                                                                             FILED
MEMORANDUM DECISION                                                     Mar 22 2017, 11:14 am

                                                                             CLERK
                                                                         Indiana Supreme Court
Pursuant to Ind. Appellate Rule 65(D), this                                 Court of Appeals
                                                                              and Tax Court
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.



ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
State Public Defender                                    Attorney General of Indiana
Indianapolis, Indiana
                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
Patricia Caress McMath
                                                         Indianapolis, Indiana
Indianapolis, Indiana

Stacy R. Uliana
Bargersville, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Austin J. Huffman,                                       March 22, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         76A03-1609-CR-2186
        v.                                               Appeal from the Steuben Circuit
                                                         Court.
                                                         The Honorable Allen N. Wheat,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Trial Court Cause No. 76C01-1602-
                                                         F6-94




Sharpnack, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 76A03-1609-CR-2186 | March 22, 2017            Page 1 of 7
                                          Statement of the Case
[1]   Austin J. Huffman appeals after pleading guilty to one count of possession of a
                                                             1
      precursor by a methamphetamine offender, as a Level 6 felony, contending

      that his sentence of two and one half years is inappropriate. We affirm.


                                                      Issue
[2]   The sole issue presented on appeal is whether Huffman’s sentence of two and

      one half years is inappropriate in light of the nature of the offense and the

      character of the offender.


                                   Facts and Procedural History
[3]   On January 14, 2016, Huffman possessed pseudoephedrine without a

      prescription. Two years prior, Huffman had been convicted of possession of

      two or more precursors with the intent to manufacture a controlled substance.


[4]   The State charged Huffman with one count of possession of a precursor by a

      methamphetamine offender, and one count of theft. The probable cause

      affidavit for the theft count alleged that Huffman took Sudafed from Walmart,

      returned the stolen items for store credit, and used the store credit to purchase

      precursors to methamphetamine.




      1
          Ind. Code § 35-48-4-14.5(h)(1)(D) (2014).


      Court of Appeals of Indiana | Memorandum Decision 76A03-1609-CR-2186 | March 22, 2017   Page 2 of 7
[5]   Huffman pleaded guilty to possession of precursors and admitted to the facts as

      alleged by the State. Per the terms of the plea agreement, the theft count was

      dismissed and Huffman paid $33.90 to Walmart as restitution. Sentencing was

      left open to the trial court.


[6]   The presentence investigation report revealed that Huffman, who was twenty-

      six years old at the time of the offense, had both a juvenile delinquency history

      and an extensive adult criminal history. Huffman’s juvenile history included

      commitments to the Indiana Department of Correction for residential entry,

      operating a motor vehicle without ever receiving a license, and theft. He also

      had violated the conditions of his probation.


[7]   A juvenile charge of illegal consumption of an alcoholic beverage as a

      misdemeanor offense was waived to adult court, and he was incarcerated for

      twenty days. The remainder of his adult criminal history includes convictions

      for eleven misdemeanor offenses and three felony offenses. He violated the

      terms of his probation on four of those offenses. At the time of his sentencing

      for the current offense, he had three pending cases in DeKalb County: one

      count of driving while suspended, one count of theft, and one count of dealing

      methamphetamine. He also had a pending case in Steuben County for felony

      possession of precursors.


[8]   At the sentencing hearing held on August 15, 2016, the trial court found that

      Huffman’s guilty plea was a mitigating factor. As for aggravating

      circumstances, the trial court found that Huffman had accumulated a juvenile


      Court of Appeals of Indiana | Memorandum Decision 76A03-1609-CR-2186 | March 22, 2017   Page 3 of 7
       delinquency history and an extensive adult criminal history. Huffman had been

       placed on probation in the past and had his probation revoked. The trial court

       concluded that the aggravating circumstances outweighed the mitigating

       circumstances and imposed the maximum sentence of two and one half years.


[9]    The trial court also stated its intention to recommend to the Indiana

       Department of Correction that Huffman be allowed to participate in the

       therapeutic community program. However, Huffman had expressed to the

       probation officer preparing his pre-sentence investigation report that he did not

       want to participate in the therapeutic community program for this offense. He

       believed he could earn a greater reduction in executed time if his participation

       in that program occurred while serving his sentence for a pending DeKalb

       County charge, which would result in a longer sentence. Huffman now

       appeals.


