MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                      Feb 04 2015, 9:42 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jeffrey E. Stratman                                      Gregory F. Zoeller
Aurora, Indiana                                          Attorney General of Indiana

                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

George Layton,                                           February 4, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         58A05-1406-CR-292
        v.                                               Appeal from the Ohio Circuit Court
                                                         The Honorable James D. Humphrey
                                                         58C01-1309-FA-004
State of Indiana,
Appellee-Plaintiff




Bailey, Judge.



                                      Case Summary



Court of Appeals of Indiana | Memorandum Opinion 58A05-1406-CR-292 | February 4, 2015   Page 1 of 8
[1]   George Layton (“Layton”) pled guilty to one count of Conspiracy to Commit

      Dealing Methamphetamine, as a Class B felony,1 and was sentenced to fourteen

      years imprisonment, with the term run consecutively to a sixteen-year term of

      imprisonment in another case. He now appeals, raising for our review the sole

      issue of whether his sentence is inappropriate.


[2]   We affirm.



                              Facts and Procedural History
[3]   On September 8, 2013, in Aurora, police stopped a vehicle driven by Randy

      Sewell (“Sewell”); Layton was a passenger in the vehicle. An inventory search

      of Sewell’s vehicle recovered large amounts of methamphetamine precursors,

      including fifteen-thousand matches, fifteen bottles of iodine tincture, two bottles

      of hydrogen peroxide, a can of acetone, and plastic tubing. A second search of

      the vehicle also recovered a box of pseudoephedrine tablets. All of these items

      are associated with a specific procedure for manufacturing methamphetamine.

      All of the car’s occupants were arrested.




      1
        Ind. Code §§ 35-48-4-1.1(a) & 35-41-5-2(a). The Indiana General Assembly revised substantial portions of
      the criminal code, including the offenses involved in this case, effective July 1, 2014. We refer in this case to
      the substantive provisions of the Indiana Code in effect at the time of Layton’s offense.

      Court of Appeals of Indiana | Memorandum Opinion 58A05-1406-CR-292 | February 4, 2015                 Page 2 of 8
[4]   An investigation into Layton’s activities ensued and revealed that on the day of

      the arrest, Layton had purchased fifteen bottles of iodine tincture and two

      bottles of hydrogen peroxide in Dearborn County. Prior to this, from August

      16 to September 3, 2013, Layton had purchased a total of 4.8 grams of

      pseudoephedrine in Lawrenceburg, Dearborn County. On September 7, 2013,

      the day prior to the arrest, Layton had also attempted to purchase

      pseudoephedrine in West Virginia.


[5]   Police also obtained a search warrant for Sewell’s home. A search of the home

      discovered evidence of methamphetamine manufacture and use, and statements

      by the others arrested with Layton indicated that Layton had used

      methamphetamine in the home.


[6]   On September 10, 2013, alongside his co-defendants, Layton was charged with

      two counts of Conspiracy to Commit Dealing Methamphetamine, as Class A

      felonies.2 On December 9, 2013, the State alleged Layton to be a Habitual

      Offender.3




      2
          I.C. §§ 35-48-4-1.1 & 35-41-5-2.
      3
          I.C. § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Opinion 58A05-1406-CR-292 | February 4, 2015   Page 3 of 8
[7]    On February 6, 2014, Layton and the State entered into a plea agreement under

       which Layton agreed to plead guilty to Conspiracy to Commit Dealing

       Methamphetamine, as a Class B felony. The State agreed to dismiss both the

       two counts of Conspiracy to Commit Dealing Methamphetamine, as Class A

       felonies, and the Habitual Offender enhancement. Sentencing was left to the

       trial court’s discretion.


[8]    On February 7, 2014, the trial court accepted Layton’s guilty plea, entered a

       judgment of conviction against him, and ordered the completion of a

       presentence investigation.


[9]    Prior to entering a guilty plea in the instant case, Layton had entered a guilty

       plea to Conspiracy to Commit Dealing Methamphetamine in Dearborn County

       in Cause Number 15D01-1309-FA-0020 (“FA-20”), which plea was related to

       the transactions that took place in Lawrenceburg. On February 28, 2014,

       Layton was sentenced to sixteen years imprisonment in FA-20.


[10]   On March 21, 2014, a sentencing hearing was conducted in the instant

       proceeding. The trial court sentenced Layton to fourteen years imprisonment,

       with his sentence to run consecutively to the sixteen-year term provided for in

       FA-20.


[11]   This appeal ensued.



                                  Discussion and Decision

       Court of Appeals of Indiana | Memorandum Opinion 58A05-1406-CR-292 | February 4, 2015   Page 4 of 8
[12]   Layton contends that his sentence is inappropriate in light of the nature of his

       offense and his character.


[13]   The authority granted to this Court by Article 7, § 6 of the Indiana Constitution

       permitting appellate review and revision of criminal sentences is implemented

       through Appellate Rule 7(B), which provides: “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.” Under this rule, and as

       interpreted by case law, appellate courts may revise sentences after due

       consideration of the trial court’s decision, if the sentence is found to be

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

       offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,

       798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to

       attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.


