MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 24 2020, 10:11 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald C. Swanson, Jr. Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana J. T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Adam R. McCarthy, March 24, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2655 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge Trial Court Cause No. 02D05-1903-F6-275
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2655 | March 24, 2020 Page 1 of 8 STATEMENT OF THE CASE [1] Appellant-Defendant, Adam R. McCarthy (McCarthy), appeals his sentence for
possession of methamphetamine, a Level 6 felony, Ind. Code § 35-48-4-6.1.
[2] We affirm.
ISSUES [3] McCarthy presents us with two issues on appeal, which we restate as:
(1) Whether the trial court abused its discretion by failing to recognize
certain mitigating circumstances; and
(2) Whether the sentence is inappropriate in light of the nature of the offense
and his character.
FACTS AND PROCEDURAL HISTORY [4] On March 11, 2019, the State filed an Information, charging McCarthy with
possession of methamphetamine, a Level 6 felony. On July 8, 2019, McCarthy
pled guilty to the offense and entered the Drug Court Diversion Program.
Pursuant to the requirements of the Drug Court Diversion Program, McCarthy
agreed to obey all laws, notify his case manager if he was arrested or if he had
contact with law enforcement officials, and to successfully complete the
residency program. On his admission to the Program, McCarthy was placed at
the Park Center Addictions Residential Program. He successfully completed
the program on August 13, 2019, and was consequently placed at the Freedom
House. McCarthy failed to complete Freedom House’s program and was
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2655 | March 24, 2020 Page 2 of 8 terminated from the recovery program on August 25, 2019. On August 30,
2019, new charges were filed against him for possession of a schedule I
substance and possession of paraphernalia.
[5] On October 22, 2019, the trial court conducted a sentencing hearing. During
the hearing, the trial court found McCarthy’s criminal history to be an
aggravating circumstance. His criminal involvement includes two
adjudications as a juvenile where he was found delinquent for having operated
a vehicle while intoxicated and failing to stop after an accident. As an adult,
McCarthy collected nine misdemeanor convictions and two prior felony
convictions, commencing in 2013 with charges for burglary and residential
entry. He was sentenced to six years, with two years suspended to probation,
for burglary and to two years for residential entry. He violated his probation.
In 2013, he was sentenced to thirty days for a misdemeanor conviction. In
2014, he was sentenced for possession of a synthetic drug. In 2015, he was
sentenced for operating while intoxicated. In 2018, he was sentenced for public
intoxication, as well as conversion, resisting law enforcement, and false
informing. In 2019, McCarthy was sentenced for possession of marijuana. In
another 2019 Cause, he was convicted of possession of methamphetamine,
possession of marijuana, and false informing. Lastly, McCarthy was charged
with possession of a controlled substance, the arrest for which constituted the
basis of the State’s petition in this cause to revoke his placement with the Drug
Court Diversion Program. His record is rife with failed efforts at rehabilitation,
covering a period of time from 2012 to 2019. Through the juvenile system,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2655 | March 24, 2020 Page 3 of 8 McCarthy was unsuccessfully given the benefits of operational supervision,
individual counseling, and substance abuse out-patient treatment. McCarthy
has received jail sentences, active adult probation, time in the Work Release
facility, and time on the Home Detention Program. During the hearing in the
instant Cause, the trial court identified McCarthy’s criminal history as an
aggravating circumstance and his plea of guilty, acceptance of responsibility
and his remorse expressed in open court as mitigating circumstances. At the
close of the hearing, the trial court sentenced him to two years executed at the
Department of Correction.
[6] McCarthy now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION [7] McCarthy contends that the trial court abused its discretion by failing to
recognize certain mitigating circumstances during his sentencing and by
imposing a sentence that is inappropriate in light of the nature of the offense
and his character.
I. Mitigating Circumstances
[8] Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal 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 (2007). 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. Court of Appeals of Indiana | Memorandum Decision 19A-CR-2655 | March 24, 2020 Page 4 of 8 [9] The finding of mitigating circumstances is not mandatory but is within the
discretion of the trial court. Hunter v. State, 72 N.E.3d 928, 935 (Ind. Ct. App.
2017), trans. denied. The court is neither obligated to accept the defendant’s
arguments as to what constitutes a mitigating factor nor required to give the
same weight to a proposed mitigating factor as does the defendant. Id. An
allegation that the trial court failed to find a mitigating factor requires the
defendant on appeal to establish that the mitigating evidence is both significant
and clearly supported by the record. Id.
