MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),                                Apr 12 2017, 10:32 am
this Memorandum Decision shall not be                                      CLERK
regarded as precedent or cited before any                              Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court
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
Nicholas A. Siler                                        Curtis T. Hill, Jr.
West Baden Springs, Indiana                              Attorney General of Indiana

                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

John Paul Jones,                                         April 12, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         51A04-1606-CR-1420
        v.                                               Appeal from the Martin Circuit
                                                         Court
State of Indiana,                                        The Honorable Lynne E. Ellis,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         51C01-1507-F5-111



Altice, Judge.


                                          Case Summary


Court of Appeals of Indiana | Memorandum Decision 51A04-1606-CR-1420 | April 12, 2017          Page 1 of 8
[1]   John Paul Jones pled guilty to dealing in methamphetamine, a Level 5 felony,

      and was sentenced to four years in prison with one year suspended to

      probation. On appeal, Jones challenges his sentence in two respects: 1) Jones

      contends that the trial court abused its sentencing discretion and 2) he claims

      his sentence is inappropriate.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On July 20, 2015, the State charged Jones with Level 5 felony dealing in

      methamphetamine (Count I), Level 6 felony maintaining a common nuisance

      (Count II), Level 6 felony possession of methamphetamine (Count III), Level 6

      felony possession of chemical reagents or precursors with intent to manufacture

      a controlled substance (Count IV), and Class C misdemeanor possession of

      paraphernalia (Count V). After entering into a plea agreement with the State,

      Jones pled guilty to Count I. In exchange, the State dismissed the remaining

      charges and agreed to a sentencing cap of four years in prison. The trial court

      accepted the plea agreement on December 1, 2015. Shortly thereafter, a

      presentence investigation report (PSI) was filed with the trial court.


[4]   After several delays occasioned by Jones, including a change of counsel, Jones

      reaffirmed his guilty plea at a hearing on May 2, 2016. The trial court then

      directed Jones to review the previously filed PSI with his new counsel to

      determine if he wanted to make any additions or changes. In this regard, the

      court noted that it would like “a better idea as it relates to sentencing because

      Court of Appeals of Indiana | Memorandum Decision 51A04-1606-CR-1420 | April 12, 2017   Page 2 of 8
      [the PSI] was kind of a no answer PSI.” Transcript at 45. An amended PSI was

      filed on May 13, 2016. Although he made some modifications, Jones

      continued to report that he had never used illegal drugs and that he was set up

      by a cousin with respect to the instant offense.


[5]   At the sentencing hearing on May 16, 2016, Jones testified that everything in

      the amended PSI was correct. On cross examination, however, he admitted

      that he had a problem with methamphetamine use and that he had previously

      lied to the probation officer in this regard. Still Jones downplayed his use of the

      drug, testifying that he used methamphetamine only about thirteen times over a

      two-year period. Additionally, on re-direct, Jones acknowledged that even

      though he believed he was set up, he did engage in the illegal activity. At the

      conclusion of the sentencing hearing, defense counsel asked that the court

      impose a two-year sentence followed by probation, with a recommendation of

      purposeful incarceration.


[6]   The trial court imposed a four-year prison sentence with one year suspended to

      probation. The court also entered a recommendation of purposeful

      incarceration. Jones appeals from the sentence imposed. Additional facts will

      be provided below as needed.


                                          Discussion & Decision


                                           1. Abuse of Discretion




      Court of Appeals of Indiana | Memorandum Decision 51A04-1606-CR-1420 | April 12, 2017   Page 3 of 8
[7]   Sentencing decisions rest within the sound discretion of the trial court.

      Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

      218. “An abuse of discretion occurs if the 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. at 490 (quoting

      K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). A trial court may abuse its

      sentencing discretion in a number of ways, including: (1) failing to enter a

      sentencing statement at all; (2) entering a sentencing statement that includes

      aggravating and mitigating factors that are unsupported by the record; (3)

      entering a sentencing statement that omits reasons that are clearly supported by

      the record; or (4) entering a sentencing statement that includes reasons that are

      improper as a matter of law. Id. at 490-91. Because trial courts are no longer

      obligated to weigh aggravating and mitigating factors when imposing a

      sentence, a trial court cannot be said to have abused its discretion in failing to

      properly weigh such factors. Id. at 491.


[8]   Jones’s first argument heading asserts that the trial court “abused its discretion

      in issuing the maximum sentence under the terms of the plea agreement, albeit

      with one year suspended, and was not commensurate with the offense and the

      Defendant’s criminal history.” Appellant’s Brief at 9. The totality of his

      argument follows:

              While the Court took into a account [sic] a light prior criminal
              record as a mitigating circumstance, it improperly balanced that
              out against that he did not have a stable home if was [sic]
              released and did not know the names of persons who could

      Court of Appeals of Indiana | Memorandum Decision 51A04-1606-CR-1420 | April 12, 2017   Page 4 of 8
               provide him with a residence. However, he gave the name “Pee
               Wee Jacob Tussey,” as a person from whom he may be able to
               secure housing, near the river in Shoals.


