Brent Stephenson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 27, 2018
• Docket: 18A-CR-1438
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Dec 27 2018, 10:31 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Madison, Indiana Attorney General of Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brent Stephenson, December 27, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1438 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Jonathan N. Appellee-Plaintiff. Cleary, Judge Trial Court Cause No. 15D01-1709-F4-29

Tavitas, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1438 | December 27, 2018 Page 1 of 9 Case Summary

[1] Brent Stephenson appeals his sentence, received pursuant to his guilty plea for

dealing in cocaine, a Level 4 felony. We affirm.

Issue

[2] Stephenson raises one issue, which we restate as whether his sentence is

inappropriate.

Facts

[3] In March 2017, officers received information from a “concerned citizen” that

Stephenson was involved in selling cocaine and marijuana. Tr. Vol. II p. 43.

Detective Nick Beetz of the Lawrenceburg Police Department testified that

officers began investigating Stephenson when they heard that he was “again

involved in illegal drug activity.” Id. at 27. Officers were familiar with

Stephenson based on previous encounters between February 14, 2011, and

March 18, 2011, in which officers participated in several controlled buys with

Stephenson. During that time, Stephenson also sold heroin to an individual

who later died as a result of an overdose. 1

[4] Officers continued to receive information about Stephenson’s activity selling

narcotics through July 2017 from a confidential informant. Then, in August 28,

1 For this 2011 offense, Stephenson pled guilty to Count I, dealing in a narcotic drug, a Class B felony, and Count II, reckless homicide, a Class C felony, under Cause No. 15C01-1103-FA-4. Stephenson was sentenced to twenty years, with thirteen years suspended on Count I, and eight years with four years suspended on Count II. Stephenson was released from prison in March 2016.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1438 | December 27, 2018 Page 2 of 9 2017, officers responded to a domestic incident at Stephenson’s mother’s

residence in Manchester. When officers arrived, Cynthia Dudley, Stephenson’s

mother, and Michelle Dudley, Stephenson’s sister, were at the residence, but

Stephenson had fled. Officers conducted a search of the residence and found

drugs, drug paraphernalia, and an empty handgun box. The officers believed

the items belonged to Stephenson. The following day, officers issued a

charging information and charged Stephenson with Count I, possession of a

firearm by a serious violent felon, a Level 4 felony; Count II, intimidation, a

Level 5 felony; and Count III, pointing a firearm, a Level 6 felony. 2 Officers

issued an arrest warrant for Stephenson and remained in contact with their

informant who was providing information on Stephenson.

[5] Officers made attempts to locate Stephenson with no success. Officers had

reason to believe that Stephenson was aware of the warrant and that he was

“laying low.” Id. at 42. On September 1, 2017, officers conducted a controlled

purchase of one gram of cocaine from Stephenson in Lawrenceburg for $100.

A confidential informant arranged the purchase with Stephenson via text

message. When the confidential informant arrived to purchase the cocaine

from Stephenson, Sandra Holland (“Sandra”) brought the cocaine out to the

confidential informant wrapped up in a plastic bag that was inside a diaper.

2 On March 26, 2018, Stephenson pleaded guilty to an amended Count II, intimidation, a Level 5 felony under Cause No. 15C01-1708-F4-27. On this charge, Stephenson was sentenced to six years suspended to be served consecutive to the nine years imposed on his probation revocation sentence under Cause No. 15C01- 1103-FA-4.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1438 | December 27, 2018 Page 3 of 9 Sandra indicated that she got the drugs from Stephenson. Sandra and her

husband, Ry Holland (“Ry”), were also both charged for offenses related to

their involvement with the transaction. 3

[6] After the transaction, officers observed Stephenson get into a van with Sandra

and Ry. Officers initiated a traffic stop of the van. Stephenson fled from the

van, and officers pursued him. Officers, with canine support, were ultimately

able to capture Stephenson and took him into custody. The two fifty-dollar bills

that the confidential informant gave to Sandra during the transaction were

found in Stephenson’s wallet when Stephenson was taken into custody.

Officers had written down the serial numbers of the two fifty-dollar bills they

used in the transaction and were able to verify the bills were the same as those

in Stephenson’s wallet. Officers also found a black backpack that belonged to

Stephenson in Sandra and Ry’s home that contained multiple drug and drug

paraphernalia items, including marijuana, a folded brown plastic bag, 4 two

partial white round or oval tablets, and a glass pipe. One tablet tested positive

for suboxone, and the other tested positive for buprenorphine.

[7] Stephenson was charged with Count I, dealing in cocaine, a Level 5 felony;

Count II, dealing in cocaine, a Level 4 felony; Count III, resisting law

enforcement, a Class A misdemeanor; Count VII, possession of a narcotic drug,

3 Specific information regarding the charges of Sandra and Ry have been omitted from this opinion. 4 This plastic bag was the same type as the plastic bag in which the cocaine was delivered.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1438 | December 27, 2018 Page 4 of 9 a Level 6 felony; Count VIII, possession of a narcotic drug, a Level 5 felony;

Count IX, possession of a controlled substance, a Class A misdemeanor; Count

X, possession of a controlled substance, a Level 6 felony; Count XI, possession

of marijuana less than thirty grams, a Class B misdemeanor; and Count XII,

possession of paraphernalia, a Class C misdemeanor. 5 Stephenson pleaded

guilty to an amended Count II, dealing in cocaine, a Level 4 felony, and all

other counts were dismissed.

[8] At sentencing, Stephenson testified regarding his extensive addiction history.