                                    Discussion and Decision
[10]   Huffman contends that his sentence is inappropriate in light of the nature of the

       offense and the character of the offender. He argues that he is not one of the

       worst offenders and that his crime is not one of the worst offenses such that a

       maximum sentence is justified. Huffman received the maximum sentence of

       two and one half years for his Level 6 felony conviction. See Ind. Code § 35-50-

       2-7(b) (2016) (sentencing range between six months and two and one half

       years).




       Court of Appeals of Indiana | Memorandum Decision 76A03-1609-CR-2186 | March 22, 2017   Page 4 of 7
[11]   “Indiana Appellate Rule 7(B) provides, ‘[t]he 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.’” Shoun v. State, 67 N.E.3d 635, 642 (Ind.

       2017). Courts on review have long recognized that the maximum sentence

       permitted by law should be reserved for the very worst offenders. Bacher v.

       State, 686 N.E.2d 791, 802 (Ind. 1997). Appellate review should be focused on

       attempting to leaven the outliers, not achieving a perceived correct result in

       each case. Id. “We recognize the special expertise of the trial court in making

       sentencing decisions, and we will refrain from merely substituting our opinion

       for that of the trial court.” Davis v. State, 851 N.E.2d 1264, 1267 (Ind. Ct. App.

       2006), trans. denied. However, we are authorized by the state constitution to

       conduct independent appellate review of sentences. Knight v. State, 930 N.E.2d

       20, 22 (Ind. 2010). The appellant bears the burden of persuading the court on

       review that the sentence imposed by the trial court is inappropriate. Shoun, 67

       N.E.3d at 642. Further, the defendant must show that the sentence was

       inappropriate in light of both his character and the nature of the offense.

       Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008).


[12]   Turning to the nature of Huffman’s offense, we acknowledge that the advisory

       sentence is the starting point when considering whether a sentence is

       inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on

       reh’g, 875 N.E.2d 218 (Ind. 2007). The advisory sentence for a Level 6 felony is

       one year. Ind. Code § 35-50-2-7(b). Thus, the trial court deviated from the

       Court of Appeals of Indiana | Memorandum Decision 76A03-1609-CR-2186 | March 22, 2017   Page 5 of 7
       advisory sentence by imposing a sentence that is one and one half years longer

       than the advisory sentence.


[13]   After reviewing the record, we find nothing that distinguishes Huffman’s

       offense from a typical case involving possession of a precursor by a

       methamphetamine offender as a Level 6 felony. There is nothing more or less

       egregious about the offense than was contemplated by the legislature.


[14]   Turning to Huffman’s character, however, we find that he has not met his

       burden of persuading us that his sentence is inappropriate. Huffman’s first

       contact with the criminal justice system occurred when he was nine years old.

       As a juvenile he was adjudicated a delinquent child for what would be the

       felony offenses of residential entry and theft. He also was adjudicated a

       delinquent child for what would be the misdemeanor offenses of operating a

       vehicle without ever having received a license and illegal consumption of

       alcohol. As a juvenile, he had his probation revoked, was placed in a

       residential facility, and was committed to the Indiana Department of

       Correction on two occasions.


[15]   As an adult, Huffman was convicted fifteen times. Five of his prior convictions

       involved illegal drugs. His probation was revoked four times. Further, at the

       time of his sentencing hearing, he had a pending case for possession of

       precursors by a methamphetamine offender as a Level 6 felony. The three

       pending cases he had in DeKalb County were for misdemeanor driving while




       Court of Appeals of Indiana | Memorandum Decision 76A03-1609-CR-2186 | March 22, 2017   Page 6 of 7
       suspended, felony theft, and felony dealing methamphetamine in the presence

       of a minor.


[16]   Huffman has had many opportunities to conform his behavior to the

       requirements of the law, yet has persisted in his pattern of criminal activity.

       Indeed, instead of seeking therapeutic help for his issues with substance abuse

       sooner rather than later, he chose to delay the benefits of that program until it

       would maximize the reduction of executed time he would likely have to serve

       as a consequence for the crimes alleged in his pending cases.


[17]   We conclude that Huffman’s sentence is not inappropriate in light of his

       character.


                                                Conclusion
[18]   In light of the foregoing, we affirm the trial court’s judgment.


[19]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 76A03-1609-CR-2186 | March 22, 2017   Page 7 of 7
