MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                Dec 27 2018, 10:31 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                                  ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                      Curtis T. Hill, Jr.
Madison, Indiana                                        Attorney General of Indiana
                                                        Evan Matthew Comer
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brent Stephenson,                                       December 27, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1438
        v.                                              Appeal from the Dearborn
                                                        Superior Court
State of Indiana,                                       The Honorable Jonathan N.
Appellee-Plaintiff.                                     Cleary, Judge
                                                        Trial Court Cause No.
                                                        15D01-1709-F4-29



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1438 | December 27, 2018                 Page 1 of 9
                                                  Case Summary

[1]   Brent Stephenson appeals his sentence, received pursuant to his guilty plea for

      dealing in cocaine, a Level 4 felony. We affirm.


                                                          Issue

[2]   Stephenson raises one issue, which we restate as whether his sentence is

      inappropriate.


                                                         Facts

[3]   In March 2017, officers received information from a “concerned citizen” that

      Stephenson was involved in selling cocaine and marijuana. Tr. Vol. II p. 43.

      Detective Nick Beetz of the Lawrenceburg Police Department testified that

      officers began investigating Stephenson when they heard that he was “again

      involved in illegal drug activity.” Id. at 27. Officers were familiar with

      Stephenson based on previous encounters between February 14, 2011, and

      March 18, 2011, in which officers participated in several controlled buys with

      Stephenson. During that time, Stephenson also sold heroin to an individual

      who later died as a result of an overdose. 1


[4]   Officers continued to receive information about Stephenson’s activity selling

      narcotics through July 2017 from a confidential informant. Then, in August 28,




      1
        For this 2011 offense, Stephenson pled guilty to Count I, dealing in a narcotic drug, a Class B felony, and
      Count II, reckless homicide, a Class C felony, under Cause No. 15C01-1103-FA-4. Stephenson was
      sentenced to twenty years, with thirteen years suspended on Count I, and eight years with four years
      suspended on Count II. Stephenson was released from prison in March 2016.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1438 | December 27, 2018                   Page 2 of 9
      2017, officers responded to a domestic incident at Stephenson’s mother’s

      residence in Manchester. When officers arrived, Cynthia Dudley, Stephenson’s

      mother, and Michelle Dudley, Stephenson’s sister, were at the residence, but

      Stephenson had fled. Officers conducted a search of the residence and found

      drugs, drug paraphernalia, and an empty handgun box. The officers believed

      the items belonged to Stephenson. The following day, officers issued a

      charging information and charged Stephenson with Count I, possession of a

      firearm by a serious violent felon, a Level 4 felony; Count II, intimidation, a

      Level 5 felony; and Count III, pointing a firearm, a Level 6 felony. 2 Officers

      issued an arrest warrant for Stephenson and remained in contact with their

      informant who was providing information on Stephenson.


[5]   Officers made attempts to locate Stephenson with no success. Officers had

      reason to believe that Stephenson was aware of the warrant and that he was

      “laying low.” Id. at 42. On September 1, 2017, officers conducted a controlled

      purchase of one gram of cocaine from Stephenson in Lawrenceburg for $100.

      A confidential informant arranged the purchase with Stephenson via text

      message. When the confidential informant arrived to purchase the cocaine

      from Stephenson, Sandra Holland (“Sandra”) brought the cocaine out to the

      confidential informant wrapped up in a plastic bag that was inside a diaper.




      2
        On March 26, 2018, Stephenson pleaded guilty to an amended Count II, intimidation, a Level 5 felony
      under Cause No. 15C01-1708-F4-27. On this charge, Stephenson was sentenced to six years suspended to be
      served consecutive to the nine years imposed on his probation revocation sentence under Cause No. 15C01-
      1103-FA-4.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1438 | December 27, 2018             Page 3 of 9
      Sandra indicated that she got the drugs from Stephenson. Sandra and her

      husband, Ry Holland (“Ry”), were also both charged for offenses related to

      their involvement with the transaction. 3


[6]   After the transaction, officers observed Stephenson get into a van with Sandra

      and Ry. Officers initiated a traffic stop of the van. Stephenson fled from the

      van, and officers pursued him. Officers, with canine support, were ultimately

      able to capture Stephenson and took him into custody. The two fifty-dollar bills

      that the confidential informant gave to Sandra during the transaction were

      found in Stephenson’s wallet when Stephenson was taken into custody.

