                                                                               FILED
                                                                          May 03 2018, 8:28 am

MEMORANDUM DECISION                                                            CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court
Pursuant to Ind. Appellate Rule 65(D), this
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
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

James A. Geyman, Jr.,                                    May 3, 2018

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         39A05-1709-CR-2200
        v.                                               Appeal from the Jefferson Circuit
                                                         Court.
                                                         The Honorable Darrell M. Auxier,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         39C01-1611-F3-1022




Friedlander, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 39A05-1709-CR-2200 | May 3, 2018                 Page 1 of 6
[1]   James Geyman appeals the sentence he received for his conviction of Level 4
                                                         1
      felony possession of methamphetamine. We affirm.


[2]   Geyman presents one issue for our review, which we restate as: whether

      Geyman’s sentence is inappropriate in light of the nature of the offense and his

      character.


[3]   During a community corrections home visit in November 2016, officers found

      methamphetamine in Geyman’s bedroom. Based upon this incident, Geyman

      was charged with possession of methamphetamine as a Level 3 felony.

      Pursuant to a plea agreement, Geyman subsequently pleaded guilty to Level 4

      felony possession of methamphetamine and admitted to violating his probation

      in 39C01-1512-F6-1230 (“F6-1230”) and 39C01-1605-F6-478 (“F6-478”). In

      exchange for his plea and admission, the State agreed to dismiss any other

      pending charges in the current case as well as all counts in 39C01-1612-CM-

      1150 (“CM-1150”). The parties left sentencing to the trial court but agreed to a

      cap of nine years on the total sentence for the current case as well as any time

      imposed for Geyman’s violation of his probation in causes F6-1230 and F6-478.

      The court sentenced Geyman to six years executed. He now appeals.


[4]   Although a trial court may have acted within its lawful discretion in imposing a

      sentence, article VII, sections 4 and 6 of the Indiana Constitution authorize

      independent appellate review and revision of sentences through Indiana



      1
          Ind. Code § 35-48-4-6.1 (2014).


      Court of Appeals of Indiana | Memorandum Decision 39A05-1709-CR-2200 | May 3, 2018   Page 2 of 6
      Appellate Rule 7(B), which provides that we may revise a sentence authorized

      by statute if, after due consideration of the trial court’s decision, we determine

      that the sentence is inappropriate in light of the nature of the offense and the

      character of the offender. Thompson v. State, 5 N.E.3d 383 (Ind. Ct. App. 2014).

      However, “we must and should exercise deference to a trial court’s sentencing

      decision, both because Rule 7(B) requires us to give ‘due consideration’ to that

      decision and because we understand and recognize the unique perspective a

      trial court brings to its sentencing decisions.” Stewart v. State, 866 N.E.2d 858,

      866 (Ind. Ct. App. 2007). The principal role of appellate review under Rule

      7(B) is to attempt to leaven the outliers, not to achieve a perceived “correct”

      result in each case. Garner v. State, 7 N.E.3d 1012 (Ind. Ct. App. 2014). In

      other words, 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. King v. State, 894 N.E.2d 265 (Ind. Ct. App. 2008).

      The defendant bears the burden of persuading the appellate court that his or her

      sentence is inappropriate. Childress v. State, 848 N.E.2d 1073 (Ind. 2006).


[5]   To assess whether the sentence is inappropriate, we look first to the statutory

      range established for the class of the offense. Here, the offense is a Level 4

      felony, for which the advisory sentence is six years, with a minimum sentence

      of two years and a maximum sentence of twelve years. Ind. Code § 35-50-2-5.5

      (2014). Geyman was sentenced to the advisory term of six years.


[6]   Next, we look to the nature of the offense and the character of the offender. As

      to the nature of the current offense, we note that Geyman, while on probation

      Court of Appeals of Indiana | Memorandum Decision 39A05-1709-CR-2200 | May 3, 2018   Page 3 of 6
      for other drug offenses, was in possession of at least ten grams of

      methamphetamine. Moreover, while his prior offenses were Level 6 felonies,

      his current offense was charged as a Level 3 felony, indicating an escalation in

      the nature of his criminal activity.


[7]   With regard to the character of the offender, we observe that Geyman’s

      criminal history, although spanning only one short year, is noteworthy. Just

      prior to committing this offense in November 2016, Geyman was convicted of

      Level 6 felony possession of methamphetamine in F6-1230 and Level 6 felony

      possession of methamphetamine in F6-478 in July 2016. The significance of a

      criminal history in assessing a defendant’s character and an appropriate

      sentence varies based on the gravity, nature, and proximity of prior offenses in

      relation to the current offense, as well as the number of prior offenses.

      Sandleben v. State, 29 N.E.3d 126 (Ind. Ct. App. 2015), trans. denied. In

      summary, Geyman has two prior Level 6 felony convictions, both of which

      arise from his possession of methamphetamine—the same offense here—and all

      of which occurred within the span of a single year.


[8]   In addition, Geyman was on probation at the time he committed the current

      offense. He had been given suspended sentences for his convictions in F6-1230

      and F6-478 and was placed on supervised probation. He was serving these

      terms of probation when he committed the current offense. The defendant’s

      commission of a further offense while on probation is a “substantial

      consideration” in our assessment of his character. Rich v. State, 890 N.E.2d 44,

      54 (Ind. Ct. App. 2008), trans. denied; see also Ind. Code § 35-38-1-7.1(a)(6)

      Court of Appeals of Indiana | Memorandum Decision 39A05-1709-CR-2200 | May 3, 2018   Page 4 of 6
       (2015) (stating that, in determining a defendant’s sentence, court may consider

       fact that defendant recently violated conditions of probation as aggravating

       circumstance).


[9]    We also note that, in its sentencing order, the trial court remarked that Geyman

       was on probation when he committed this offense, indicating he is not likely to

       respond affirmatively to an additional probationary period; the current offense

       involved a large amount of methamphetamine; Geyman had not accepted

       responsibility because, after giving a factual basis for the offense and pleading

       guilty, he subsequently claimed at his sentencing hearing to have no knowledge

       of the existence of the methamphetamine; and Geyman had ample opportunity

       to receive substance abuse treatment but did not avail himself of those

       opportunities.


[10]   Indeed, while Geyman was aware of his methamphetamine addiction following

       his conviction of not one but two Level 6 felonies in July 2016, he chose not to

       seek treatment, although having agreed and being court-ordered to do so. See

       Caraway v. State, 959 N.E.2d 847 (Ind. Ct. App. 2011) (where defendant is

       aware of chemical dependency and chooses not to seek help, failure to do so

       can be considered aggravating factor), trans. denied.


[11]   For the reasons stated, we conclude that Geyman’s sentence is not

       inappropriate given the nature of the offense and his character.


[12]   Judgment affirmed.



       Court of Appeals of Indiana | Memorandum Decision 39A05-1709-CR-2200 | May 3, 2018   Page 5 of 6
Robb, J., and Pyle, J., concur.




Court of Appeals of Indiana | Memorandum Decision 39A05-1709-CR-2200 | May 3, 2018   Page 6 of 6
