MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                           Sep 24 2019, 9:29 am
court except for the purpose of establishing
                                                                        CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
estoppel, or the law of the case.                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael P. DeArmitt                                      Curtis T. Hill, Jr.
Columbus, Indiana                                        Attorney General of Indiana

                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dwayne D. Skinner,                                       September 24, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-606
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable James D. Worton,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         03D01-1803-F4-1518



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-606 | September 24, 2019           Page 1 of 7
[1]   Dwayne D. Skinner appeals following his conviction of Level 5 felony dealing

      in methamphetamine. 1 Skinner argues he should serve his sentence on

      probation rather than in prison. We affirm.



                                Facts and Procedural History
[2]   In March 2017, police worked with a confidential informant (“CI”) to gain

      information on a person of interest that the police believed was dealing in

      methamphetamine. The police used the CI to conduct a controlled buy of

      methamphetamine. At the deal, the CI and the person of interest met with

      Skinner, who provided the methamphetamine. On March 28, 2018, the State

      charged Skinner with Level 4 felony dealing in methamphetamine. 2 At the time

      Skinner was charged, he was on probation for a conviction of Level 6 felony

      unlawful possession of a syringe.3 On January 14, 2019, Skinner pled guilty to a

      lesser charge of Level 5 felony dealing in methamphetamine. As a part of the

      plea deal, the State agreed to dismiss their petition to revoke Skinner’s

      probation in the possession of a syringe cause. Under the plea agreement,

      sentencing was left to the trial court’s discretion. The trial court sentenced

      Skinner to five years executed.




      1
          Ind. Code § 35-48-4-1.1(a) (2017).
      2
          Ind. Code § 35-48-4-1.1(c) (2017).
      3
          Ind. Code § 16-42-19-18(a)(1) (2015).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-606 | September 24, 2019   Page 2 of 7
                                 Discussion and Decision
[3]   Skinner argues his sentence is inappropriate in light of his character and the

      nature of his offense. Our standard of review on this issue is well settled.


              We “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).
              “Although appellate review of sentences must give due
              consideration to the trial court’s sentence because of the special
              expertise of the trial bench in making sentencing decisions,
              Appellate Rule 7(B) is an authorization to revise sentences when
              certain broad conditions are satisfied.” Shouse v. State, 849
              N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and
              quotation marks omitted). “[W]hether we regard a sentence as
              appropriate at the end of the day turns 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.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
              In addition to the “due consideration” we are required to give to
              the trial court’s sentencing decision, “we understand and
              recognize the unique perspective a trial court brings to its
              sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873
              (Ind. Ct. App. 2007).


      Couch v. State, 977 N.E.2d 1013, 1017 (Ind. Ct. App. 2012), reh’g denied, trans.

      denied. The appellant bears the burden of demonstrating his sentence is

      inappropriate. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011),

      trans. denied.


[4]   Skinner does not challenge the length of his sentence. Instead he challenges the

      trial court’s decision to order his sentence to be executed in the Department of
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-606 | September 24, 2019   Page 3 of 7
      Correction (“DOC”). “The place that a sentence is to be served is an

      appropriate focus for application of our review and revise authority.” Biddinger

      v. State, 868 N.E.2d 407, 414 (Ind. 2007). However, it is “quite difficult for a

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

      inappropriate.” Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct. App. 2007). As

      we explained in Fonner:


              As a practical matter, trial courts know the feasibility of
              alternative placements in particular counties or communities.
              For example, a trial court is aware of the availability, costs, and
              entrance requirements of community corrections placements in a
              specific locale. 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. A
              defendant challenging the placement of a sentence must convince
              us that the given placement is itself inappropriate.


      Id. at 343-4.