[10] Besides an enumeration of the omitted mitigating factors—limited formal
education and history of mental health and substance abuse 1—McCarthy fails
to support these proposed mitigators with a quantum of their significance or
references to the record. Accordingly, we cannot conclude that the trial court
abused its discretion in failing to find McCarthy’s proffered mitigators.
II. Sentence
[11] Pursuant to Indiana Appellate Rule 7(B), we may revise a sentence otherwise
authorized by statute if, “after due consideration of the trial court’s decision, the
[c]ourt finds that the sentence is inappropriate in light of the nature of the
offense and the character of the offender.” In our review of sentences under
this rule, “we must and should exercise deference to a trial court’s sentencing
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 24 2020, 10:11 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald C. Swanson, Jr. Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana J. T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Adam R. McCarthy, March 24, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2655 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge Trial Court Cause No. 02D05-1903-F6-275
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2655 | March 24, 2020 Page 1 of 8 STATEMENT OF THE CASE [1] Appellant-Defendant, Adam R. McCarthy (McCarthy), appeals his sentence for
possession of methamphetamine, a Level 6 felony, Ind. Code § 35-48-4-6.1.
[2] We affirm.
ISSUES [3] McCarthy presents us with two issues on appeal, which we restate as:
(1) Whether the trial court abused its discretion by failing to recognize
certain mitigating circumstances; and
(2) Whether the sentence is inappropriate in light of the nature of the offense
and his character.
FACTS AND PROCEDURAL HISTORY [4] On March 11, 2019, the State filed an Information, charging McCarthy with
possession of methamphetamine, a Level 6 felony. On July 8, 2019, McCarthy
pled guilty to the offense and entered the Drug Court Diversion Program.
Pursuant to the requirements of the Drug Court Diversion Program, McCarthy
agreed to obey all laws, notify his case manager if he was arrested or if he had
contact with law enforcement officials, and to successfully complete the
residency program. On his admission to the Program, McCarthy was placed at
the Park Center Addictions Residential Program. He successfully completed
the program on August 13, 2019, and was consequently placed at the Freedom
House. McCarthy failed to complete Freedom House’s program and was
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2655 | March 24, 2020 Page 2 of 8 terminated from the recovery program on August 25, 2019. On August 30,
2019, new charges were filed against him for possession of a schedule I
substance and possession of paraphernalia.
[5] On October 22, 2019, the trial court conducted a sentencing hearing. During
the hearing, the trial court found McCarthy’s criminal history to be an
aggravating circumstance. His criminal involvement includes two
adjudications as a juvenile where he was found delinquent for having operated
a vehicle while intoxicated and failing to stop after an accident. As an adult,
McCarthy collected nine misdemeanor convictions and two prior felony
convictions, commencing in 2013 with charges for burglary and residential
entry. He was sentenced to six years, with two years suspended to probation,
for burglary and to two years for residential entry. He violated his probation.
In 2013, he was sentenced to thirty days for a misdemeanor conviction. In
2014, he was sentenced for possession of a synthetic drug. In 2015, he was
sentenced for operating while intoxicated. In 2018, he was sentenced for public
intoxication, as well as conversion, resisting law enforcement, and false
informing. In 2019, McCarthy was sentenced for possession of marijuana. In
another 2019 Cause, he was convicted of possession of methamphetamine,
possession of marijuana, and false informing. Lastly, McCarthy was charged
with possession of a controlled substance, the arrest for which constituted the
basis of the State’s petition in this cause to revoke his placement with the Drug
Court Diversion Program. His record is rife with failed efforts at rehabilitation,
covering a period of time from 2012 to 2019. Through the juvenile system,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2655 | March 24, 2020 Page 3 of 8 McCarthy was unsuccessfully given the benefits of operational supervision,
individual counseling, and substance abuse out-patient treatment. McCarthy
has received jail sentences, active adult probation, time in the Work Release
facility, and time on the Home Detention Program. During the hearing in the
instant Cause, the trial court identified McCarthy’s criminal history as an
aggravating circumstance and his plea of guilty, acceptance of responsibility
and his remorse expressed in open court as mitigating circumstances. At the
close of the hearing, the trial court sentenced him to two years executed at the
Department of Correction.
[6] McCarthy now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION [7] McCarthy contends that the trial court abused its discretion by failing to
recognize certain mitigating circumstances during his sentencing and by
imposing a sentence that is inappropriate in light of the nature of the offense
and his character.
