Andrew C. Abbott v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 24, 2018
• Docket: 18A-CR-670
• 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 24 2018, 10:04 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 John T. Wilson Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana

Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Andrew C. Abbott, July 24, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-670 v. Appeal from the Henry Circuit Court State of Indiana, The Honorable David L. McCord, Appellee-Plaintiff. Judge Trial Court Cause No. 33C03-1702-F6-85

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-670 | July 24, 2018 Page 1 of 8 [1] Andrew Abbott appeals his sentence for possession of methamphetamine as a

level 6 felony. Abbott raises one issue which we revise and restate as whether

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

character. We affirm Abbott’s sentence but remand with instructions that the

trial court attach his habitual offender enhancement to his sentence for

possession of methamphetamine as a level 6 felony.

Facts and Procedural History

[2] On February 27, 2017, Abbott knowingly and intentionally possessed

methamphetamine in Henry County, Indiana. On that date, New Castle police

officers were investigating a possible theft and stopped him. He allowed the

officers to search him, and they found two baggies of a white substance and

other paraphernalia in his pockets. Abbott admitted, and field testing showed,

that the substance was methamphetamine.

[3] The State charged Abbott with possession of methamphetamine as a level 6

felony under Count I and possession of paraphernalia as a class C misdemeanor

under Count II, and it alleged that he was an habitual offender. Abbott and the

State entered into a plea agreement which provided that the class C

misdemeanor would be dismissed and that:

In consideration of [Abbott] pleading guilty to the offense(s) of: Count I, Possession of Methamphetamine, Level 6 Felony, and admit to the Habitual Felony Offender Enhancement, the State agrees that if the Court accepts this agreement, the Court shall sentence defendant as follows:

Court of Appeals of Indiana | Memorandum Decision 18A-CR-670 | July 24, 2018 Page 2 of 8 Count I - Court costs. The state recommends [Abbott] be sentenced to two (2) years to the Indiana Department of Correction[s].

Habitual Felony Offender Enhancement - [Abbott] be sentenced to two (2) years to the Indiana Department of Correction[s].

The Court will be free to assess any sentence within the range of possibilities greater than the recommended sentence. The parties agree that the additional sentence over the recommended sentence will be suspended.

[Abbott] will be free to advocate a lesser sentence and the Court will be free to impose a sentence lesser than the State’s recommended sentence; and may use any sentence options to include imprisonment, treatment as a Class A Misdemeanor, direct commitment to Community Corrections to include in- home detention or work release, or suspend any or all with formal probation.

Appellant’s Appendix Volume II at 38. Abbott pled guilty to Count I and

admitted to being an habitual offender pursuant to the plea agreement.

[4] At sentencing on December 4, 2017, he testified that he was employed and was

in a temporarily laid-off position. He presented a paystub showing his

employment and a drug screen result form dated October 31, 2017, stating that

the reason for the test was pre-employment and that the results were negative

for all drugs tested. He indicated he received a certificate of completion of the

New Castle IOP treatment program, and stated that, if the court found

community corrections placement was appropriate, he had a place to live, and

that, until his employer called him back, he was doing side work in

Court of Appeals of Indiana | Memorandum Decision 18A-CR-670 | July 24, 2018 Page 3 of 8 construction. Shannon Giselle, when asked about her connection with Abbott,

testified “[w]e’ve been friends for four years and the last nine months, we’ve

been hanging out again and I’ve been hiring him to help me do some

remodeling work for the place I’m renting.” Transcript Volume II at 16. When

asked how long the employment would continue, she replied “I have work for

the next two years.” Id. at 17.

[5] Abbott’s defense counsel requested that he be placed in community corrections.

The prosecutor stated that, based on Abbott’s criminal history, the State was

asking that he be sentenced to two years on Count I enhanced by two years due

to being an habitual offender. Abbott apologized for breaking the law and

stated that he never had a drug problem until he was forty years old, that he

sought treatment, and that he no longer had a drug issue.

[6] The trial court found Abbott’s criminal history and his high risk to reoffend to

be aggravating circumstances. It also noted that Abbott signed a plea

agreement with a somewhat open sentence and a cap. It sentenced him to two

years for his conviction for possession of methamphetamine under Count I and

to two years for being an habitual offender under Count III, and it ordered that

the sentence under Count III be served consecutive to the sentence under Count

I.

Discussion

[7] The issue is whether Abbott’s sentence is inappropriate in light of the nature of

the offense and his character. Ind. Appellate Rule 7(B) provides that we “may

Court of Appeals of Indiana | Memorandum Decision 18A-CR-670 | July 24, 2018 Page 4 of 8 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.” Under this rule, the

burden is on the defendant to persuade the appellate court that his or her

sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

[8] Abbott argues his sentence is inappropriate and the court failed to consider

alternatives to incarceration. He argues that his guilty plea was an acceptance

of responsibility and is indicative of his character. He also points to his

employment history and substance abuse treatment. The State responds that

the sentence was less than the maximum and was a sentence to which Abbott

had agreed. It also points to Abbott’s multiple contacts with the criminal justice

system over many years and his admission that the crime resulted from his

substance abuse.