      Officers had written down the serial numbers of the two fifty-dollar bills they

      used in the transaction and were able to verify the bills were the same as those

      in Stephenson’s wallet. Officers also found a black backpack that belonged to

      Stephenson in Sandra and Ry’s home that contained multiple drug and drug

      paraphernalia items, including marijuana, a folded brown plastic bag, 4 two

      partial white round or oval tablets, and a glass pipe. One tablet tested positive

      for suboxone, and the other tested positive for buprenorphine.


[7]   Stephenson was charged with Count I, dealing in cocaine, a Level 5 felony;

      Count II, dealing in cocaine, a Level 4 felony; Count III, resisting law

      enforcement, a Class A misdemeanor; Count VII, possession of a narcotic drug,




      3
          Specific information regarding the charges of Sandra and Ry have been omitted from this opinion.
      4
          This plastic bag was the same type as the plastic bag in which the cocaine was delivered.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1438 | December 27, 2018                 Page 4 of 9
      a Level 6 felony; Count VIII, possession of a narcotic drug, a Level 5 felony;

      Count IX, possession of a controlled substance, a Class A misdemeanor; Count

      X, possession of a controlled substance, a Level 6 felony; Count XI, possession

      of marijuana less than thirty grams, a Class B misdemeanor; and Count XII,

      possession of paraphernalia, a Class C misdemeanor. 5 Stephenson pleaded

      guilty to an amended Count II, dealing in cocaine, a Level 4 felony, and all

      other counts were dismissed.


[8]   At sentencing, Stephenson testified regarding his extensive addiction history.

      Stephenson was prescribed ADHD medication as a child; and, after his release

      from “boy’s school,” began smoking marijuana. Id. at 51. Stephenson

      indicated that his drug addiction “kinda [sic] led from there.” Id. Stephenson

      admitted to using opiates in 2011 and continuous marijuana use after his release

      from prison. Stephenson stated that he “didn’t want to get back into heroin

      again,” so Stephenson went to the suboxone clinic until he could no longer

      afford it and began buying off the streets. Id.


[9]   The trial court sentenced Stephenson to eleven years executed. The trial court

      found as mitigating factors: (1) Stephenson’s guilty plea; (2) that Stephenson

      has a dependent son 6; and (3) that Stephenson expressed remorse. 7 The trial




      5
          The other counts in the charging information applied only to Sandra and Ry and have been omitted.
      6
          Stephenson’s son was one year old at the time of sentencing.
      7
       In finding this mitigator, the trial court said: “[B]ut the Court does note, that some of the statements today
      are in direct conflict to the jail recording played by the State.” Tr. Vol. II p. 66. During sentencing, the State
      produced video of Stephenson speaking with an unidentified female while in prison, saying first that his time

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1438 | December 27, 2018                      Page 5 of 9
       court found as aggravating factors: (1) that Stephenson was on probation when

       the felony was committed; and (2) Stephenson’s criminal history, which

       included two adjudications as a delinquent. Stephenson now appeals.


                                                        Analysis

[10]   Indiana Appellate Rule 7(B) provides that this court may revise a sentence

       authorized by statute 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.” The defendant bears the burden to persuade this

       court that his or her sentence is inappropriate. Wilson v. State, 966 N.E.2d 1259,

       1266 (Ind. Ct. App. 2012) (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

       2006)), trans. denied.