I. Mitigating Circumstances
[8] Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal 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 (2007). 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. Court of Appeals of Indiana | Memorandum Decision 19A-CR-2655 | March 24, 2020 Page 4 of 8 [9] The finding of mitigating circumstances is not mandatory but is within the
discretion of the trial court. Hunter v. State, 72 N.E.3d 928, 935 (Ind. Ct. App.
2017), trans. denied. The court is neither obligated to accept the defendant’s
arguments as to what constitutes a mitigating factor nor required to give the
same weight to a proposed mitigating factor as does the defendant. Id. An
allegation that the trial court failed to find a mitigating factor requires the
defendant on appeal to establish that the mitigating evidence is both significant
and clearly supported by the record. Id.
[10] Besides an enumeration of the omitted mitigating factors—limited formal
education and history of mental health and substance abuse 1—McCarthy fails
to support these proposed mitigators with a quantum of their significance or
references to the record. Accordingly, we cannot conclude that the trial court
abused its discretion in failing to find McCarthy’s proffered mitigators.
II. Sentence
[11] Pursuant to Indiana Appellate Rule 7(B), we may revise a sentence otherwise
authorized by statute if, “after due consideration of the trial court’s decision, the
[c]ourt finds that the sentence is inappropriate in light of the nature of the
offense and the character of the offender.” In our review of sentences under
this rule, “we must and should exercise deference to a trial court’s sentencing
1 McCarthy also alleges that the trial court failed to take into account his guilty plea and acceptance of responsibility as mitigating circumstances. However, during the hearing, the trial court stated, “I do find as mitigating circumstances your plea of guilty and acceptance of responsibility[.]” (Transcript p. 6).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2655 | March 24, 2020 Page 5 of 8 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.” Trainor v. State, 950 N.E.2d 352,
355 (Ind. Ct. App. 2011), trans. denied.
[12] Although we have the power to review and revise sentences, the principal role
of our review should be to attempt to level the outliers, and identify some
guiding principles for trial courts and those charged with improvement of the
sentencing statutes, but not to achieve what we perceive to be a “correct” result
in each case. Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011),
trans. denied (citing Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). Our
review under Appellate Rule 7(B) should focus on “the forest—the aggregate
sentence—rather than the trees—consecutive or concurrent, number of counts,
or length of the sentence on any individual count.” Fernbach, 954 N.E.2d at
1089. The appropriate question is not whether another sentence is more
appropriate; rather, the question is whether the sentence imposed is
inappropriate. Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). And
it is the defendant’s burden on appeal to persuade us that the sentence imposed
by the trial court is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080
(Ind. 2006).
[13] The trial court sentenced McCarthy to two years for a Level 6 felony
possession. “A person who commits a Level 6 felony [] shall be imprisoned for
a fixed term of between six (6) months and two and one-half (2 ½) years, with
the advisory sentence being one (1) year.” I.C. § 35-50-2-7. McCarthy was
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2655 | March 24, 2020 Page 6 of 8 initially given an opportunity to refrain from illegal drugs by receiving help
through the Drug Court Diversion Program, resulting in a reduction of his
actual time served by his credit for 108 days from his participation in the
diversion program.
[14] The nature of McCarty’s crime is unremarkable: he was arrested for possession
of methamphetamines. Nevertheless, his instant offense coincided closely in
time to his commission of possession of marijuana and paraphernalia in
another Cause.
[15] Turning to McCarthy’s character, we note his repeated inability to refrain from
this kind of offense despite receiving multiple opportunities for reform in the
past. McCarthy’s criminal history reflects that he has been convicted on several
drug-related offenses and has been given multiple chances for rehabilitation
through probation and work release. Instead of trying to reform, he continues
to offend, most notably with a possession of a controlled substance charge, the
arrest for which constituted the basis of the State’s petition in this Cause to
revoke his placement with the Drug Court Diversion Program. Given past
failed attempts at rehabilitation, given McCarthy’s extensive criminal history,
and given his pending sentences at present for the same or similar offenses, we
cannot conclude that McCarthy’s two-year aggravated sentence is
inappropriate.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2655 | March 24, 2020 Page 7 of 8 CONCLUSION [16] Based on the foregoing, we hold that the trial court properly sentenced
McCarthy.
[17] Affirmed.
[18] Baker, J. and Brown, J. concur
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2655 | March 24, 2020 Page 8 of 8