[9] Ind. Code § 35-50-2-7 provides that a person who commits a level 6 felony shall

be imprisoned for a fixed term of between six months and two and one-half

years, with the advisory sentence being one year. Ind. Code § 35-50-2-8

provides in part that the court shall sentence a person convicted of a level 6

felony and found to be an habitual offender to an additional nonsuspendible

fixed term between two years and six years.

[10] Our review of the nature of the offense reveals that Abbott knowingly and

intentionally possessed methamphetamine. Officers discovered two baggies of

methamphetamine in his pockets. Our review of the character of the offender

Court of Appeals of Indiana | Memorandum Decision 18A-CR-670 | July 24, 2018 Page 5 of 8 reveals that Abbott, who was born in August 1976, pled guilty pursuant to the

plea agreement to possession of methamphetamine as a level 6 felony under

Count I and admitted to being an habitual offender, and in exchange the State

dismissed the charge of possession of paraphernalia as a class C misdemeanor

and recommended a sentence of two years on Count I and an enhancement of

two years for being an habitual offender. The presentence investigation report

(“PSI”) indicates that Abbott’s juvenile criminal history includes charges for

burglary and resisting law enforcement in 1991 and delinquent adjudications for

theft as a class C felony if committed by an adult and resisting law enforcement

as a class D felony if committed by an adult in 1993. The PSI further indicates

that his adult criminal history includes convictions for criminal mischief,

resisting law enforcement and minor consuming alcohol in January 1995;

trespass and minor consuming alcohol in May 1995; trespass, possession of

marijuana, and possession of schedule I, II, III, or IV controlled substance in

June 1995; burglary in October 1995 for which he was sentenced to eight years;

four counts of burglary in May 2000 for which he was sentenced to an

aggregate term of sixteen years; escape in July 2000; receiving stolen property

and trespass in December 2010; and visiting a common nuisance in March 2016

and in September 2016.

[11] In addition, the PSI indicates that Abbott was employed by a tree service, that

he reported his first use of alcohol and marijuana was at the age of fifteen, his

last use of marijuana was a couple of months ago, he had also used speed,

methamphetamines, heroin, pain pills, and nerve pills and that his last use was

Court of Appeals of Indiana | Memorandum Decision 18A-CR-670 | July 24, 2018 Page 6 of 8 a couple of months ago, and that he reported using these drugs on a weekly

basis. Abbott stated he was currently in IOP. The PSI also indicates that his

overall risk assessment score using the Indiana risk assessment system places

him in the high risk to reoffend category. After due consideration, we conclude

that Abbott has not sustained his burden of establishing that his sentence is

inappropriate in light of the nature of the offense and his character.1

[12] While we affirm Abbott’s aggregate sentence, we observe that the trial court

erroneously entered a separate two-year sentence for the habitual offender

finding to be served consecutive to the sentence for his conviction under Count

I. An habitual offender finding does not constitute a separate crime, nor does it

result in a separate sentence. See Ind. Code § 35-50-2-8. Rather, an habitual

offender finding results in a sentence enhancement imposed upon the

conviction of a subsequent felony. Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind.

2001). Pursuant to Ind. Code § 35-50-2-8, we remand with instructions that the

trial court vacate the separate sentence on the habitual offender finding and

attach the enhancement to Abbott’s sentence for possession of

1 To the extent Abbott argues the trial court abused its discretion in sentencing him, we need not address this issue because we find that his sentence is not inappropriate under Ind. Appellate Rule 7(B). See Chappell v. State, 966 N.E.2d 124, 134 n.10 (Ind. Ct. App. 2012) (noting that any error in failing to consider the defendant’s guilty plea as a mitigating factor is harmless if the sentence is not inappropriate) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that, in the absence of a proper sentencing order, Indiana appellate courts may either remand for resentencing or exercise their authority to review the sentence pursuant to Ind. Appellate Rule 7(B)), reh’g denied; Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007) (noting that, “even if the trial court is found to have abused its discretion in the process it used to sentence the defendant, the error is harmless if the sentence imposed was not inappropriate”), trans. denied), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-670 | July 24, 2018 Page 7 of 8 methamphetamine as a level 6 felony under Count I and amend the sentencing

order and abstract of judgment accordingly.2

Conclusion

[13] For the foregoing reasons, we affirm Abbott’s sentence and remand for entry of

an amended sentencing order and abstract of judgment.

[14] Affirmed and remanded.

Robb, J., and Altice, J., concur.

2 This will not impact the length of Abbott’s aggregate sentence.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-670 | July 24, 2018 Page 8 of 8