Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                              FILED
before any court except for the                              Feb 12 2013, 8:46 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the                           CLERK
                                                                  of the supreme court,

law of the case.                                                  court of appeals and
                                                                         tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

DERICK W. STEELE                                 GREGORY F. ZOELLER
Deputy Public Defender                           Attorney General of Indiana
Kokomo, Indiana
                                                 JOSEPH Y. HO
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DANIEL PETERS,                                   )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 34A02-1207-CR-569
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE HOWARD SUPERIOR COURT
                       The Honorable William C. Menges, Jr., Judge
                            Cause No. 34D01-1009-FA-856




                                     February 12, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                 Case Summary and Issue

       Daniel Peters pleaded guilty to possession of methamphetamine in excess of three

grams, a Class B felony, and was ultimately sentenced to fifteen years, all executed.

Peters appeals his sentence, arguing it is inappropriate in light of the nature of his offense

and his character. Concluding the sentence is not inappropriate, we affirm.

                               Facts and Procedural History

       On two occasions in September 2010, Peters agreed with a confidential informant

to purchase the ingredients for and then teach the informant how to manufacture

methamphetamine in excess of three grams. The State charged Peters with conspiracy to

commit dealing in methamphetamine, a Class A felony; dealing in a schedule II

controlled substance, a Class B felony; and unlawful sale of legend drugs, a Class D

felony.

       On April 27, 2011, Peters appeared in court and entered a plea of guilty to

possession of methamphetamine in excess of three grams, a Class B felony and a lesser-

included offense of the conspiracy to commit dealing in methamphetamine charge. The

“Recommendation of Plea Agreement” filed by the parties states:

              The sentence shall be left to the discretion of the Court after
       evidence and argument. Said sentencing shall be deferred during the
       Defendant’s participation in the Howard County Drug Court Program.
              Should the Defendant successfully complete the Howard County
       Drug Court Program, this cause and all charges filed in it shall be
       dismissed.
              Should the Defendant fail the Howard County Drug Court Program,
       this matter shall be set for sentencing with the term and conditions of that
       sentence decided by the Court after evidence and arguments presented by
       the parties.
              If the Defendant fails the Howard County Drug Court Program, the
       State of Indiana agrees to dismiss Counts 2 and 3 and agrees not to file
       additional charges resulting from the same facts and/or circumstances.
                                              2
Appellant’s Appendix at 43. The trial court accepted Peters’s plea of guilty and deferred

sentencing to allow him to participate in the drug court program.

        Throughout 2011 and into 2012, Peters appeared regularly in drug court for status

hearings. In early 2012, a notice of intent to terminate Peters from the drug court

program was filed with the trial court, alleging that he had failed to comply with the rules

of the program by: 1) having a confirmed positive urine drug screen; 2) being evicted

from the Kokomo Rescue Mission; 3) lying about his attendance at GED classes; and 4)

using a cell phone without authorization. See id. at 47, 48. Following a fact-finding

hearing, Peters’s participation in the drug court program was terminated. At the ensuing

sentencing hearing, the trial court, finding Peters’s prior criminal history and the fact he

violated probation by committing this offense were aggravating factors and finding no

mitigating factors, sentenced him to fifteen years at the Department of Correction.

                                         Discussion and Decision

                                          I. Standard of Review1

        This court has the authority to revise a sentence “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). In

assessing the nature of the offense and the character of the offender, we may look to any

factors appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct. App.

2007), trans. denied. The burden is on the defendant to persuade us that his sentence is

inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
        1
             Although Peters includes in his brief the standard for reviewing a sentence for an abuse of the trial
court’s discretion, his argument is directed only at the nature of his offense and his character, and we likewise
restrict our discussion to whether his sentence is inappropriate.
                                                        3
                                    II. Peters’s Sentence

       Peters was convicted of a Class B felony, the sentence for which ranges from six

to twenty years with an advisory sentence of ten years. See Ind. Code § 35-50-2-5. The

trial court sentenced him to fifteen years.

       As to the nature of his offense, Peters argues that his crime, while “not acceptable

under Indiana law,” Appellant’s Brief at 4, did not cause physical injury or pecuniary loss

and did not involve a victim. Although we agree the crime is not particularly heinous, as

it was an agreement to manufacture methamphetamine which did not come to fruition, we

do note that Peters was not only planning to manufacture approximately eight grams of

an illegal and insidious drug, he was also planning to teach someone else the

manufacturing process.

       As to his character, Peters notes that he is thirty-two years old, that he developed a

substance abuse problem at an early age, and that his criminal history stems from his drug

dependency. The trial court found his criminal history to be an aggravating factor in

determining his sentence. The significance of a criminal history “varies based on the

gravity, nature and number of prior offenses as they relate to the current offense.”

Wooley v. State, 716 N.E.2d 919, 929 n.4 (Ind. 1999). Peters, at thirty-two years of age,

has accumulated six misdemeanor and four felony convictions.              His most recent

convictions prior to this offense also involved drug activity. He has repeatedly failed to

comply with the conditions of probation and other opportunities for rehabilitation short of

incarceration. He also failed to obtain his GED as a condition of his probation in 1998,

which was again a condition of his participation in drug court for this arrest and which he

again failed to do. Peters may have a substance abuse problem which has led to poor
                                              4
decision-making, but he has demonstrated no interest in overcoming his addiction, as one

of the reasons he was terminated from the drug court program was his use of marijuana

nearly a year after entering the program. In short, we agree with the trial court that

Peters’s character as illuminated by his past actions and inactions warrants an enhanced

and executed sentence.

                                         Conclusion

       Given Peters’s criminal history and repeated disregard for rehabilitative

opportunities offered to him, we conclude that Peters has not demonstrated his fifteen-

year sentence is inappropriate in light of the nature of his offense and his character. The

trial court’s sentencing order is affirmed.

       Affirmed.

MAY, J., and PYLE, J., concur.




                                              5
