MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 07 2019, 9:21 am regarded as precedent or cited before any 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 James A. Shoaf Curtis T. Hill, Jr. Columbus, Indiana Attorney General of Indiana Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brian Stewart, June 7, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2353 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable James D. Worton, Appellee-Plaintiff. Judge Trial Court Cause No. 03D01-1801-F6-379 03D01-1801-F6-105
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2353 | June 7, 2019 Page 1 of 8 Case Summary [1] Brian J. Stewart appeals his sentence, received pursuant to his guilty plea, for
one count of possession of methamphetamine, a Level 6 felony, and two counts
of theft, Level 6 felonies. We affirm.
Issue [2] Stewart raises one issue, which we restate as whether his sentence is
inappropriate in light of the nature of his offenses and his character.
Facts 1 [3] On January 7, 2018, a police officer responded to a report of a suspicious
vehicle on grounds owned by the Indianapolis Museum of Art in Columbus,
Indiana. On the scene, the officer located a Ford Explorer with its engine
running and two occupants inside. The officer observed a male sitting in the
driver’s seat and a female in the passenger’s seat. The officer recognized
Stewart and Norma Holley (“Holley”) from previous encounters. Stewart
awakened after the officer identified himself. The officer observed several items
in the vehicle, including a large wooden jewelry box, pieces of jewelry, and
several other miscellaneous items.
1 Stewart did not obtain the guilty plea hearing transcript for this appeal, and it appears that Stewart and the State cite to the probable cause affidavit for the statement of facts in their briefs. We, therefore, will do the same.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2353 | June 7, 2019 Page 2 of 8 [4] Stewart admitted to the officer that he did not have permission to be on the
property. Stewart then accelerated the vehicle in an attempt to flee. The officer
was able to open the vehicle’s door and told Stewart to place the vehicle in
park, and Stewart complied. Stewart was then removed from the vehicle and
placed in handcuffs. Another officer arrived at the scene and, as he opened the
door to the vehicle to handcuff Holley, a handgun fell from between the
passenger seat and door. Upon further investigation, it was determined that
neither Holley nor Stewart had a permit to carry a handgun.
[5] Officers obtained a warrant to search the vehicle. They discovered official
documents with Stephen Riga’s name on them. Officers later learned that
Riga’s residence was burglarized on January 6, 2018. Behind the driver’s seat,
officers also found a black gym bag, which contained seven bags with ten
syringes each. In addition, the gym bag contained a makeup bag, which
contained more syringes, spoons with white residue, a scale with white residue,
a clear bag of white powder, and two pills that the officer identified as
hydrocodone.
[6] On January 7, 2018, Stewart was charged with unlawful possession of a
syringe, a Level 6 felony; possession of methamphetamine, a Level 6 felony;
possession of a controlled substance, a Level 6 felony; carrying a handgun
without a license, a Class A misdemeanor; criminal trespass, a Class A
misdemeanor; and conversion, a Class A misdemeanor.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2353 | June 7, 2019 Page 3 of 8 [7] During the investigations, officers learned that Stewart and Holley were storing
items in a storage unit. Officers later obtained a search warrant for the storage
unit. In the storage unit, they recovered property stolen from Manuel Gonzalez
and Jerry and Beth Sullivan. The officers recovered gardening tools, vehicle
titles, social security cards, and passports.
[8] During a related subsequent investigation, an officer obtained a search warrant
for another property in Columbus. The owner of that property had given
Stewart and Holley permission to keep items in his detached garage. There,
officers recovered property reported stolen by Lisa Thayer, Christopher and
Nora Murr, and Grant Gaddis. The officers recovered flat screen televisions, a
luggage bag, clothing, and a stolen automobile.
[9] On January 24, 2018, Stewart was charged under a separate cause number with
one count of receiving stolen automobile parts, a Level 6 felony; three counts of
theft, Level 6 felonies; and two counts of conversion, Class A misdemeanors.
[10] On August 13, 2018, Stewart pleaded guilty to possession of
methamphetamine, a Level 6 felony, and to two counts of theft, Level 6
felonies. The remaining counts were dismissed.
[11] At sentencing, Stewart testified that he was in a rehabilitation facility in Florida
from April to July 2017 for drug addiction. After Stewart returned to Indiana
from Florida, he was fired from his job due to his lack of attendance. Stewart
“didn’t even look” for a job after he was terminated. Tr. Vol II p. 10. To
support his daily drug use, Stewart “st[ole] things and s[old] them.” Id.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2353 | June 7, 2019 Page 4 of 8 [12] The trial court found the following aggravators: (1) Stewart’s criminal history;
(2) Stewart’s probation revocation; and (3) that Stewart had the opportunity for
treatment in the past, outside of a penal facility, and had not been successful.
