ATTORNEY FOR APPELLANT                             ATTORNEYS FOR APPELLEE
Daniel J. Moore                                    Gregory F. Zoeller
Lafayette, Indiana                                 Attorney General of Indiana

                                                   Richard C. Webster
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                                         In the                                  Dec 10 2014, 9:25 am

                         Indiana Supreme Court
                                  No. 79S04-1412-CR-730

WILLIAM A. PARKS,
                                                           Appellant (Petitioner below),

                                              v.

STATE OF INDIANA,
                                                           Appellee (Respondent below).


             Appeal from the Tippecanoe Superior Court, No. 79D01-1209-FA-14
                          The Honorable Randy J. Williams, Judge


     On Petition to Transfer from the Indiana Court of Appeals, No. 79A04-1305-CR-259



                                     December 10, 2014

David, Justice.

       William Parks was convicted of Class A felony dealing in methamphetamine and
received an aggregate sentence of forty (40) years. Parks now asks this Court to evaluate the
appropriateness of that sentence in light of the nature of the offense and his character under
Indiana Appellate Rule 7(B). Reaffirming our authority and our reluctance to grant such a
request, in this case our collective judgment has determined that a sentence revision is warranted.


                                  Facts and Procedural History


          On the morning of September 15, 2012, William Parks and Amanda Gentry went to the
apartment of David Reeve. Parks told Gentry he planned to “try to cook” at the apartment,
which Gentry understood to mean cook methamphetamine. (Tr. at 148.) While at Reeve’s
apartment, Gentry started smelling strong chemical odors coming from the back room. During
the process of cooking, Reeve knocked over a container of chemicals. The chemical smell
became significantly more intense, and the windows and doors were opened due to the smell.
Jeffrey Deaton was also present at Reeve’s apartment on September 15, 2012, during this time
period.
          Later that evening, Officer Kurt Sinks and Officer Scott Clark were dispatched to the
apartment after receiving reports of a suspected methamphetamine lab. When Officer Sinks
approached the apartment he saw the open door and windows and immediately smelled a strong
odor coming from the apartment. Upon getting closer, Officer Sinks’ nose and throat started
burning, and he was uncertain whether it was safe to enter the premises. He saw Gentry and
Deaton sitting inside, declined Gentry’s offer to enter the apartment and instead requested that
the two step outside to speak with him. Officer Sinks was informed that another individual was
inside, at which point he called inside the apartment asking the individual to exit. The individual
identified himself as Parks. Upon learning that the police were there due to a report of a
suspected methamphetamine lab, Parks immediately denied that there were any drugs or a
methamphetamine lab inside the apartment.          Parks was eventually transported to police
headquarters, where he waived his Miranda rights and was questioned by Officer Chad
Robinson.
          During the interview with Officer Robinson, Parks was calm and cooperative. Parks
admitted to using and attempting to cook methamphetamine. Parks insisted that he wanted to be



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honest and expressed his regret in being involved in this incident. He explained that in two
attempts to cook, he produced about three-quarters of a gram of methamphetamine each time.
           The other officers returned to the apartment with a search warrant. The Indiana State
Police methamphetamine team was also present processing the scene.                     Various items were
collected from the scene, including: lithium batteries, various plastic containers, a black trash bag
filled with additional plastic containers and funnels, a homemade smoking device, and coffee
filters.     Indiana State Police Trooper Brock Russell, who has extensive experience in
investigating methamphetamine labs, concluded that methamphetamine had been manufactured
using the one pot method.1
           On September 21, 2012, Parks was charged with: Count I, Class A felony conspiracy to
commit dealing in methamphetamine; Count II, Class A felony dealing in methamphetamine;
Count III, Class C felony illegal drug lab; Count IV, Class B felony possession of
methamphetamine; and Count V, Class D felony possession of a syringe. The State dismissed
Count V. The jury subsequently found Parks guilty on the remaining four counts and determined
that the offenses occurred within one thousand (1,000) feet of a family housing complex. At
sentencing Parks apologized for his actions and expressed regret for the hurt he had brought onto
his family and community. He acknowledged that his drug addiction has continually caused
problems in his life and hoped that he would be able to receive rehabilitation. Several members
of Parks’ family filed letters with the court in support of him.




1
  The one pot method consists of creating your own ammonia and using any vessel, such as a pop bottle
or jug. It requires pseudoephedrine, ammonia nitrate or sulfate from cold packs or lawn fertilizer, lye
(various types may be used), lithium from batteries, and camp fuel, starting fluid, or lighter fluid, etc. to
each be added to a single bottle. At this point, “the reaction is going to get hot . . . . This is where it’s
highly volatile because . . . all those chemicals that are mixing . . . are not intended to be mixed together.”
(App. at 94). Pressure can easily build up and a vessel can explode.



