MEMORANDUM DECISION                                                                  FILED
                                                                                Apr 08 2019, 10:28 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                CLERK
                                                                                 Indiana Supreme Court
regarded as precedent or cited before any                                           Court of Appeals
                                                                                      and Tax Court

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
Brandon E. Murphy                                         Curtis T. Hill, Jr.
Cannon Bruns & Murphy                                     Attorney General of Indiana
Muncie, Indiana
                                                          Samuel J. Dayton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jason Bishop,                                             April 8, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2361
        v.                                                Appeal from the
                                                          Jay Circuit Court
State of Indiana,                                         The Honorable
Appellee-Plaintiff.                                       Brian D. Hutchison, Judge
                                                          Trial Court Cause No.
                                                          38C01-1803-F4-11



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2361 | April 8, 2019                     Page 1 of 8
[1]   Jason Bishop (“Bishop”) pleaded guilty to maintaining a common nuisance,1 a

      Level 6 felony, and was sentenced to one year with two months on home

      detention and ten months suspended to probation. Bishop appeals and raises

      the following restated issue for our review: whether the trial court abused its

      discretion when it entered judgment of conviction for maintaining a common

      nuisance as a Level 6 felony rather than as a Class A misdemeanor.


[2]   We affirm.


                                      Facts and Procedural History
[3]   At the time of Bishop’s offense, Bishop lived in his home with his girlfriend,2

      Devonna Tilley (“Tilley”), and Tilley’s son G.B. Appellant’s App. Vol. II at 31,

      38, 42. On March 13, 2018, G.B. confided to his middle school principal that

      he was tired of his mother selling drugs. Id. at 38. G.B. explained that his

      mother would weigh methamphetamine in front of him and did not try to hide

      from him the fact that she sold methamphetamine. Id. G.B. went on to state

      that he had observed Bishop and Tilley arguing earlier the same morning,

      before G.B. left for school, about the places around the house where Tilley kept




      1
          See Ind. Code § 35-45-1-5(c).
      2
        It is unclear whether Bishop and Tilley were engaged or just in a romantic relationship at the time of
      sentencing; when asked by the trial court during the sentencing hearing whether Tilley was Bishop’s
      girlfriend, Bishop replied, “I mean, we were engaged but like since this has all happened things are kind of
      rocky.” Tr. Vol. II at 19.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2361 | April 8, 2019                       Page 2 of 8
      her drugs. Id. G.B. also told stated that he had seen his mother sell

      methamphetamine recently in the bathroom of Bishop’s home. Id.


[4]   Later that day, the Dunkirk Police Department, Indiana State Police, Jay

      County Sheriff’s Department, and Redkey Police Department executed a no-

      knock search warrant for Bishop’s residence. Id. at 39-40. During the search,

      law enforcement discovered a plastic box holding methamphetamine and other

      items suspected of use in the consumption and dealing of controlled substances.

      Id. at 40. Throughout the house, law enforcement also found scales, lighters,

      razor blades, glass smoking devices, a grinder, rolling papers, a metal spoon, a

      five-gram weight, syringes, plastic bags, some of which contained residue,

      several different pills, and numerous handguns, among other items. Id. at 40-

      41.


[5]   Bishop was arrested and transported for interview with law enforcement.

      During his interview, Bishop was asked whether he was concerned about what

      the police may have found in his home, and he responded, “No, [i]t’s been

      causing fights.” Id. at 42. Bishop told the police that he had recently informed

      Tilley that she had to move out of his house and that she had begun packing her

      things. Id. When Bishop was asked whether he knew why the police were at

      his residence, he replied, “I assume that something got out at some point,” and

      clarified, “well either she bought or sold to somebody or something.” Id.

      Bishop informed the police that Tilley had been dealing methamphetamine

      since “before Christmas.” Id.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2361 | April 8, 2019   Page 3 of 8
[6]   On March 27, 2018, the State charged Bishop with dealing methamphetamine

      as a Level 4 felony, maintaining a common nuisance as a Level 6 felony, and

      unlawful possession of a syringe as a Level 6 felony. On July 19, 2018, Bishop

      pleaded guilty to maintaining a common nuisance, and the State dismissed the

      Level 4 felony dealing in methamphetamine and the Level 6 felony unlawful

      possession of a syringe charges. Sentencing was left entirely to the discretion of

      the trial court. On August 30, 2018, a sentencing hearing was held, and Bishop

      argued that the trial court should enter judgment of conviction as a Class A

      misdemeanor instead of a Level 6 felony because there were no aggravating

      factors and several mitigating factors, including no criminal history, his guilty

      plea saved the State resources, the crime caused no serious harm to persons or

      property, and he was gainfully employed. Tr. Vol. II at 20-21. The trial court

      questioned Bishop and asked him whether Tilley was still living in his home.

      Id. at 18-19. Bishop stated that she was, but that she had nowhere to go. Id. at

      19. Bishop also admitted that his sixteen-year-old son lived in his residence. Id.

      at 16-17, 19. The trial court declined to enter judgment as a Class A

      misdemeanor and sentenced Bishop to one year with two months on home

      detention and ten months suspended to probation. Bishop now appeals.


                                     Discussion and Decision
[7]   Bishop argues that the trial court abused its discretion when it declined to enter

      judgment of conviction as a Class A misdemeanor for his conviction of

      maintaining a common nuisance when it had authority to do so. Bishop asserts

      that this was an abuse of discretion because, at sentencing, the trial court found

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2361 | April 8, 2019   Page 4 of 8
      no aggravating factors and only mitigating factors. Specifically, he contends

      that because he had no criminal history, his crime did not cause or threaten

      serious harm to persons or property, he was gainfully employed, and he had a

      son who was solely dependent on him, the trial court should have exercised its

      discretion and entered judgment of conviction as a Class A misdemeanor.


