Alvin D. Allen v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 31, 2017
• Docket: 84A04-1702-CR-406
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 31 2017, 8:19 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Alvin D. Allen, July 31, 2017 Appellant-Defendant, Court of Appeals Case No. 84A04-1702-CR-406 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable John T. Roach, Appellee-Plaintiff Judge Trial Court Cause Nos. 84D01-1512-F2-3063 84D01-1601-F4-218

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 84A04-1702-CR-406 | July 31, 2017 Page 1 of 5 [1] Alvin Allen appeals the sentence imposed by the trial court after Allen pleaded

guilty to Level 2 felony dealing in methamphetamine, Level 4 felony dealing in

methamphetamine, and Level 6 felony theft of a firearm.1 Allen contends that

the sentence is inappropriate in light of the nature of the offenses and his

character. Finding that the sentence is not inappropriate, we affirm.

[2] On December 2, 2015, a confidential informant working with law enforcement

in Vigo County conducted a controlled buy of methamphetamine from Allen at

his home. On December 10, 2015, police executed a search warrant at Allen’s

home, during which they found methamphetamine, marijuana, alprazolam, a

glass smoking pipe, and several firearms. Allen’s toddler son was home at the

time.

[3] On December 14, 2015, the State charged Allen under cause number 84D01-

1512-F2-3063 (F2-3063)2 with the following: Level 2 felony dealing in

methamphetamine, Level 3 felony possession of methamphetamine, Level 4

felony dealing in a controlled substance, Level 5 felony neglect of a dependent,

two counts of Level 6 felony maintaining a common nuisance, two counts of

Level 6 felony theft of a firearm, Level 6 felony dealing in marijuana, Class B

misdemeanor possession of marijuana, and Class A misdemeanor possession of

1 In Allen’s plea agreement, he agreed to waive the right to appeal the sentence imposed in this matter. At the sentencing hearing, however, the trial court advised Allen that he had a right to appeal his sentence because there was no agreement as to the sentence. Tr. p. 13. Neither Allen’s counsel nor the State objected to the trial court’s statement. The State is not challenging Allen’s right to appeal his sentence. 2 These offenses stem from the December 10, 2015, search of Allen’s residence.

Court of Appeals of Indiana | Memorandum Decision 84A04-1702-CR-406 | July 31, 2017 Page 2 of 5 paraphernalia. The State filed a notice of intent to seek two firearm

enhancements for the charge of Level 4 felony dealing in a controlled

substance.

[4] On January 27, 2016, the State charged Allen under cause number 84D01-1601-

F4-218 (F4-218)3 with the following: Level 4 felony dealing in

methamphetamine, Level 6 felony possession of methamphetamine, and Level

6 felony maintaining a common nuisance.

[5] On January 25, 2017, Allen pleaded guilty to Level 2 felony dealing in

methamphetamine, Level 3 felony possession of methamphetamine, and Level

6 felony theft of a firearm under cause F2-3063, and to Level 4 felony dealing in

methamphetamine under cause F4-218. Under the plea agreement, the State

agreed to dismiss all remaining charges. The plea agreement provided that all

sentences would run concurrently, and it capped the aggregate sentence at

twenty years. At the January 25, 2017, sentencing hearing, the trial court

merged Allen’s Level 3 felony possession of methamphetamine conviction into

the Level 2 felony dealing in methamphetamine to prevent double jeopardy

concerns. The trial court imposed a twenty-year sentence for his Level 2

conviction, an eight-year sentence for his Level 4 conviction, and a two-year

sentence for his Level 6 conviction, all to run concurrently, for an aggregate

sentence of twenty years.

3 These offenses stem from the December 2, 2015, controlled buy.

Court of Appeals of Indiana | Memorandum Decision 84A04-1702-CR-406 | July 31, 2017 Page 3 of 5 [6] Allen’s sole argument on appeal is that the sentence is inappropriate in light of

the nature of the offenses and his character. Indiana Appellate Rule 7(B)

provides that this Court may revise a sentence if it is inappropriate in light of

the nature of the offense and the character of the offender. We must “conduct

[this] review with substantial deference and give ‘due consideration’ to the trial

court's decision—since the ‘principal role of [our] review is to attempt to leaven

the outliers,’ and not to achieve a perceived ‘correct’ sentence . . . . ” Knapp v.

State, 9 N.E.3d 1274, 1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d

1257, 1259 (Ind. 2013)) (internal citations omitted).

[7] Allen pleaded guilty to Level 2 felony dealing in methamphetamine, Level 4

felony dealing in methamphetamine, and Level 6 felony theft of a firearm. For

his Level 2 conviction, he faced a term of ten to thirty years, with an advisory

term of seventeen and one-half years imprisonment. Ind. Code § 35-50-2-4.5.

For his Level 4 conviction, he faced a term of two to twelve years

imprisonment, with an advisory term of six years imprisonment. I.C. § 35-50-2-

5.5. For his Level 6 conviction, he faced a term of six months to two and one-

half years, with an advisory term of one year imprisonment. I.C. § 35-50-2-7.

Allen received an aggregate executed twenty-year sentence.

[8] Initially, we note that Allen agreed to enter into a plea agreement that provided

that he could receive a maximum sentence of twenty years. The trial court

imposed a twenty-year sentence, as contemplated by the plea agreement, and

because Allen agreed to this sentence, he cannot now argue that it was

Court of Appeals of Indiana | Memorandum Decision 84A04-1702-CR-406 | July 31, 2017 Page 4 of 5 inappropriate. His agreement notwithstanding, we will still discuss his

argument.

[9] As for the nature of the offense, Allen possessed and intended to deal

methamphetamine. He committed theft of a firearm. While these offenses are

not the worst of the worst, Allen put his young child in harm’s way by

conducting his activities in the presence of and within close proximity to his

child.

[10] As for Allen’s character, he has a lengthy history of contact with the criminal

justice system. As a teenager, he was committed to the Indiana Boys’ School

four times. As an adult, he has had six felony convictions, including two

convictions for Class D felony possession of cocaine, Class D felony possession

of methamphetamine, Class D felony possession of marijuana, and Class C

felony possession of methamphetamine. In addition, he has had ten

misdemeanor convictions, including convictions for domestic battery,

possession of marijuana, and resisting law enforcement.

[11] Given the nature of the offenses and Allen’s character, including a lengthy

history of contact with the criminal justice system that has not deterred him

from continuing to commit crimes, we do not find the sentence imposed by the

trial court to be inappropriate.

[12] The judgment of the trial court is affirmed.

Barnes, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 84A04-1702-CR-406 | July 31, 2017 Page 5 of 5