The trial court did not find any mitigating factors. The trial court sentenced
Stewart to two years for possession of methamphetamine and two years each
on both counts of theft, all to be served consecutively for an aggregate sentence
of six years. The trial court recommended that Stewart be placed in Purposeful
Incarceration 2 and in a therapeutic community. Stewart now appeals.
Analysis [13] Stewart maintains that his sentence is inappropriate and invites us to revise it
pursuant to Indiana Appellate Rule 7(B), which provides that we 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.
2 Although Purposeful Incarceration is not defined in the record, in its Order the trial court stated that it “recommends to the Indiana Department of Corrections that [Stewart] be placed in Purposeful Incarceration and placed in a therapeutic community. Upon successful completion of the clinically appropriate substance treatment program as determined by [the Indiana Department of Corrections], the court will consider a modification to this sentence.” Appellant’s App. Vol. II p. 131.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 07 2019, 9:21 am regarded as precedent or cited before any 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 James A. Shoaf Curtis T. Hill, Jr. Columbus, Indiana Attorney General of Indiana Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brian Stewart, June 7, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2353 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable James D. Worton, Appellee-Plaintiff. Judge Trial Court Cause No. 03D01-1801-F6-379 03D01-1801-F6-105
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2353 | June 7, 2019 Page 1 of 8 Case Summary [1] Brian J. Stewart appeals his sentence, received pursuant to his guilty plea, for
one count of possession of methamphetamine, a Level 6 felony, and two counts
of theft, Level 6 felonies. We affirm.
Issue [2] Stewart raises one issue, which we restate as whether his sentence is
inappropriate in light of the nature of his offenses and his character.
Facts 1 [3] On January 7, 2018, a police officer responded to a report of a suspicious
vehicle on grounds owned by the Indianapolis Museum of Art in Columbus,
Indiana. On the scene, the officer located a Ford Explorer with its engine
running and two occupants inside. The officer observed a male sitting in the
driver’s seat and a female in the passenger’s seat. The officer recognized
Stewart and Norma Holley (“Holley”) from previous encounters. Stewart
awakened after the officer identified himself. The officer observed several items
in the vehicle, including a large wooden jewelry box, pieces of jewelry, and
several other miscellaneous items.
1 Stewart did not obtain the guilty plea hearing transcript for this appeal, and it appears that Stewart and the State cite to the probable cause affidavit for the statement of facts in their briefs. We, therefore, will do the same.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2353 | June 7, 2019 Page 2 of 8 [4] Stewart admitted to the officer that he did not have permission to be on the
property. Stewart then accelerated the vehicle in an attempt to flee. The officer
was able to open the vehicle’s door and told Stewart to place the vehicle in
park, and Stewart complied. Stewart was then removed from the vehicle and
placed in handcuffs. Another officer arrived at the scene and, as he opened the
door to the vehicle to handcuff Holley, a handgun fell from between the
passenger seat and door. Upon further investigation, it was determined that
neither Holley nor Stewart had a permit to carry a handgun.
[5] Officers obtained a warrant to search the vehicle. They discovered official
documents with Stephen Riga’s name on them. Officers later learned that
Riga’s residence was burglarized on January 6, 2018. Behind the driver’s seat,
officers also found a black gym bag, which contained seven bags with ten
syringes each. In addition, the gym bag contained a makeup bag, which
contained more syringes, spoons with white residue, a scale with white residue,
a clear bag of white powder, and two pills that the officer identified as
hydrocodone.
[6] On January 7, 2018, Stewart was charged with unlawful possession of a
syringe, a Level 6 felony; possession of methamphetamine, a Level 6 felony;
possession of a controlled substance, a Level 6 felony; carrying a handgun
without a license, a Class A misdemeanor; criminal trespass, a Class A
misdemeanor; and conversion, a Class A misdemeanor.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2353 | June 7, 2019 Page 3 of 8 [7] During the investigations, officers learned that Stewart and Holley were storing
items in a storage unit. Officers later obtained a search warrant for the storage
unit. In the storage unit, they recovered property stolen from Manuel Gonzalez
and Jerry and Beth Sullivan. The officers recovered gardening tools, vehicle
titles, social security cards, and passports.
[8] During a related subsequent investigation, an officer obtained a search warrant
for another property in Columbus. The owner of that property had given
Stewart and Holley permission to keep items in his detached garage. There,
officers recovered property reported stolen by Lisa Thayer, Christopher and
Nora Murr, and Grant Gaddis. The officers recovered flat screen televisions, a
luggage bag, clothing, and a stolen automobile.
[9] On January 24, 2018, Stewart was charged under a separate cause number with
one count of receiving stolen automobile parts, a Level 6 felony; three counts of
theft, Level 6 felonies; and two counts of conversion, Class A misdemeanors.
[10] On August 13, 2018, Stewart pleaded guilty to possession of
methamphetamine, a Level 6 felony, and to two counts of theft, Level 6
felonies. The remaining counts were dismissed.