[8]   Pursuant to Indiana Code section 35-50-2-7(c), when a defendant has

      committed a Level 6 felony, the trial court may enter judgment of conviction as

      a Class A misdemeanor and sentence accordingly. Under that subsection, there

      are exceptions where trial courts do not have discretion to do so and must enter

      judgment of conviction as a Level 6 felony: (1) when a defendant has

      committed a prior, unrelated felony for which judgment was entered as a

      conviction of a Class A misdemeanor and the prior felony was committed less

      than three years before the second felony was committed; (2) the underlying

      offense is domestic battery under Indiana Code section 35-42-2-1.3; or (3) the

      underlying offense is for child pornography under Indiana Code section 35-42-

      4-4(d). Ind. Code § 35-50-2-7(c). In all other cases, the trial court has discretion

      as to whether it enters the conviction as a misdemeanor rather than a felony.

      Id. If a trial court decides to enter the conviction as a misdemeanor, it is

      required to enter a specific reason for its decision into the record, but the statute

      does not require a trial court to make such a detailed finding when it decides to

      keep the conviction as a Level 6 felony.


[9]   Because the use of the word “may” in Indiana Code section 35-50-2-7(c)

      implies that the statute is permissive and grant discretion to the trial court. It

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2361 | April 8, 2019   Page 5 of 8
       does not create a right to the reduction of a Level 6 felony to a Class A

       misdemeanor. See Alden v. State, 983 N.E.2d 186, 189 (Ind. Ct. App. 2013)

       (citing Romine v. Gagle, 782 N.E.2d 369, 380 (Ind. Ct. App. 2003), trans. denied)

       (noting that the trial court was free to deny a petition for reduction of the

       conviction from a felony as long as doing so was not an abuse of discretion),

       trans. denied. Therefore, we review the exercise of such a discretionary decision

       for abuse of discretion. Id. A trial court abuses its discretion when its decision

       is clearly against the logic and effect of the facts and circumstances before it. Id.


[10]   Here, although the trial court found that there were several mitigating factors,

       other evidence supports the trial court’s decision to enter judgment of

       conviction as a Level 6 felony and not as a Class A misdemeanor. Bishop

       pleaded guilty to maintaining a common nuisance, which is “knowingly or

       intentionally maintain[ing] a building or structure . . . for the unlawful use,

       manufacture, keeping, sale, delivery, or financing the delivery of controlled

       substances or items of drug paraphernalia.” Appellant’s App. Vol. II at 6, 23-25.

       This was based on evidence that Tilley, Bishop’s live-in girlfriend, kept drugs

       and other paraphernalia in his home and was involved in drug activity inside of

       Bishop’s home, and Bishop was aware of this activity and the presence of drugs

       in his home. Tr. Vol. II at 17, 21. Moreover, at the sentencing hearing, Bishop

       testified that Tilley still lives with him in his home. Id. at 17-18, 19. The trial

       court questioned Bishop and twice asked him whether he thought it was a good

       idea that Tilley was still in his home. Id. at 19. Bishop responded that “[R]ight

       now [Tilley] has no where [sic] to go . . .” and that it is in his nature to try to

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2361 | April 8, 2019   Page 6 of 8
       “help out.” Id. The evidence showed that in the past Bishop had tolerated

       Tilley keeping drugs in the home and her drug activity within his home, which

       is what led to Bishop’s conviction. Appellant’s App. Vol. II at 38, 42. Although

       Bishop testified that he had instituted a policy that Tilley was no longer allowed

       to have guests or drugs in his house, it was reasonable for the trial court to

       believe that Tilley’s old activities may continue while she is living in Bishop’s

       home. Trial courts are free to decline to reduce a conviction from a felony to a

       misdemeanor as long as the “denial is supported by the logic and effect of the

       facts.” Alden, 983 N.E.2d at 189. Here, the evidence showed that Bishop’s

       conviction had not prompted him to take any steps to change his living

       situation, and the trial court could reasonably have concluded that Bishop’s

       failure to do so in response to what should have been a wakeup call justified the

       entry of a Level 6 felony rather than a Class A misdemeanor.


[11]   Although the trial court found mitigating factors, including Bishop’s lack of a

       criminal history and his employment, it was not required to enter conviction as

       a misdemeanor rather than a felony. Ind. Code § 35-50-2-7(c). While Bishop

       did not have a criminal history, his conduct following his guilty plea in allowing

       Tilley to continue to live in his home indicates that he has taken very few steps

       toward making sure similar offenses do not occur in the future. Based on the

       trial court’s questioning of Bishop regarding Tilley living with him, it appeared

       to be concerned with such a future outcome. We conclude that the trial court




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2361 | April 8, 2019   Page 7 of 8
       did not abuse its discretion when it entered judgment of conviction as a Level 6

       felony and not as a Class A misdemeanor.3


[12]   Affirmed.


       Vaidik, CJ., and Altice, J., concur.




       3
         We note that, although the trial court did not reduce Bishop’s conviction to a Class A misdemeanor at the
       time of sentencing pursuant to Indiana Code section 35-50-2-7(c), there exists a procedure under subsection
       (d) through which Bishop can petition the trial court to convert his Level 6 felony conviction to a Class A
       misdemeanor if certain circumstances are found to exist in the future.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2361 | April 8, 2019                     Page 8 of 8
