Brandie Rose Malicoate v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 31, 2019
• Docket: 19A-CR-1938
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 31 2019, 9:38 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jared Michel Thomas Curtis T. Hill, Jr. JMT Law, LLC d/b/a Thomas Law Attorney General of Indiana Evansville, Indiana Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brandie Rose Malicoate, December 31, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1938 v. Appeal from the Vanderburgh Superior Court State of Indiana, The Honorable Robert J. Pigman, Appellee-Plaintiff. Judge Trial Court Cause No. 82D03-1811-F2-7370

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1938 | December 31, 2019 Page 1 of 6 Case Summary [1] Brandie Rose Malicoate (“Malicoate”) challenges her fourteen-year aggregate

sentence imposed following her pleas of guilty to Dealing in

Methamphetamine, as a Level 2 felony,1 and Carrying a Handgun Without a

License, as a Class A misdemeanor.2 She presents the issue of whether her

sentence is inappropriate. We affirm.

Facts and Procedural History [2] On November 1, 2019, Malicoate was detained in a traffic stop in Evansville,

Indiana and found to be in possession of an unlicensed handgun, 26.5 grams of

methamphetamine (packaged in four individual baggies), a digital scale,

MDMA pills, and $1,270.00. After her arrest and booking into jail, Malicoate

asked to speak with police officers. She advised the officers that she had been

traveling to New Albany, Indiana several times per week to bring back

methamphetamine for distribution in Evansville. According to Malicoate’s

estimate, she had sold approximately forty-eight pounds of methamphetamine

in Evansville during the preceding four months. She offered to cooperate with

law enforcement drug interdiction efforts.

1 Ind. Code § 35-48-4-1.1(a)(2). 2 I.C. § 35-47-2-1.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1938 | December 31, 2019 Page 2 of 6 [3] Malicoate was released from jail but instead of cooperating with law

enforcement, she absconded. Malicoate was re-arrested and held without bond.

On April 3, 2019, she pled guilty to charges of Dealing in Methamphetamine

and Carrying a Handgun Without a License. On June 17, 2019, she received a

sentence of fourteen years for the dealing offense and a concurrent one-year

sentence for the handgun offense. On July 31, 2019, the trial court granted

Malicoate’s motion to file a Belated Notice of Appeal pursuant to Indiana Post-

Conviction Rule 2.

Discussion and Decision [4] Pursuant to Indiana Code Section 35-50-2-4.5, a person who commits a Level 2

felony shall be imprisoned for a fixed term of between ten years and thirty

years, with an advisory sentence of seventeen and one-half years. Pursuant to

Indiana Code Section 35-50-3-2, a person who commits a Class A misdemeanor

shall be imprisoned for not more than one year. Malicoate contends that her

sentence is inappropriate and asks that we revise it to the minimum, ten-year

aggregate sentence, because she pled guilty and has no felony criminal history.

[5] Under Indiana Appellate Rule 7(B), this “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.” In performing our review, we assess “the

culpability of the defendant, the severity of the crime, the damage done to

others, and myriad other factors that come to light in a given case.” Cardwell v.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1938 | December 31, 2019 Page 3 of 6 State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of such review is

an “attempt to leaven the outliers.” Id. at 1225. Appellate courts thus “reserve

our 7(B) authority for exceptional circumstances.” Taylor v. State, 86 N.E.3d

157, 165 (Ind. 2017).

[6] The “considerable deference” given to the trial court’s sentencing judgment

“should prevail unless overcome by compelling evidence portraying in a

positive light the nature of the offense (such as accompanied by restraint,

regard, and lack of brutality) and the defendant’s character (such as substantial

virtuous traits or persistent examples of good character).” Stephenson v. State, 29

N.E.3d 111, 122 (Ind. 2015) (citing Cardwell, 895 N.E.2d at 1222).

[7] The nature of the offense involves the details and circumstances of the crime

and the defendant’s participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App.

2017). Dealing in Methamphetamine is a Level 2 felony if the amount of the

drug is at least ten grams. I.C. § 35-48-4-1.1(a)(2). Malicoate possessed with

intent to deliver more than twice that amount of methamphetamine,

specifically, 26.5 grams.

[8] The character of the offender is found in what courts learn of the offender’s life

and conduct. Perry, 78 N.E.3d at 13. Malicoate’s decision to plead guilty

indicates some acceptance of responsibility for her actions; however, the

decision to plead guilty was likely pragmatic, as Malicoate was found in

possession of individually-packaged methamphetamine, a large quantity of

cash, an unlicensed handgun, MDMA pills, and digital scales with

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1938 | December 31, 2019 Page 4 of 6 methamphetamine residue. She admitted to her recent sales of an estimated

forty-eight pounds of methamphetamine. Finally, her decision to flee instead of

fulfilling her promise to cooperate with police does not speak well of her

character.

[9] To the extent that Malicoate argues “the trial court gave no weight to her lack

of criminal history, no weight to the hardship upon her dependents, no weight

to her physical health issues, and absolutely no weight for her guilty plea,”

Appellant’s Brief at 15, we cannot provide the requested relief. The weight

given to the trial court’s reasons for imposing a sentence is not subject to

appellate review. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified

on reh’g, 875 N.E.2d 218. Malicoate did not have a felony criminal history.

However, she had not remained a law-abiding citizen up until the current

offense.

[10] Having reviewed the matter, we conclude that the trial court did not impose an

inappropriate sentence under Appellate Rule 7(B), and the sentence does not

warrant appellate revision. Accordingly, we decline to disturb the sentence

imposed by the trial court.

Conclusion [11] The sentence imposed upon Malicoate is not inappropriate.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1938 | December 31, 2019 Page 5 of 6 [12] Affirmed.

Kirsch, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1938 | December 31, 2019 Page 6 of 6