MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                     FILED
court except for the purpose of establishing                    Mar 29 2017, 10:51 am

the defense of res judicata, collateral                              CLERK
                                                                 Indiana Supreme Court
estoppel, or the law of the case.                                   Court of Appeals
                                                                      and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
John T. Wilson                                           Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Roy Anthony Peters,                                      March 29, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         33A05-1610-CR-2422
        v.                                               Appeal from the
                                                         Henry Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Jack A. Tandy, Senior Judge
                                                         Trial Court Cause No.
                                                         33C01-1511-F2-6



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 33A05-1610-CR-2422 | March 29, 2017    Page 1 of 7
[1]   Pursuant to a plea agreement, Roy Anthony Peters (“Peters”) pleaded guilty to

      Level 2 felony dealing in methamphetamine,1 and the trial court sentenced him

      to fifteen years executed in the Indiana Department of Correction (“DOC”).

      Peters appeals his sentence, claiming that the trial court should have

      recommended that his sentence be served in DOC’s Purposeful Incarceration

      Program.


[2]   We affirm.


                                         Facts and Procedural History
[3]   On November 6, 2015, the State charged Peters with Level 2 felony dealing in

      methamphetamine and five other drug-related offenses. In July 2016, Peters

      signed a plea agreement, agreeing to plead guilty to Level 2 felony dealing in

      methamphetamine in exchange for the dismissal of the remaining five counts

      and a sentence cap of fifteen years; otherwise, sentencing was open to the trial

      court. On September 22, 2016, after a factual basis was established, the trial

      court accepted Peters’s plea and sentenced him to fifteen years executed in

      DOC.


[4]   At the sentencing hearing, Peters testified that he was “in charge of a restaurant

      management group,” and had “been steadily employed his whole life.” Tr. at

      24. He then stated that he had never been involved in substance abuse




      1
          See Ind. Code § 35-48-4-1.1.


      Court of Appeals of Indiana | Memorandum Decision 33A05-1610-CR-2422 | March 29, 2017   Page 2 of 7
      evaluation or treatment. Peters testified that he was familiar with the DOC’s

      Purposeful Incarceration Program (“Purposeful Incarceration”), a substance

      abuse program that had not been available to Peters when he served time in

      DOC in 2006.2 Peters asked the trial court to recommend that he participate in

      Purposeful Incarceration, thereby allowing the trial court to modify his sentence

      upon successful completion of the program. Id. at 34.


[5]   In response to the State’s questioning, Peters admitted to having a March 2004

      conviction in Rush County for Class D felony possession of cocaine or

      methamphetamine or narcotic, a crime that was initially charged as Class B

      felony dealing.3 In September 2004, while out on bond for the possession

      offense, Peters was charged with, and later convicted in Franklin County of,

      Class B felony manufacturing or delivering methamphetamine. Peters also

      confirmed that, in the present case, he sold two and one-half grams of

      methamphetamine to a confidential informant on or about November 2, 2015.4




      2
       In Marley v. State, 17 N.E.3d 335 (Ind. Ct. App. 2014), trans. denied, our court, quoting from the Indiana
      Department of Correction website, explained:
            In 2009 the Indiana Department of Correction (IDOC) began a cooperative project with Indiana
            Court Systems called Purposeful Incarceration (P.I.). The Department works in collaboration
            with Judges who can sentence chemically addicted offenders and document that they will
            “consider a sentence modification” should the offender successfully complete an IDOC
            Therapeutic community. This supports the Department [of] Correction and the Judiciary to get
            addicted offenders the treatment that they need and work collaboratively to support their
            successful re-entry into society.
      Marley, 17 N.E.3d at 338 n.1 (quoting http://www.in.gov/idoc/2798.htm (last visited Mar. 15, 2017).
      3
       Peters also conceded that he had been arrested four times for driving under the influence in the late 1980s
      and early 1990s. Tr. at 27-28.
      4
        Peters was charged with this offense; however, this count was dismissed as part of the plea agreement in the
      instant case.

      Court of Appeals of Indiana | Memorandum Decision 33A05-1610-CR-2422 | March 29, 2017               Page 3 of 7
      Tr. at 28. Two days later, while officers were serving an arrest warrant for the

      November 2 offense, police found in Peters’s possession thirty-four grams of

      methamphetamine; Peters was then charged with Level 2 felony possession

      with intent to deliver methamphetamine, the instant offense. While out on

      bond, Peters was arrested in Franklin County and charged with maintaining a

      common nuisance and possession of marijuana.5


[6]   During closing remarks, the State asserted that Peters should not be

      recommended for Purposeful Incarceration, saying, “Purposeful Incarceration

      was never intended for drug dealers . . . . [Peters] is selling methamphetamine.