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          The trial court found the following aggravating factors: Parks’ criminal history as a
juvenile and an adult;2 petitions to revoke probation; failed prior attempts to rehabilitate; and a
history of substance abuse. The court also found mitigating factors, which consisted of: Parks’
family support; cooperation with law enforcement; and the emotional support of his children.
However, determining that the aggravating factors outweighed the mitigating factors, the trial
court sentenced Parks to forty (40) years for the crime of Class A felony dealing in
methamphetamine as charged in Count II.3 Counts I, III, and IV were merged into Count II. Of
the forty-year sentence, twenty-six (26) years were to be executed in the Indiana Department of
Correction, four (4) years were to be executed through Tippecanoe County Community
Corrections, and ten (10) years of the sentence were suspended to probation, of which five (5)
years were to be supervised probation and five (5) years were to be unsupervised.
          Parks initially filed a pro se notice of appeal on June 24, 2013. Parks was appointed
appellate counsel, and an amended notice of appeal was filed on August 12, 2013. Parks
appealed his sentence under Indiana Appellate Rule 7(B), contending that his sentence was
inappropriate given the nature of the offense and his character. The Court of Appeals analyzed
the nature of the offense and Parks’ character separately, and ultimately determined that the
sentence imposed by the trial court was appropriate. Parks v. State, No. 79A04-1305-CR-259




2
  Parks was adjudicated a delinquent child for: criminal deviate conduct; receiving stolen property;
dealing in a look-a-like substance; theft; and possession of marijuana. Parks’ adult record includes
convictions for: Class A misdemeanor operating while intoxicated; Class D felony battery; and Class D
felony possession of chemical reagents and precursors.
3
    Indiana Code § 35-48-4-1.1 (2008) provides in pertinent part:

              (a) A person who: (1) knowingly or intentionally . . . manufactures . . .
                  methamphetamine . . . or (2) possesses, with intent to . . . manufacture . .
                  . methamphetamine . . . commits dealing in methamphetamine, a Class B
                  felony, except . . . (b) The offense is a Class A felony if . . . (3) the
                  person manufactured, delivered, or financed the delivery of the drug . . .
                  (B) in, on, or within one thousand (1,000) feet of . . . (iii) a family
                  housing complex . . . .



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(Ind. Ct. App. May 22, 2014). This Court now grants Parks’ petition to transfer and thereby
vacates the Court of Appeals opinion. See Ind. Appellate Rule 58(A).


                                       Standard of Review


       “Appellate review of the merits of a sentence may be sought on the grounds outlined in
Appellate Rule 7(B).” Cardwell v. State, 895 N.E.2d 1219, 1223 (Ind. 2008). Under Indiana
Appellate Rule 7(B), a reviewing 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.” Ind. Appellate Rule 7(B).


                        Sentence Revision under Indiana Appellate Rule 7(B)


       Indiana Appellate Rule 7(B) leaves much to the discretion of appellate courts, but it does
not detract from the long-recognized principle that “sentencing is principally a discretionary
function in which the trial court’s judgment should receive considerable deference.” Cardwell,
895 N.E.2d at 1222. In conducting review under this standard, this Court has acknowledged that
“reasonable minds may differ” on the appropriateness of a sentence based on “our sense of the
culpability of the defendant, the severity of the crime, the damage done to others, and myriad
other factors that come to light in a given case.” Buchanan v. State, 767 N.E.2d 967, 970 (Ind.
2002); Cardwell, 895 N.E.2d at 1224. In light of this understanding, we reluctantly exercise our
authority to revise Parks’ sentence.


                                               Conclusion


       In our collective judgment, Parks’ sentence is excessive. We believe a more appropriate
sentence given the nature of the offense and the character of the defendant would be an aggregate
sentence of thirty (30) years, with twenty (20) years to be executed at the Department of
Correction, two (2) years to be executed through the Tippecanoe County Community

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Corrections, and eight (8) years to be suspended to probation, of which four (4) years Parks
should be placed on supervised probation and four (4) years on unsupervised probation. This case
is remanded to the trial court to impose a sentence of thirty (30) years for Count II dealing in
methamphetamine4 to be served as stated.


Rush, C.J., Rucker, J., concur
Dickson, J., dissents with separate opinion in which Massa, J., joins.




4
    Recognizing that Counts I, III, and IV were merged into Count II.



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Dickson, Justice, dissenting.


       I respectfully dissent, believing that the trial court's sentencing determination should be
affirmed in this case.


       The appellate authority to review and revise criminal sentences provided in Article 7,
Section 4 of the Indiana Constitution is merely a permissive option. It is implemented by
Indiana Appellate Rule 7(B), which also uses permissive language to state that an appellate court
"may revise a sentence." We have noted that this formulation of balancing the trial court's
sentencing decision with the possibility of appellate revision on appeal "places central focus on
the role of the trial judge, while reserving for the appellate court the chance to review the matter
in a climate more distant from local clamor." Serino v. State, 798 N.E.2d 852, 856–57 (Ind.
2003). In light of an appellate tribunal's limited opportunity to fully perceive and appreciate the
totality of the circumstances personally perceived by the trial judge at trial and sentencing, the
"due consideration of the trial court's decision" required by Rule 7(B) should restrain appellate
revision of sentences to only extremely rare, exceptional cases. Further, when the sentencing
decision of the trial court is within the statutory range and the record reflects careful and
considerable deliberation by the trial court, we ought to exercise even more restraint in revising a
defendant's sentence.


