MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             May 22 2019, 8:41 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
Leanna Weissmann                                        Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                   Attorney General of Indiana

                                                        Henry A. Flores, Jr.
                                                        Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert M. Judd,                                         May 22, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-3001
        v.                                              Appeal from the Dearborn Circuit
                                                        Court
State of Indiana,                                       The Honorable James D.
Appellee-Plaintiff.                                     Humphrey, Judge

                                                        Trial Court Cause No.
                                                        15C01-1806-F4-10



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3001 | May 22, 2019                   Page 1 of 6
                                          Case Summary
[1]   Around midnight on May 29, 2018, police encountered Robert Judd as he

      attempted to break into a vacant home. At the time, Judd was in possession of

      methamphetamine and a syringe. He was subsequently convicted of Level 5

      felony dealing in methamphetamine and Level 6 felony possession of a syringe

      and was found to be a habitual offender. The trial court sentenced Judd to six

      years and enhanced his sentence by an additional six years by virtue of his

      status as a habitual offender. Judd contends on appeal that his aggregate

      twelve-year sentence is inappropriate. Concluding otherwise, we affirm.



                            Facts and Procedural History
[2]   Around midnight on May 29, 2018, Lawrenceburg Police Officers Bill Lynam

      and Troy Cochran were dispatched to investigate two individuals who were

      attempting to break into a vacant home. Upon arriving at the home, they

      encountered Judd and Samantha Duffy. Officer Lynam asked to see Judd’s

      identification and Judd indicated that it was in his nearby vehicle. As Judd was

      rummaging around the vehicle, Officer Lynam observed a syringe on the

      driver’s-side floorboard, which Judd attempted to push out of view. Judd was

      then placed under arrest.


[3]   During a search incident to Judd’s arrest, Officers Lynam and Cochran

      recovered a plastic bag from Judd’s front pocket. The bag held two additional

      baggies “containing a crystal type substance” which given his training and


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3001 | May 22, 2019   Page 2 of 6
      experience as a police officer, Officer Lynam knew to be “consistent with

      methamphetamine.” Tr. Vol. I p. 46. The outer bag contained .03 grams of

      methamphetamine and the two additional baggies each contained .37 grams of

      methamphetamine.1 The officers also recovered a jeweler’s bag containing

      “cigarette cellophane” and a “ripped corner of a plastic baggie” and a cellular

      telephone from Judd. Tr. Vol. I p. 112. The officers requested and were

      granted a warrant allowing them to search Judd’s telephone. In doing so, the

      Officers reviewed text messages which indicated that Judd was active in dealing

      drugs. For example, in one exchange Duff asked Judd to sell her twenty

      dollars’ worth of methamphetamine. Judd subsequently admitted that he “gave

      [Duff] the dope” during a monitored phone call from jail. Tr. Vol. I p. 165.


[4]   The State charged Judd with Count I – Level 4 felony dealing in

      methamphetamine, Count II – Level 5 felony dealing in methamphetamine,

      Count III – Level 6 felony possession of methamphetamine, and Count IV –

      Level 6 felony possession of a syringe. The State also alleged that Judd is a

      habitual offender. Following trial, a jury found Judd guilty of Counts II

      through IV, but not guilty of Count I. The jury also found Judd to be a habitual

      offender.




      1
        Despite the fact that technicians only tested the substance found in one of the additional baggies, one may
      reasonably infer that both of the additional baggies contained methamphetamine given that the substances in
      the baggies “were visually consistent with one another” and were divided into equal amounts. Tr. Vol. I p.
      79.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3001 | May 22, 2019                      Page 3 of 6
[5]   On November 13, 2018, the trial court sentenced Judd to six years on Count II,

      merged Count III into Count II, and sentenced Judd to two years on Count IV.

      The trial court indicated that the sentence for Count IV would run “concurrent

      with Count II.” Appellant’s App. Vol. III p. 182. The trial court further

      ordered that Judd “shall receive an enhancement of six (6) years which shall

      attach to Count II,” for an aggregate sentence of twelve years. Appellant’s

      App. Vol. III p. 182.



                                Discussion and Decision
[6]   Judd contends that his aggregate twelve-year sentence is inappropriate in light

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

      provides that “The 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.” In analyzing such claims, we “concentrate less on comparing the

      facts of [the case at issue] to others, whether real or hypothetical, and more on

      focusing on the nature, extent, and depravity of the offense for which the

      defendant is being sentenced, and what it reveals about the defendant’s

      character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008) (internal

      quotation omitted). The defendant bears the burden of persuading us that his

      sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App.

      2008).




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3001 | May 22, 2019   Page 4 of 6
[7]   Judd argues that his sentence is inappropriate with respect to the nature of his

      offenses because he only possessed a small amount of drugs and one of the prior

      convictions used to prove that he is a habitual offender was a Level 6 felony.

      At the time of his arrest, Judd possessed .77 grams of methamphetamine. Of

      this, .74 grams were packaged into two equal parts in a manner consistent with

      the sale of drugs. Text messages on Judd’s telephone indicated not only that he

      was active in the sale of drugs, but also that he was actively attempting to

      acquire more drugs. In addition, when selling methamphetamine to Duffy, he

      also provided her with a syringe with which she could inject the

      methamphetamine into her system.2 We believe that possession of drugs for the

      purpose of selling said drugs to others is a serious offense, especially

      considering that Judd also provided his buyers with the means by which they

      could ingest the drugs.


[8]   As for Judd’s argument relating to the habitual offender finding, while one of

      the underlying convictions relied on by the State was a Level 6 felony, the other

      was a Class B felony. Indiana Code section 35-50-2-8(c) provides that “a

      person convicted of a Level 5 felony is a habitual offender if the state proves …

      that the person has been convicted of two (2) prior unrelated felonies” and “at

      least one (1) of the prior unrelated felonies is not a Level 6 felony or a Class D

      felony[.]” The convictions relied upon by the State satisfy Indiana Code section

      35-50-2-8(c) and we cannot say that Judd’s status as a habitual offender is not



      2
          This syringe is in addition to the syringe found in Judd’s vehicle.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3001 | May 22, 2019   Page 5 of 6
       egregious simply because one of the underlying felonies relied on by the State

       was a Level 6 felony.


[9]    Judd’s character also fully justifies his sentence. Judd’s actions and criminal

       history demonstrate a disregard for the law. His “history of bad behavior began

       in juvenile court when he was fourteen (14) years old, and he is now thirty-four

       (34).” Tr. Vol. II p. 57. As an adult, he has accumulated four prior felony

       convictions, five prior misdemeanor convictions, and four probation violations.

       His convictions range from drug possession to violent offenses such as battery

       and robbery resulting in bodily injury. Judd has failed to reform his behavior as

       is evidenced by the fact that he was released from incarceration for one of these

       prior convictions a mere forty-seven days before committing the instant

       offenses. Judd is also considered “very high” risk to reoffend. Appellant’s App.

       Vol. III p. 158. In addition, Judd has continued to show himself to be of poor

       character while incarcerated in the Dearborn County Law Enforcement Center

       during the pendency of this case. For instance, on October 17, 2018, Judd

       defaced jail property by writing a vulgar comment directed at a female officer

       on a window in the recreation area of the jail. Judd has failed to persuade us

       that his sentence is inappropriate. See Sanchez, 891 N.E.2d at 176.


[10]   The judgment of the trial court is affirmed.


       Crone, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3001 | May 22, 2019   Page 6 of 6