      He has admitted to that today and it happened twice on this case and he has

      had another case where he has either manufactured or sold. Drug dealers

      belong in jail, not in Purposeful Incarceration . . . .” Id. at 31. The trial court

      declined Peters’s request to place him in Purposeful Incarceration and

      sentenced him to fifteen years executed in DOC. Peters now appeals.


                                         Discussion and Decision
[7]   Peters “argues that his sentence is inappropriate in light of the nature of his offense and

      of his character. Specifically, he asserts the Trial Court abused its discretion by not

      recommending he be referred to the [DOC’s] Purposeful Incarceration

      Program.” Appellant’s Br. at 6 (emphasis added). An inappropriate sentence

      analysis, however, does not involve an argument that the trial court abused its




      5
          These two counts were also dismissed as part of the plea agreement in the instant case.


      Court of Appeals of Indiana | Memorandum Decision 33A05-1610-CR-2422 | March 29, 2017         Page 4 of 7
      discretion in sentencing the defendant. King v. State, 894 N.E.2d 265, 267 (Ind.

      Ct. App. 2008). With respect to sentencing arguments, inappropriateness and

      abuse of discretion are different claims that are analyzed separately and should

      not be intermingled. See, e.g., Foutch v. State, 53 N.E.3d 577, 580 n.1 (Ind. Ct.

      App. 2016); King, 894 N.E.2d at 267.


[8]   In his brief, Peters frames his issue as, and consistently argues that, the trial

      court abused its discretion when it did not order that his sentence be served in

      Purposeful Incarceration. However, that issue is not subject to review for abuse

      of discretion. King, 894 N.E.2d at 267. Rather, “[t]he location where a

      sentence is to be served is an appropriate focus for application of our review and

      revise authority” under Appellate Rule 7(B). Id. (citing Biddinger v. State, 868

      N.E.2d 407, 414 (Ind. 2007)); Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct.

      App. 2007). Although Peters briefly refers to Appellate Rule 7(B) and sets forth

      the standard of review for an inappropriateness claim, Appellant’s Br. at 6, he

      has not supported his inappropriateness claim with cogent argument or citation

      to authority as required by Indiana Appellate Rule 46(A)(8)(a). Accordingly,

      any argument regarding appropriateness is waived. See Davis v. State, 835

      N.E.2d 1102, 1113 (Ind. Ct. App. 2005) (observing that failure to present cogent

      argument or citation to authority constitutes waiver of issue for appellate

      review), trans. denied.


[9]   Waiver notwithstanding, our court has recognized, “It will be quite difficult for

      a defendant to prevail on a claim that the placement of his or her sentence is

      inappropriate.” Fonner, 876 N.E.2d at 343. “As a practical matter, trial courts

      Court of Appeals of Indiana | Memorandum Decision 33A05-1610-CR-2422 | March 29, 2017   Page 5 of 7
       know the feasibility of alternative placements in particular counties or

       communities.” Id. “For example, a trial court is aware of the availability,

       costs, and entrance requirements of community corrections placements in a

       specific locale.” Id. at 343-44. Additionally, the question under Appellate Rule

       7(B) is not whether another sentence is more appropriate; rather, the question is

       whether the sentence imposed is inappropriate. Rose v. State, 36 N.E.3d 1055,

       1063 (Ind. Ct. App. 2015).


[10]   Peters asked the trial court to place him in DOC’s Purposeful Incarceration.

       Citing to Peters’s numerous and significant drug-related convictions, the trial

       court denied Peters’s request. Tr. at 35-36. The trial judge explained to Peters:


               I am not going to recommend Purposeful Incarceration for you
               and I appreciate the State’s argument -- I don’t necessarily adhere
               to the distinction between dealers and possessors of drugs
               because I know that that line is very blurred out in the real world
               that you are trading and selling and sharing with associates and
               friends and so forth in addition to receiving money perhaps for
               drugs. My thought or thinking of this situation is that you have
               had several drug related convictions - significant ones. I don’t
               want to -- I am here on a temporary basis -- I don’t want to
               necessarily tie the hands of the future Judge to require that
               person to modify your sentence in the future. They can elect to
               do that if they choose to certainly, but if I put you in Purposeful
               Incarceration then if you complete that program then they have
               modify you [sic]. So, I don’t think based on your situation and
               your criminal history in particular that I want to do that. So, I
               am not going to grant your request to place you in the Purposeful
               Incarceration program but I will encourage you to take
               advantage of whatever treatment programs you have available to
               you while at the Department of Correction and certainly if you
               choose to file a request to review your sentence and request a
       Court of Appeals of Indiana | Memorandum Decision 33A05-1610-CR-2422 | March 29, 2017   Page 6 of 7
               modification in the future then the regular Judge of this Court
               can take a look at that and decide if they want to grant that.


       Id. It was not inappropriate for the trial court to place Peters in DOC, and not

       in DOC’s Purposeful Incarceration program.


[11]   Affirmed.


       Robb, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A05-1610-CR-2422 | March 29, 2017   Page 7 of 7