[5]   When considering the nature of the offense, the advisory sentence is the starting

      point for determining the appropriateness of a sentence. Anglemyer v. State, 868

      N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). A

      Level 5 felony is punishable by a fixed term between one and six years, with the

      advisory sentence being three years. Ind. Code § 35-50-2-6(b) (2014). The trial

      court sentenced Skinner to five years; thus, he received above the advisory

      sentence, but below the maximum. The trial court found nothing extraordinary

      regarding the nature of Skinner’s offense. We agree and turn to Skinner’s

      character.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-606 | September 24, 2019   Page 4 of 7
[6]   Skinner believes his character warrants him the opportunity to serve his

      sentence in a community corrections program or on probation because he no

      longer uses methamphetamines, he was baptized, and he was willing to be

      admitted into a substance abuse program while he was awaiting sentencing.4

      Skinner argues the facts of his case are similar to those in Livingston v. State, 113

      N.E.3d 611, 614 (Ind. 2018), and thus we should follow Livingston and order

      him to serve his sentence somewhere outside the Department of Correction.


[7]   In Livingston, the Indiana Supreme Court decided Livingston’s aggregate thirty-

      year sentence for two counts of Class A felony dealing in methamphetamine,5

      and one count each of Class C felony possession of methamphetamine,6 Class

      D felony possession of cocaine,7 and Class D felony possession of two or more

      chemical agents or precursors with the intent to manufacture a controlled

      substance8 was inappropriate in light of the nature of her offense and her

      character. The Court reduced Livingston’s sentence to the statutory minimum

      and ordered the remainder of her time be served in community corrections. In

      doing so, the Court acknowledged “unique circumstances” regarding




      4
       Skinner was denied entrance into the program but entered the Family Recovery Court program with the
      ultimate goal of rehabilitation and reunification with his daughters. (Appellant’s Br. at 13.) The trial court
      acknowledged Skinner’s participation in the Family Recovery Court.
      5
          Ind. Code § 35-48-4-1.1(b) (2006).
      6
          Ind. Code § 35-48-4-6.1(b)(1) (2006).
      7
          Ind. Code § 35-48-4-6(b) (2006).
      8
          Ind. Code § 35-48-4-14.5(a) (2013).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-606 | September 24, 2019                    Page 5 of 7
      Livingston’s character. Id. The court listed a number of factors that led it to

      reduce and adjust Livingston’s sentence, including: Livingston’s commitment to

      avoiding any criminal activity after her arrest five years prior to the Livingston

      decision, Livingston becoming a productive member of her community,

      Livingston’s work assisting others who suffer with addiction, and the

      willingness of the Floyd County Community Corrections program to supervise

      Livingston. Id.


[8]   Despite Skinner’s professed eagerness to seek sobriety and rehabilitation,

      Skinner’s history demonstrates probation and rehabilitation programs do not

      work for him. Skinner has an extensive criminal history with multiple charges

      involving controlled substances dating back to 2003. Skinner has been placed

      on probation multiple times and has had several petitions to revoke his

      probation filed against him. Additionally, Skinner has had several

      opportunities outside of prison to seek rehabilitation but has not been

      successfully rehabilitated, and Skinner was on probation when he was charged

      with this current offense. Skinner’s character is not remotely similar to

      Livingston’s, and therefore we reject Skinner’s assertion that Livingston supports

      finding his placement in the DOC inappropriate.


[9]   Skinner’s criminal history and the multiple petitions filed to revoke his

      probations demonstrate his inability to rehabilitate when placed in less

      restrictive supervision. Accordingly, we cannot conclude his sentence in the

      DOC is inappropriate. See Fonner, 876 N.E.2d at 344 (placement in the DOC



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-606 | September 24, 2019   Page 6 of 7
       not inappropriate when prior, less restrictive efforts at rehabilitation have been

       unsuccessful).



                                               Conclusion
[10]   Skinner has not carried his burden of persuading us that the amount of time

       ordered executed in the DOC is inappropriate based upon both his character

       and the nature of the offense he committed. Accordingly, we affirm.


[11]   Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-606 | September 24, 2019   Page 7 of 7