       Id.


[9]    We find his brief argument difficult to decipher. To the extent Jones is asserting

       that the trial court weighed the factors improperly, this argument is not

       available on appeal. See Anglemyer, 868 N.E.2d at 491.


[10]   Jones might also be arguing that the court’s finding regarding his housing

       instability is not supported by the evidence. On the contrary, the record amply

       supports a finding that Jones had made no plans for housing upon his release to

       probation. Other than his co-defendant son, Jones reported having no friends

       and no contact with family members. He had been determined to be ineligible

       for the community corrections program due to his lack of employment and

       housing. Although he claimed at the sentencing hearing to have two available

       housing options, his testimony made clear that he had not established any

       arrangements with these individuals. He simply planned to talk with one of

       them upon his release. Jones has failed to establish an abuse of discretion.


                                              2. Appropriateness


[11]   Jones next argues that his sentence is inappropriate in light of his character and

       the nature of his offense. Although a trial court may have acted within its

       lawful discretion in imposing a sentence, Article 7, Sections 4 and 6 of the

       Indiana Constitution authorize independent appellate review and revision of a

       Court of Appeals of Indiana | Memorandum Decision 51A04-1606-CR-1420 | April 12, 2017   Page 5 of 8
       sentence imposed by the trial court. Alvies v. State, 905 N.E.2d 57, 64 (Ind. Ct.

       App. 2009) (citing Anglemyer, 868 N.E.2d at 491). This appellate authority is

       implemented through Indiana Appellate Rule 7(B), which provides that a court

       “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.” Anglemyer, 868

       N.E.2d at 491. Nevertheless, “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 appellant bears the

       burden of persuading us that his sentence is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).


[12]   The determination of whether we regard a sentence as inappropriate “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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008)). “The principal role of such review is

       to attempt to leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259

       (Ind. 2013). It is not our goal in this endeavor to achieve the perceived

       “correct” sentence in each case. Knapp v. State, 9 N.E.3d 1274, 1292 (Ind.

       2014). Accordingly, “the question under Appellate Rule 7(B) is not whether

       another sentence is more appropriate; rather, the question is whether the

       Court of Appeals of Indiana | Memorandum Decision 51A04-1606-CR-1420 | April 12, 2017   Page 6 of 8
       sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct.

       App. 2008) (emphasis in original).


[13]   To assess the appropriateness of a sentence, we look first to the statutory range

       established for the classification of the relevant offense. A Level 5 felony has a

       sentencing range of one to six years, with the advisory sentence being three

       years. Ind. Code § 35-50-2-6. Jones received a four-year sentence with one of

       those years suspended to probation. Thus, his sentence was not far from the

       advisory sentence.


[14]   With respect to the nature of the offense, Jones simply asserts that he had “a

       ‘one pot’ methamphetamine manufacture in his residence.” Appellant’s Brief at

       10. But there was more. The probable cause affidavit attached to the PSI

       reveals that in addition to the lab, police found multiple precursors throughout

       the mobile home, as well as two smoking devices and aluminum foil with burnt

       residue. Further, Jones’s co-defendant was his own adult son. Although Jones

       pled guilty, he continued to complain that he was set up by his cousin. He also

       obtained a favorable sentencing cap in exchange for his plea, as well as

       dismissal of several additional counts.


[15]   Turning to Jones’s character, we find significant – as did the trial court – his

       denial of ever using illegal drugs until he finally admitted such use when

       questioned by the State. Even then, he only acknowledged using

       methamphetamine thirteen times in the two years leading up to his arrest.

       Under the circumstances, his recent claim of wanting help with his drug


       Court of Appeals of Indiana | Memorandum Decision 51A04-1606-CR-1420 | April 12, 2017   Page 7 of 8
       problem rings hollow. Additionally, at the age of fifty-three, Jones lacks

       employment and stable housing and has no relationship with his siblings, his

       grandchildren, or four of his five children – the exception being his co-

       defendant son with whom he was living at the time of the offense. On a

       positive note, we do recognize Jones’s limited criminal history.


[16]   Jones has not shown that his four-year sentence with one year suspended to

       probation is inappropriate. We, therefore, affirm the sentence imposed.


[17]   Judgment affirmed.


       Kirsch, J. and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 51A04-1606-CR-1420 | April 12, 2017   Page 8 of 8
