MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                              May 29 2020, 10:51 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Donald C. Swanson                                        Matthew B. MacKenzie
Haller & Colvin, P.C.                                    Deputy Attorney General
Fort Wayne, Indiana                                      Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Ted E. Geisleman,                                        May 29, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-4
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D05-1712-F3-77



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-4 | May 29, 2020                       Page 1 of 9
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Ted E. Geisleman (Geisleman), appeals the trial court’s

      sentence following his guilty plea to dealing in cocaine, a Level 3 felony, Ind.

      Code § 35-48-4-1(a)(2); three Counts of dealing in cocaine, Level 4 felonies, I.C.

      § 35-48-4-1(a)(1); dealing in a narcotic drug, a Level 5 felony, I.C. § 35-48-4-

      1(a)(1); operating a motor vehicle after a lifetime suspension, a Level 5 felony,

      I.C. § 9-30-10-17(a)(1); maintaining a common nuisance, a Level 6 felony, I.C.

      § 35-48-1-5(c); possession of marijuana, a Class B misdemeanor, I.C. § 35-48-4-

      11(a)(1); and possession of paraphernalia, a Class C misdemeanor, I.C. § 35-48-

      8.3(b)(1).


[2]   We affirm.


                                                   ISSUES
[3]   Geisleman presents two issues on appeal, which we restate as:


          (1) Whether the trial court abused its discretion by failing to properly

              recognize certain mitigating circumstances; and

          (2) Whether Geisleman’s sentence is inappropriate in light of his character

              and the nature of the offenses.


                      FACTS AND PROCEDURAL HISTORY
[4]   During November and December 2017, Geisleman sold drugs on six different

      occasions to a confidential informant. On December 28, 2017, as a result of

      these undercover buys, the State filed an Information, charging Geisleman with

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-4 | May 29, 2020   Page 2 of 9
      a Level 3 felony dealing in cocaine; three Level 4 felonies dealing in cocaine; a

      Level 5 felony dealing in a narcotic drug; a Level 5 felony operating a motor

      vehicle after a lifetime suspension, a Level 6 felony maintaining a common

      nuisance, a Class B misdemeanor possession of marijuana; and a Class C

      misdemeanor possession of paraphernalia. On February 18, 2018, Geisleman

      entered a plea agreement to all Counts, which provided him with an

      opportunity to participate in a Drug Court diversion program.


[5]   On September 23, 2019, the trial court terminated Geisleman from the

      diversion program. On December 5, 2019, the trial court conducted a

      sentencing hearing. During the hearing, Geisleman noted that he had made it

      to the third phase of the program before “he completely fell apart and these new

      offenses he had over in circuit court happened,” and that he did not “have a

      whole lot to add other than” briefly referring, without identifying or explaining,

      the application of certain mitigating factors that he had listed in two written

      sentencing memoranda submitted to the trial court. (Transcript pp. 4-5). In its

      review, the trial court identified two mitigating factors: (1) Geisleman’s guilty

      plea, and (2) his expressed remorse. Contrary to his claim that he did not harm

      the community, the trial court noted that he was selling drugs and therefore was

      “poisoning members of our community.” (Tr. p. 7). The court further

      observed Geisleman’s lengthy criminal history and the likelihood that he would

      not respond positively to probation. Given that he was charged with a new

      offense, the trial court stated that Geisleman’s attitude and character reveal that

      he is likely to commit another crime. The trial court found as additional


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-4 | May 29, 2020   Page 3 of 9
      aggravating factors: (1) prior failed efforts at rehabilitation, and (2) the nature

      and circumstances of the crimes. At the conclusion of the hearing, the trial

      court imposed twelve years on the Level 3 felony; ten years each on the Level 4

      felonies; five years each on the Level 5 and Level 6 felonies;180 days on the

      Class B misdemeanor, and sixty days on the Class C misdemeanor, for a total

      term of 57 years and 240 days. All Counts were ordered to be served

      concurrently, resulting in a twelve-year sentence at the Department of

      Correction.


[6]   Geisleman now appeals. Additional facts will be provided if necessary.


                              DISCUSSION AND DECISION
                                        I. Mitigating Circumstances


[7]   Geisleman contends that the trial court abused its discretion when it failed to

      identify certain mitigating factors. So long as a sentence imposed by a trial

      court is within the statutory range for the offense, it is subject to review only for

      an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),

      clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of the trial court’s

      sentencing discretion occurs if its decision is clearly against the logic and effect

      of the facts and circumstances before the court, or the reasonable, probable, and

      actual deductions to be drawn therefrom. Id. A trial court abuses its discretion

      when it fails to enter a sentencing statement at all, its stated reasons for

      imposing sentence are not supported by the record, its sentencing statement

      omits reasons that are clearly supported by the record and advanced for

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-4 | May 29, 2020      Page 4 of 9
      consideration, or its reasons for imposing sentence are improper as a matter of

      law. Id. at 490-91.


[8]   Geisleman now contends that the trial court abused its discretion when it failed

      to properly recognize the mitigating circumstances proposed in the two written

      sentencing memoranda he had submitted to the trial court prior to the

      sentencing hearing. We remind Geisleman that “[i]t is the appellant’s duty to

      provide the reviewing court with an adequate record for review.” Johnson v.

      State, 747 N.E.2d 623, 627 (Ind. Ct. App. 2001). As such, Indiana Appellate

      Rule 50(B)(1) provides that the appellant’s appendix “shall contain a table of

      contents and copies of the following documents, if they exist: . . . (e) any record

      material relied on in the brief unless the material is already included in the

      transcript[.]” Geisleman did not include the two sentencing memoranda in his

      appellate appendix.


