MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                Dec 22 2017, 6:23 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
Mark Small                                              Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        J.T. Whitehead
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Archie Massey,                                          December 22, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        38A02-1706-CR-1406
        v.                                              Appeal from the Jay Circuit Court
                                                        The Honorable Brian D.
State of Indiana,                                       Hutchison, Judge
Appellee-Plaintiff                                      Trial Court Cause Nos.
                                                        38C01-1602-F5-8
                                                        38C01-1609-F5-43



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1406| December 22, 2017          Page 1 of 7
                                            Case Summary
[1]   Archie Massey appeals his five-year sentence imposed following his guilty plea

      to level 5 felony possession of a narcotic drug. Massey asserts that the trial

      court abused its discretion in sentencing him by relying on an improper

      aggravating circumstance. We conclude that the trial court did not abuse its

      discretion in sentencing Massey, and therefore we affirm.


                                 Facts and Procedural History
[2]   In February 2016, in cause number 38C01-1602-F5-8 (“Cause F5-8”), the State

      charged Massey with Count I, level 5 felony possession of a narcotic drug, and

      Count II, level 6 felony possession of a controlled substance. Count I was

      enhanced from a level 6 felony to a level 5 felony because Massey had a

      “previous conviction for Dealing in a Schedule II Controlled Substance.”

      Appellant’s App. Vol. 2 at 15. In September 2016, the State charged Massey

      under cause number 38C01-1609-F5-43 (“Cause F5-43”) with Count I, level 5

      felony dealing in a narcotic drug, and Count II, level 5 felony dealing in a

      narcotic drug. Id. at 52. Also in Cause F5-43, the State filed a notice of intent

      to seek habitual offender status. Id. at 53.


[3]   In January 2017, Massey entered into a plea agreement, in which he agreed to

      plead guilty to the first count in both causes. Id. at 64. The State agreed to

      dismiss the second count in both causes and the habitual offender

      enhancement. Id. The plea agreement left sentencing to the trial court’s

      discretion.


      Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1406| December 22, 2017   Page 2 of 7
[4]   In February 2017, the trial court held a plea and sentencing hearing. For the

      level 5 felony possession charge in Cause F5-8, Massey admitted that he

      knowingly possessed heroin on February 5, 2016. For the level 5 felony dealing

      charge in Cause F5-43, Massey admitted that he delivered heroin to a

      confidential informant in exchange for $600 on November 11, 2015. The trial

      court found that Massey’s offers to plead guilty were freely and voluntarily

      made and there was a factual basis for each of the pleas, and accepted the plea

      agreement.


[5]   Turning to sentencing, the trial court found that the two current offenses were

      Massey’s fourth and fifth felony convictions, including a prior conviction for

      dealing; Massey had numerous misdemeanor convictions and a federal

      weapons charge; and Massey had repeatedly violated probation conditions.

      The trial court observed that Massey was “going the wrong way” and that

      “[t]hose are significant aggravating circumstances that would warrant the

      imposition of a maximum sentence on each count.” Tr. Vol. 3 at 23. The trial

      court found that undue hardship to Massey’s family and health were not

      mitigating circumstances that deserved weight. The trial court also found that

      Massey’s guilty plea was not a mitigating circumstance because he had received

      a substantial benefit with the dismissal of the habitual offender enhancement.

      However, the trial court found that his cooperation with the State warranted

      some mitigating weight. The trial court found that the aggravating

      circumstances “far outweighed” the mitigating circumstances and imposed a

      five-year executed sentence on each count. Id. at 24. The trial court decided to


      Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1406| December 22, 2017   Page 3 of 7
      order consecutive sentences, noting that Massey has “a significant criminal

      record,” his offenses were “separated by three months,” and he had served

      seven years for his most recent felony conviction. Id. As a result, Massey

      received a ten-year aggregate sentence. This appeal ensued.


                                     Discussion and Decision
[6]   Although Massey’s argument is difficult to discern, it is focused on Cause F5-8

      and his conviction for possession of a narcotic drug with its enhancement from

      a level 6 felony to a level 5 felony based on his previous conviction for dealing

      in a schedule II controlled substance. Appellant’s App. Vol. 2 at 15. Generally,

      possession of a narcotic drug is a level 6 felony. Ind. Code § 35-48-4-6(a).

      However, where the amount of the drug involved is less than five grams “and

      an enhancing circumstance applies[,]” the offense is a level 5 felony. Ind. Code

      § 35-48-4-6(b)(2). An enhancing circumstance includes “a prior conviction, in

      any jurisdiction, for dealing in a controlled substance that is not marijuana,

      hashish, hash oil, salvia divinorum, or a synthetic drug, including an attempt or

      conspiracy to commit the offense.” Ind. Code § 35-48-1-16.5(1).