Stephenson was prescribed ADHD medication as a child; and, after his release

from “boy’s school,” began smoking marijuana. Id. at 51. Stephenson

indicated that his drug addiction “kinda [sic] led from there.” Id. Stephenson

admitted to using opiates in 2011 and continuous marijuana use after his release

from prison. Stephenson stated that he “didn’t want to get back into heroin

again,” so Stephenson went to the suboxone clinic until he could no longer

afford it and began buying off the streets. Id.

[9] The trial court sentenced Stephenson to eleven years executed. The trial court

found as mitigating factors: (1) Stephenson’s guilty plea; (2) that Stephenson

has a dependent son 6; and (3) that Stephenson expressed remorse. 7 The trial

5 The other counts in the charging information applied only to Sandra and Ry and have been omitted. 6 Stephenson’s son was one year old at the time of sentencing. 7 In finding this mitigator, the trial court said: “[B]ut the Court does note, that some of the statements today are in direct conflict to the jail recording played by the State.” Tr. Vol. II p. 66. During sentencing, the State produced video of Stephenson speaking with an unidentified female while in prison, saying first that his time

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1438 | December 27, 2018 Page 5 of 9 court found as aggravating factors: (1) that Stephenson was on probation when

the felony was committed; and (2) Stephenson’s criminal history, which

included two adjudications as a delinquent. Stephenson now appeals.

Analysis

[10] Indiana Appellate Rule 7(B) provides that this court may 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.” The defendant bears the burden to persuade this

court that his or her sentence is inappropriate. Wilson v. State, 966 N.E.2d 1259,

1266 (Ind. Ct. App. 2012) (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

2006)), trans. denied.

[11] In Indiana, trial courts can tailor an appropriate sentence to the circumstances

presented; the trial court’s judgment receives “considerable deference.” Sanders

v. State, 71 N.E.3d 839, 844 (Ind. 2017) (quoting Cardwell v. State, 895 N.E.2d

1219, 1222 (Ind. 2008)). In conducting our review, we do not look to see

whether the defendant’s sentence is appropriate or “if another sentence might

be more appropriate; rather, the question is whether the sentence imposed is

inappropriate.” Sanders, 71 N.E.3d at 844 (citing King v. State, 894 N.E.2d 265,

268 (Ind. Ct. App. 2008)).

in prison goes by very quickly, and even when he is given five or six years, it feels like eighteen months to him. Stephenson also told the unidentified female that he had been selling drugs to provide for his son.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1438 | December 27, 2018 Page 6 of 9 [12] We look to the statutory ranges established for the classification of the offense.

Stephenson pleaded guilty to an amended Count II, dealing in cocaine, a Level

4 felony. The sentence for a Level 4 felony ranges from two years to twelve

years, with an advisory sentence of six years. Here, the trial court imposed an

eleven-year sentence.

[13] We first review the nature of Stephenson’s offense. Stephenson pleaded guilty

to dealing in cocaine, a Level 4 felony, after he sold cocaine to a confidential

informant in a controlled buy. At the time of the controlled buy, Stephenson

had a pending arrest warrant for his charges of possession of a firearm by a

serious violent felon, a Level 4 felony; intimidation, a Level 5 felony; and

pointing a firearm, a Level 6 felony, from a domestic incident that had taken

place only a few days before the controlled buy. The evidence indicated that

Stephenson was aware of these charges and was trying to avoid police.

[14] Next, we consider Stephenson’s character. Stephenson’s criminal history does

not reflect well upon his character. Stephenson was adjudicated twice as a

delinquent for an act that would be considered theft if committed by an adult, a

Class D felony, and an act that would be considered intimidation if committed

by an adult, a Class D felony. According to Stephenson’s presentence

investigation report, as an adult, Stephenson has been convicted of operating a

motor vehicle without ever receiving a license, a Class C misdemeanor; illegal

consumption of an alcoholic beverage, a Class C misdemeanor; illegal

possession of an alcoholic beverage, a Class C misdemeanor; visiting a

common nuisance, a Class B misdemeanor; dealing cocaine or narcotic drug

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1438 | December 27, 2018 Page 7 of 9 within 1,000 feet of family housing complex, a Class B felony 8; reckless

homicide, a Class C felony; maintaining a common nuisance, a Class D felony;

intimidation, a Level 5 felony; and the instant offenses.

[15] Finally, the State’s evidence regarding Stephenson’s conversation with the

unidentified female in prison does not bode well for Stephenson’s character.

Stephenson indicated in that conversation that serving five or six years in prison

was not meaningful to him because it went by so quickly. In the conversation,

Stephenson also discussed his perceived need to continue to sell drugs to

provide for his son. As the trial court stated, “the desire, the plan, the amount

of work that goes into dealing drugs . . . .if [Stephenson] would have put the

same work into a legitimate job, [Stephenson] could have stayed out of

incarceration, [Stephenson] could have supported his son . . . .” Tr. Vol. II p.

69.

[16] It appears that the trial court did not believe that sentencing Stephenson to the

advisory sentence would help Stephenson understand the seriousness of his

actions. This is especially true in light of the fact that Stephenson was again

selling drugs just over one year after his release from prison for a transaction

that ultimately resulted in a death caused by overdose. We acknowledge that

the trial court did sentence Stephenson to the higher end of the sentencing range

8 The presentence investigation report indicates that Stephenson was convicted of a Class A felony; however, the negotiated plea agreement provided on appeal indicates that Stephenson pleaded guilty to a Class B felony.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1438 | December 27, 2018 Page 8 of 9 for Stephenson’s offense, but Stephenson’s prior sentences have had no

reformative effect on his behavior. We do not find this eleven-year sentence to

be inappropriate in light of all the circumstances.

Conclusion

[17] Stephenson failed to prove this sentence is inappropriate. We affirm.

Affirmed.

Brown, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1438 | December 27, 2018 Page 9 of 9