[9]   As Geisleman did not advance the mitigating factors for consideration on the

      record but merely requested the trial court to consider the two memoranda that

      had been filed, these documents are necessary for this court to evaluate

      Geisleman’s claim. The record indicates that on February 17, 2020, the State

      filed a motion for conforming appendix, informing this court that Geisleman’s

      appendix did not include the two sentencing memoranda. Geisleman objected

      to the State’s motion, asserting that he was only required to provide appendices

      containing information from the record on appeal that are “necessary and

      relevant to the issues on appeal,” and that he raised only two issues, “none of

      which have to do with evidence presented at the hearing.” (Def. motion Feb.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-4 | May 29, 2020   Page 5 of 9
       28, 2020). In response to the parties’ motions, we observed in our March 4,

       2020 order, that “an Appellant who fails to include the materials necessary for

       this [c]ourt’s review risks waiver of the affected issues or dismissal of the

       appeal.” (Crt. Order March 4, 2020). Accordingly, as a result of failing to

       provide the only portion of the record enumerating Geisleman’s proposed

       mitigating circumstances, we are unable to consider his claim and we conclude

       that he has waived appellate review. See, e.g., Nasser v. State, 727 N.E.2d 1105,

       1110 (Ind. Ct. App. 2000) (finding that appellant waived sentencing argument

       because he failed to include the pre-sentence report in the record).


                                       II. Inappropriateness of Sentence

[10]   Geisleman also requests that we independently review the appropriateness of

       his sentence. “Even when a trial court imposes a sentence within its discretion,

       the Indiana Constitution authorizes independent appellate review and revision

       of this sentencing decision.” Hoak v. State, 113 N.E.3d 1209, 1209 (Ind. 2019).

       Thus, we may alter a sentence if, after due consideration of the trial court’s

       decision, we find that the sentence is inappropriate in light of the nature of the

       offense and the character of the offender. Id. The principal role of such review

       is to attempt to leaven the outliers. Cardwell v. State, 895 N.E.2d 1219, 1225

       (Ind. 2008). The defendant bears the burden to persuade the reviewing court

       that the sentence imposed is inappropriate. Robinson v. State, 91 N.E.3d 574,

       577 (Ind. 2018).


[11]   In considering the appropriateness of a sentence, we recognize the advisory

       sentence is the starting point the Legislature selected as appropriate for the

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-4 | May 29, 2020   Page 6 of 9
       crime committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). Geisleman

       was sentenced to a total term of 57 years and 240 days. This aggregate term is

       composed of a bevy of concurrent sentences, not one of which was a maximum

       sentence for its particular Level of offense. Specifically, the trial court ordered

       all Counts to be served concurrently, resulting in a twelve-year sentence at the

       Department of Correction. Geisleman now requests this court to decrease his

       sentence to the minimum aggregate sentence of three years. We decline to do

       so.


[12]   With respect to the nature of the crimes, we do not turn a blind eye to “facts of

       the incident that brought the defendant before” us or the “nature and

       circumstances of the crime as well as the manner in which the crime is

       committed.” Bethea v. State, 893 N.E.2d 1134, 1145 (Ind. 2013). Geisleman

       flooded the community with illegal drugs and sold narcotics to a confidential

       information for a profit on at least six different occasions. See Evans v. State, 725

       N.E. 2d 850, 851 (Ind. 2000) (holding that purveyors of illegal drugs are “a

       menace to society,” and as such acknowledged by the legislature by classifying

       those offenses as serious felonies).


[13]   Likewise, Geisleman’s character does not warrant a downward revision of his

       sentence. A defendant’s willingness to continue committing crimes is relevant

       for analysis of his character under Appellate Rule 7(B). Garcia v. State, 47 N.E.

       3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied. Geisleman has a significant

       criminal history spanning almost three decades, from 1990 to 2019, and

       involving juvenile, misdemeanor, and felony offenses. His juvenile history

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-4 | May 29, 2020   Page 7 of 9
       included adjudications for, among others, possession of paraphernalia and

       possession of marijuana; while his adult history includes charges for, among

       others, burglary, battery, resisting law enforcement, and being a habitual traffic

       violator. As the trial court noted during sentencing:


               [Geisleman] had three adjudications as a juvenile with time in
               the Wood Youth Center. [He] has been given short jail
               sentences, intermediate jail sentences, and longer jail sentences.
               [He] has been assessed fines and costs. [He] has been through
               the Center for Non-Violence. [He] had time in the Department
               of Correction. [He] has been on active adult probation. [He] had
               home detention. [He] had the benefit of suspended sentences,
               time through the Alcohol Abuse Deterrent Program. [He] has
               been on parole. [He] has been through Criminal Division
               Services. [He] had multiple attempts at substance abuse
               treatment through the system, and ultimately, the Drug Court
               Program.


       (Tr. p. 8). He repeatedly failed to take advantage of rehabilitative programs,

       and he did not respond positively to probation. While participating in the Drug

       Court program, Geisleman committed a new offense. Geisleman has not

       shown that his character, as evidenced by his criminal history and probation

       violations, warrants the minimum sentence that he requested. Therefore, in

       light of the facts before us, we conclude that trial court’s imposed sentence is

       not inappropriate.


                                            CONCLUSIONS
[14]   Based on the foregoing, we hold that Geisleman’s sentence is not inappropriate

       in light of the offense and his character.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-4 | May 29, 2020   Page 8 of 9
[15]   Affirmed.


[16]   Mathias, J. and Tavitas, J. concur




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-4 | May 29, 2020   Page 9 of 9