[7]   Massey argues that at the plea hearing, the trial court committed fundamental

      error by failing to apprise him of the previous conviction that was relied on in

      the charging information to elevate the offense from a level 6 felony to a level 5

      felony. Massey appears to argue that because the trial court did not discuss the

      enhancement of the felony level, he did not fully understand the nature of the

      offense and a sufficient factual basis to support his guilty plea was not

      established. Despite Massey’s attempts to frame his argument in terms of
      Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1406| December 22, 2017   Page 4 of 7
      sentencing, his argument is essentially a challenge to the validity of his

      conviction. We observe that “[d]efendants who plead guilty to achieve

      favorable outcomes forfeit a plethora of substantive claims and procedural

      rights.” Alvey v. State, 911 N.E.2d 1248, 1250-51 (Ind. 2009). “It is well settled

      that a person who pleads guilty cannot challenge the propriety of the resulting

      conviction on direct appeal; he or she is limited on direct appeal to contesting

      the merits of a trial court’s sentencing decision, and then only where the

      sentence is not fixed in the plea agreement.” Id. at 1249. Accordingly, Massey

      is foreclosed from attacking the validity of his conviction for level 5 felony

      possession of a narcotic drug on direct appeal, and we will not consider this

      argument.


[8]   However, Massey also contends that the trial court abused its discretion in

      sentencing him in Cause F5-8 by considering the previous dealing conviction

      that was used to elevate his offense to a level 5 felony as an aggravating

      circumstance. Because Massey’s plea agreement left sentencing to the

      discretion of the trial court, we may address this argument. See Kling v. State,

      837 N.E.2d 502, 504 (Ind. 2005) (“[I]f, in a guilty plea situation, there is no

      agreement between the defendant and the State as to the sentence to be

      imposed—called an ‘open plea,’ i.e., one where the judge has discretion as to

      the sentence to be imposed, the sentence can, indeed must, be challenged (if at

      all) by means of a direct appeal.”).


[9]   We note that 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

      Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1406| December 22, 2017   Page 5 of 7
       N.E.2d 218. So long as the sentence is within the statutory range, it is subject

       to review only for an abuse of discretion. Id. 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 491. A trial court abuses its discretion during sentencing by

       (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.


[10]   The advisory sentence for a level 5 felony is three years, with a fixed term of

       between one and six years. Ind. Code § 35-50-2-6. Here, the trial court

       imposed a five-year sentence. Massey argues that his previous dealing

       conviction was a material element of his level 5 felony possession conviction

       and that “a factor constituting a material element of a crime cannot be

       considered an aggravating circumstance in determining a sentence.”

       Appellant’s Br. at 13. Our supreme court has held that, “[w]here a trial court’s

       reason for imposing a sentence greater than the advisory sentence includes

       material elements of the offense, absent something unique about the

       circumstances that would justify deviating from the advisory sentence, that

       reason is ‘improper as a matter of law.’” Gomillia v. State, 13 N.E.3d 846, 852-53




       Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1406| December 22, 2017   Page 6 of 7
       (Ind. 2014) (quoting Anglemyer, 868 N.E.2d at 491).1 In sentencing Massey, the

       trial court mentioned his previous dealing conviction, but the court also noted

       Massey’s other felony and misdemeanor convictions and his persistent

       violations of probation conditions. Because the trial court did not rely solely on

       the previous dealing conviction to impose a sentence above the advisory, we

       decline to find that the trial court abused its discretion in sentencing Massey.2


[11]   Affirmed.


       Robb, J., and Bradford, J., concur.




       1
           The case cited by Massey is outdated in light of our supreme court’s holding in Gomillia.
       2
         Massey cites Indiana 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] find[] that the sentence is inappropriate in
       light of the nature of the offense and the character of the offender.” However, Massey does not develop any
       specific argument regarding the nature of the offense or his character, and therefore we consider any Rule
       7(B) claim waived. See Perry v. State, 921 N.E.2d 525, 528 (Ind. Ct. App. 2010) (“It is well-established that a
       failure to make a cogent argument regarding the nature of the defendant’s offense and the defendant’s
       character results in waiver of the defendant’s appropriateness claim.”). We take this opportunity to clarify
       that “inappropriate sentence and abuse of discretion claims are to be analyzed separately.” King v. State, 894
       N.E.2d 265, 267 (Ind. Ct. App. 2008).

       Court of Appeals of Indiana | Memorandum Decision 38A02-1706-CR-1406| December 22, 2017                  Page 7 of 7