[11] At sentencing, Stewart testified that he was in a rehabilitation facility in Florida
from April to July 2017 for drug addiction. After Stewart returned to Indiana
from Florida, he was fired from his job due to his lack of attendance. Stewart
“didn’t even look” for a job after he was terminated. Tr. Vol II p. 10. To
support his daily drug use, Stewart “st[ole] things and s[old] them.” Id.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2353 | June 7, 2019 Page 4 of 8 [12] The trial court found the following aggravators: (1) Stewart’s criminal history;
(2) Stewart’s probation revocation; and (3) that Stewart had the opportunity for
treatment in the past, outside of a penal facility, and had not been successful.
The trial court did not find any mitigating factors. The trial court sentenced
Stewart to two years for possession of methamphetamine and two years each
on both counts of theft, all to be served consecutively for an aggregate sentence
of six years. The trial court recommended that Stewart be placed in Purposeful
Incarceration 2 and in a therapeutic community. Stewart now appeals.
Analysis [13] Stewart maintains that his sentence is inappropriate and invites us to revise it
pursuant to Indiana Appellate Rule 7(B), which provides that we 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.
2 Although Purposeful Incarceration is not defined in the record, in its Order the trial court stated that it “recommends to the Indiana Department of Corrections that [Stewart] be placed in Purposeful Incarceration and placed in a therapeutic community. Upon successful completion of the clinically appropriate substance treatment program as determined by [the Indiana Department of Corrections], the court will consider a modification to this sentence.” Appellant’s App. Vol. II p. 131.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2353 | June 7, 2019 Page 5 of 8 [14] 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. Ct. App. 2017) (quoting Cardwell v. State, 895
N.E.2d 1219, 1222 (Ind. 2008)), trans. denied. 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)).
[15] When reviewing a sentence, we look to the statutory ranges established for the
classification of the offenses. The sentence for a Level 6 felony ranges from six
months to two and a half years, with an advisory sentence of one year. Ind.
Code § 35-50-2-7. Here, the trial court imposed three consecutive two-year
sentences for possession of methamphetamine and two counts of theft, all Level
6 felonies.
[16] “[T]he advisory sentence is the starting point the Legislature has selected as an
appropriate sentence.” Green v. State, 65 N.E.3d 620, 637-38 (Ind. Ct. App.
2016), trans. denied. A deviation from the advisory sentence, when determining
the appropriateness of a sentence, requires us to examine whether there is
anything more or less egregious about the offense committed by Stewart that
“makes it different from the ‘typical’ offense accounted for by the legislature
when it set the advisory sentence.” See Holloway v. State, 950 N.E.2d 803, 807
(Ind. Ct. App. 2011) (quoting Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App.
2008), trans. denied).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2353 | June 7, 2019 Page 6 of 8 [17] Pursuant to Indiana Appellate Rule 7(B), we first review the nature of Stewart’s
offenses. Stewart contends that “there does not appear to be anything
particularly aggravating about [his case] . . . that would set it apart as . . . more
heinous or aggravated than any other possession [conviction]” for
methamphetamine or theft. Appellant’s Br. p. 12. Stewart admitted that he
was unemployed and committed the thefts to fuel his drug addiction. Stewart
was arrested after he was found asleep in the driver’s seat of a running vehicle
and in possession of a handgun without a license. After searching the vehicle,
officers found numerous syringes, spoons with white residue, a scale with white
residue, and a clear bag containing a white powder. Officers also found stolen
property that belonged to several people from four separate burglaries in
Stewart’s storage unit and a detached garage.
[18] Next, we consider Stewart’s character. “When considering the character of the
offender, one relevant fact is the defendant’s criminal history.” Garcia v. State,
47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied. Stewart’s refusal to
conform his conduct reflects poorly on his character. Stewart began consuming
alcohol as a teenager and “picked up” “harder drugs” over the years. Tr. Vol.
II p. 8. His criminal history includes convictions for illegal consumption of an
alcoholic beverage, resisting law enforcement, and operating a vehicle with an
alcohol concentration equivalent of .08% or greater. The instant offenses
resulted from his use of methamphetamine. Additionally, according to the pre-
sentence investigation report, Stewart’s probation has been revoked in the past.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2353 | June 7, 2019 Page 7 of 8 [19] Stewart’s criminal history shows that Stewart stole from multiple people to fuel
his drug addiction. Despite this history, the trial court only sentenced Stewart
to an aggregate sentence of six years and recommended that Stewart be placed
in Purposeful Incarceration. Thus, the trial court gave Stewart another
opportunity to receive treatment. Stewart has not convinced us that his
sentence is inappropriate in light of the nature of the offenses and his character.
Conclusion [20] Stewart has failed to meet his burden of demonstrating that his sentence is
inappropriate in light of the nature of his offenses and his character. We affirm.
[21] Affirmed.
Crone, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2353 | June 7, 2019 Page 8 of 8