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
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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