[14]   Here, Layton was convicted of Conspiracy to Commit Dealing

       Methamphetamine, as a Class B felony. The sentencing range for a Class B

       felony runs from six to twenty years, with an advisory term of ten years. I.C. §

       35-50-2-5.


[15]   Here, Layton was sentenced to fourteen years imprisonment, with that term to

       run consecutively to the sixteen-year sentence in FA-20. The fourteen year

       term in this case was the maximum term to which he could have been

       sentenced under Indiana Code section 35-50-1-2, which governs the length and


       Court of Appeals of Indiana | Memorandum Opinion 58A05-1406-CR-292 | February 4, 2015   Page 5 of 8
       application of consecutive terms of imprisonment. The statute provides, in

       relevant part:

               Except as provided in subsection (d) or (e), the court shall determine
               whether terms of imprisonment shall be served concurrently or
               consecutively. The court may consider the:


               (1) aggravating circumstances in IC 35-38-1-7.1(a); and


               (2) mitigating circumstances in IC 35-38-1-7.1(b);


               in making a determination under this subsection. The court may order
               terms of imprisonment to be served consecutively even if the sentences
               are not imposed at the same time. However, except for crimes of
               violence, the total of the consecutive terms of imprisonment, exclusive
               of terms of imprisonment under IC 35-50-2-8 and IC 35-50-2-10 to
               which the defendant is sentenced for felony convictions arising out of
               an episode of criminal conduct shall not exceed the advisory sentence
               for a felony which is one (1) class of felony higher than the most
               serious of the felonies for which the person has been convicted.


       I.C. § 35-50-1-2(c).


[16]   The State and Layton agreed that Layton’s offense in this case arose “out of an

       episode of criminal conduct” that included Layton’s offense in FA-20. Id.

       With the terms of imprisonment in FA-20 and the present case run

       consecutively, the maximum total term of imprisonment to which Layton could

       have been sentenced was thirty years: the advisory sentence for a Class A

       felony. See I.C. § 35-50-2-4. Because Layton had already been sentenced to

       sixteen years imprisonment in FA-20, the maximum sentence he could have

       received in the instant case with a consecutive sentence was fourteen years

       Court of Appeals of Indiana | Memorandum Opinion 58A05-1406-CR-292 | February 4, 2015   Page 6 of 8
       imprisonment. Layton received this maximum term, and contends it was

       inappropriate.


[17]   Layton contends that the trial court had the discretion to sentence him to a

       concurrent, rather than consecutive term of imprisonment, and its decision to

       impose a consecutive term of imprisonment was inappropriate, as was the

       aggregate term of imprisonment imposed.


[18]   Turning first to the nature of Layton’s offense, Layton engaged in a conspiracy

       to manufacture methamphetamine. Some of Layton’s conduct associated with

       the conspiracy occurred in Dearborn County in FA-20, and some in Ohio

       County. The conspiracy itself appears to have run for more than one month,

       involved travel outside the State of Indiana in an effort to obtain precursors,

       and implicated a total of five individuals in its efforts. This was not, then, an

       unexceptional methamphetamine production effort.


[19]   We turn now to Layton’s character. Layton contends that while he has a

       substantial criminal history, much of it is part of the distant past. Our review of

       his criminal history reveals a different picture. Layton did, as he notes, incur a

       number of his convictions in Ohio in 1983 and earlier; yet that record reflects

       increasingly severe criminal activity, with his 1983 conviction in Ohio resulting

       in a sentence of seven to twenty-five years imprisonment. Then, in 2005,

       Layton committed Burglary in Indiana and received an eight-year sentence; this

       was followed by another Burglary in Ohio and another eight-year sentence.

       After this, Layton apparently moved to West Virginia where he was found


       Court of Appeals of Indiana | Memorandum Opinion 58A05-1406-CR-292 | February 4, 2015   Page 7 of 8
       guilty of Receiving Stolen Property in 2009. In 2010, he was extradited to

       Indiana as a result of a parole violation after being arrested and charged in West

       Virginia for an attempt to operate a methamphetamine laboratory. This was

       followed in 2013 by the charges in this case and in FA-20. He apparently “took

       pride in his past history.” (App’x at 159.)


[20]   Further, we note that at the time of his sentencing, Layton was fifty-eight years

       old. He admitted to daily use of marijuana since age fifteen, saying that he

       would “‘smoke as much as I can get,’” and also admitted regular use of and

       addiction to methamphetamine since age forty-eight. (App’x at 159.) Layton

       has never completed high school or a G.E.D. And while Layton admitted guilt

       in this case, he also received a substantial benefit from that admission: the

       dismissal of two Class A felony charges, each carrying a sentencing range of

       twenty to fifty years imprisonment, see I.C. § 35-50-2-4, and a Habitual Offender

       enhancement.


[21]   In light of the nature of Layton’s offense and his character, we do not consider

       inappropriate the trial court’s decision to sentence him to the maximum

       consecutive sentence available in this case.


[22]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Opinion 58A05-1406-CR-292 | February 4, 2015   Page 8 of 8
