and number of prior offenses in relation to the

       current offenses. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2566 | May 12, 2020   Page 6 of 7
[13]   At the time of his sentencing, Bowling was twenty-five years old. Appellant’s

       Conf. App. p. 172. His pre-sentence investigation report indicates that he began

       abusing drugs as a teenager. Id. at 180–81. Bowling’s criminal history includes

       convictions for burglary and a number of misdemeanor offenses. Id. at 176–77.

       Despite being granted leniency in sentencing in prior cases, Bowling has had

       terms of probation and home detention revoked and appears to have made little

       progress in addressing his substance abuse issues. In the instant case, too,

       Bowling was afforded the opportunity to participate in a drug court diversion

       program but abandoned the program after one week. Bowling’s criminal history

       and his failure to participate in rehabilitation services to completion does not

       reflect well on his character. More troubling is the fact that, at the time of his

       sentencing, Bowling faced a pending charge of child molestation as a Level 4

       felony. Accordingly, based on our review of Bowling’s character as an offender,

       it was not inappropriate for the trial court to impose sentences above the

       statutory advisory sentences to be served consecutively.


                                                 Conclusion
[14]   Bowling has not met the burden of demonstrating that his sentence is

       inappropriate in light of the nature of his offenses and his character as an

       offender, such that it warrants revision under Appellate Rule 7(B). For this

       reason, we hold that Bowling’s four-year sentence is not inappropriate.


[15]   Affirmed.


       Riley, J., and Tavitas, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2566 | May 12, 2020   Page 7 of 7