       Any greater frequency in appellate revision of criminal sentences may induce and foster
reliance upon such review for ultimate sentencing evaluations and thus serve as a disincentive to
the cautious and measured fashioning of sentences by trial judges. Restrained sentencing
decisions are best made by a trial judge with the gravity that results from knowing that the
judge's decisions are essentially final.


       I am not convinced that this case is sufficiently rare or exceptional to warrant appellate
intrusion into the trial court's sentencing decision. It is well settled that it is the defendant who
must "persuade the appellate court that his or her sentence has met th[e] inappropriateness
standard of review" under Rule 7(B). Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007)
(quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)). Also, the legislature has
provided an advisory sentence that acts as the starting point for the trial court when selecting an
appropriate sentence for the crime committed. See Anglemyer, 868 N.E.2d at 494. The
particular circumstances of each individual case then guide the trial court's decision to deviate
above or below the advisory sentence, while not exceeding the statutory maximum sentence for
the offense. Appellate review under Rule 7(B) affords the reviewing court the opportunity to
determine if the evidence in the record regarding the nature of the offense and the character of
the defendant render that sentence inappropriate.


       The defendant argues that his character and the nature of the offense warrant revision of
his sentence under Rule 7(B) because the trial court's sentence was "near the extreme[] of the
statutory range," which is often "plainly inappropriate" under Indiana law. Trans. Pet. at 6.
Regarding the nature of the offense, he emphasizes that the amount of methamphetamine
produced in the two days of production was minimal, that the time frame of the operation (two
days) was short, that the minimal amount produced was for personal consumption rather than
dealing or manufacturing, and that the actual location of the operation was not subject to his
control. As to his character, the defendant argues that mitigation consideration is warranted due
to the coincidence of his prior criminal history and his substance abuse issues (implying that he
was a victim of his addiction problem which should warrant sympathy and tolerance); his
cooperation with law enforcement in this case; his apologetic demeanor toward the court,
community, and his family; his genuine remorse; his family's support for him as a man and an
involved father; and his need to provide for dependent children.


       Contrary to the defendant's assertion, however, his sentence is not at the extreme end of
the statutory range. The sentencing range for this crime is twenty to fifty years, with a statutory
advisory sentence of thirty years. Ind. Code § 35-50-2-4 (2008). The trial court sentenced the
defendant to forty years of which ten were suspended to probation and only thirty were to be
actually served. Twenty-six years were to be executed at the Indiana Department of Correction


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and four years executed at the Tippecanoe County Community Corrections. Assuming
successful completion of probation, the defendant's time served under the sentence would be
only thirty years. In today's decision, the majority makes relatively little modification and
reduces the time served from thirty to twenty-two years, declaring the latter to be "more
appropriate." I respectfully believe that an appellate court's sentencing review and revision
capacity and authority does not warrant such minor adjustments.


       Also, amplifying the serious nature of the offense, the defendant callously engaged in the
dangerous process of manufacturing methamphetamine in a residential area where families with
several young children lived. The chemicals involved are both corrosive and prone to dangerous
explosions, requiring careful attention by the producer of the product. The defendant engaged in
the manufacturing process even though he had been up for several days in a row, and he knocked
over the meth solution during production, causing an overwhelming chemical odor and effects to
be noticeable a good distance from the residence. Because the production of the
methamphetamine within 1,000 feet of a family housing complex warranted the defendant's
crime to be treated as a Class A felony, see Ind. Code § 35-48-4-1.1(b)(3)(B)(iii) (2008), the
mere proximity to family housing, standing alone, may well be disregarded as an aggravating
circumstance, but this does not preclude consideration of the careless manner of production
despite the defendant's personal awareness of the proximity to children.


       Similarly, there is considerable evidence that reflects adversely on his character. The
defendant committed the instant offense while on probation, and his criminal history includes a
2010 conviction for felony possession of chemical reagents or precursors. His past criminal
history is riddled with such probation violations and revocations. The defendant claims that he
was an involved and loving father, but he had been consistently in arrears in child support. The
defendant's initial denial to officers of the existence of a meth lab in the residence is incongruent
with his claim of genuine remorse and active cooperation. And, the trial court found that the
defendant was a high risk to re-offend.



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       Giving due consideration to the trial court's responsibility and unique opportunity to
perceive and assess relevant factors, its decision imposing a moderate sentence near the middle
of the designated statutory range, particularly in light of the serious nature of the offense and the
lack of demonstrated virtuous character of the defendant; this case is not an extremely rare,
exceptional case warranting appellate sentence modification. I decline to join the Court's
opinion finding this sentence to be inappropriate.


Massa, J., concurs.




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