[11]   In Indiana, trial courts can tailor an appropriate sentence to the circumstances

       presented; the trial court’s judgment receives “considerable deference.” Sanders

       v. State, 71 N.E.3d 839, 844 (Ind. 2017) (quoting Cardwell v. State, 895 N.E.2d

       1219, 1222 (Ind. 2008)). In conducting our review, we do not look to see

       whether the defendant’s sentence is appropriate or “if another sentence might

       be more appropriate; rather, the question is whether the sentence imposed is

       inappropriate.” Sanders, 71 N.E.3d at 844 (citing King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008)).




       in prison goes by very quickly, and even when he is given five or six years, it feels like eighteen months to
       him. Stephenson also told the unidentified female that he had been selling drugs to provide for his son.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1438 | December 27, 2018                    Page 6 of 9
[12]   We look to the statutory ranges established for the classification of the offense.

       Stephenson pleaded guilty to an amended Count II, dealing in cocaine, a Level

       4 felony. The sentence for a Level 4 felony ranges from two years to twelve

       years, with an advisory sentence of six years. Here, the trial court imposed an

       eleven-year sentence.


[13]   We first review the nature of Stephenson’s offense. Stephenson pleaded guilty

       to dealing in cocaine, a Level 4 felony, after he sold cocaine to a confidential

       informant in a controlled buy. At the time of the controlled buy, Stephenson

       had a pending arrest warrant for his charges of possession of a firearm by a

       serious violent felon, a Level 4 felony; intimidation, a Level 5 felony; and

       pointing a firearm, a Level 6 felony, from a domestic incident that had taken

       place only a few days before the controlled buy. The evidence indicated that

       Stephenson was aware of these charges and was trying to avoid police.


[14]   Next, we consider Stephenson’s character. Stephenson’s criminal history does

       not reflect well upon his character. Stephenson was adjudicated twice as a

       delinquent for an act that would be considered theft if committed by an adult, a

       Class D felony, and an act that would be considered intimidation if committed

       by an adult, a Class D felony. According to Stephenson’s presentence

       investigation report, as an adult, Stephenson has been convicted of operating a

       motor vehicle without ever receiving a license, a Class C misdemeanor; illegal

       consumption of an alcoholic beverage, a Class C misdemeanor; illegal

       possession of an alcoholic beverage, a Class C misdemeanor; visiting a

       common nuisance, a Class B misdemeanor; dealing cocaine or narcotic drug

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1438 | December 27, 2018   Page 7 of 9
       within 1,000 feet of family housing complex, a Class B felony 8; reckless

       homicide, a Class C felony; maintaining a common nuisance, a Class D felony;

       intimidation, a Level 5 felony; and the instant offenses.


[15]   Finally, the State’s evidence regarding Stephenson’s conversation with the

       unidentified female in prison does not bode well for Stephenson’s character.

       Stephenson indicated in that conversation that serving five or six years in prison

       was not meaningful to him because it went by so quickly. In the conversation,

       Stephenson also discussed his perceived need to continue to sell drugs to

       provide for his son. As the trial court stated, “the desire, the plan, the amount

       of work that goes into dealing drugs . . . .if [Stephenson] would have put the

       same work into a legitimate job, [Stephenson] could have stayed out of

       incarceration, [Stephenson] could have supported his son . . . .” Tr. Vol. II p.

       69.


[16]   It appears that the trial court did not believe that sentencing Stephenson to the

       advisory sentence would help Stephenson understand the seriousness of his

       actions. This is especially true in light of the fact that Stephenson was again

       selling drugs just over one year after his release from prison for a transaction

       that ultimately resulted in a death caused by overdose. We acknowledge that

       the trial court did sentence Stephenson to the higher end of the sentencing range




       8
         The presentence investigation report indicates that Stephenson was convicted of a Class A felony; however,
       the negotiated plea agreement provided on appeal indicates that Stephenson pleaded guilty to a Class B
       felony.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1438 | December 27, 2018                Page 8 of 9
       for Stephenson’s offense, but Stephenson’s prior sentences have had no

       reformative effect on his behavior. We do not find this eleven-year sentence to

       be inappropriate in light of all the circumstances.


                                                  Conclusion

[17]   Stephenson failed to prove this sentence is inappropriate. We affirm.


       Affirmed.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1438 | December 27, 2018   Page 9 of 9
