MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 24 2019, 9:01 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 Leanna Weissmann Curtis T. Hill, Jr. Lawrenceburg, Indiana Attorney General of Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Bruce L. Thomas, April 24, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2774 v. Appeal from the Switzerland Circuit Court State of Indiana, The Honorable W. Gregory Coy, Appellee-Plaintiff. Judge Trial Court Cause No. 78C01-1804-F4-164
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2774| April 24, 2019 Page 1 of 7 Statement of the Case
[1] Bruce Thomas (“Thomas”) appeals the sentence imposed after he pled guilty to
Level 5 felony dealing in methamphetamine1 and to being an habitual offender.2
Thomas argues that his sentence is inappropriate in light of the nature of the
offense and his character. Concluding that Thomas’ sentence is not
inappropriate, we affirm his sentence.
[2] We affirm.
Issue
Whether Thomas’ sentence is inappropriate.
Facts
[3] On April 24, 2018, the Switzerland County Sheriff’s Office received a
complaint from a woman accusing Thomas of selling methamphetamine to her
husband. Law enforcement questioned the husband, and he informed them
that he had seen Thomas with a “bunch” of methamphetamine at his apartment
that day. (App. Vol. 2 at 26).
1 IND. CODE § 35-48-4-1.1. 2 I.C. § 35-50-2-8.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2774| April 24, 2019 Page 2 of 7 [4] Based on this information, law enforcement officials obtained a search warrant
for Thomas’ apartment and executed it the following day. In executing the
search warrant, law enforcement discovered methamphetamine “packaged in
plastic in a manner to be sold.” (App. Vol. 2 at 29). They also found pills,
marijuana, syringes, digital scales, glass smoking pipes, and a handgun and
ammunition in Thomas’ apartment. Thomas admitted that he had possessed
and sold methamphetamine out of his apartment on “multiple occasions.”
(App. Vol. 2 at 29).
[5] The State charged Thomas with two counts of Level 4 felony dealing in
methamphetamine, Level 5 felony possession of methamphetamine, two counts
of Level 6 felony possession of a controlled substance, Level 6 felony unlawful
possession of a syringe, Level 6 felony maintaining a common nuisance, Level
6 felony theft, Class B misdemeanor possession of marijuana, and Class C
misdemeanor possession of paraphernalia. The State also alleged that Thomas
was an habitual offender.
[6] Thomas entered into an open plea agreement with the State wherein nine of the
ten counts were dropped in exchange for Thomas’ admission to Level 5 felony
dealing in methamphetamine and the habitual offender allegation. The
agreement left sentencing to the trial court’s discretion with a maximum term of
ten (10) years, and the State agreed not to contest a sentence modification after
Thomas served half of his sentence.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2774| April 24, 2019 Page 3 of 7 [7] At the sentencing hearing, the trial court found both mitigating and aggravating
factors present. The trial court identified the following mitigating factors: (1)
Thomas’ guilty plea saved the expense of a jury trial; (2) the undue hardship
that imprisonment would yield to him or his family; (3) he was a victim of a
violent crime, which led him to battle depression and turn to using
methamphetamine; (4) his completion of an eight-week substance abuse course
while in jail; (5) his remorse; (6) his attitude indicated that he is less likely to
commit another crime in the future; and (7) his good behavior while
incarcerated in jail. The trial court identified the following aggravating factors:
(1) Thomas’ prior criminal history of five misdemeanor convictions and two
felony convictions; (2) all of his convictions involved alcohol and/or drugs; (3)
he has been placed on probation seven times and had his probation revoked at
least once. The trial court then found that the aggravating factors outweighed
the mitigating factors and that Thomas was not likely to respond affirmatively
to probation. The trial court sentenced Thomas to six (6) years for the Level 5
felony conviction and enhanced that sentence by four (4) years for his habitual
offender adjudication, for a total executed term of ten (10) years in the
Department of Correction. Thomas now appeals.
Decision
[8] Thomas argues that his sentence of ten years is inappropriate in light of the
nature of the offense and his character. This Court may revise a sentence if it is
inappropriate in light of the nature of the offense and the character of the
offender. Ind. Appellate Rule 7(B). “The 7(B) ‘appropriateness’ inquiry is a Court of Appeals of Indiana | Memorandum Decision 18A-CR-2774| April 24, 2019 Page 4 of 7 discretionary exercise of the appellate court’s judgment, not unlike the trial
court’s discretionary sentencing determination.” Knapp v. State, 9 N.E.3d 1274,
1291-92 (Ind. 2014), cert. denied. “On appeal, though, we conduct that review
with substantial deference and give due consideration to the trial court’s
decision—since the principal role of our review is to attempt to leaven the
outliers, and not to achieve a perceived correct sentence.” Id. at 1292 (internal
quotation marks, internal bracket, and citation omitted). “Appellate Rule 7(B)
analysis is not to determine whether another sentence is more appropriate but
rather whether the sentence imposed is inappropriate.” Conley v. State, 972
N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted),
reh’g denied. The defendant has the burden of persuading the appellate court
that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080
(Ind. 2006).
[9] “‘[R]egarding the nature of the offense, the advisory sentence is the starting
point the Legislature has selected as an appropriate sentence for the crime
committed.’” Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016) (quoting
Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (Ind. 2007)). Here, Thomas was convicted of a Level 5 felony and found to
be an habitual offender. The sentencing range for a Level 5 felony is “for a
fixed term of between one (1) and six (6) years, with the advisory sentence
being three (3) years.” I.C. § 35-50-2-6(b). IND. CODE § 35-50-2-8 states in
relevant part that, where a person has been convicted of a Level 5 felony and
found to be an habitual offender, the court shall sentence him to an additional
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2774| April 24, 2019 Page 5 of 7 fixed term that is between two (2) and six (6) years. I.C. § 35-50-2-8(i)(2).
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 24 2019, 9:01 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 Leanna Weissmann Curtis T. Hill, Jr. Lawrenceburg, Indiana Attorney General of Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Bruce L. Thomas, April 24, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2774 v. Appeal from the Switzerland Circuit Court State of Indiana, The Honorable W. Gregory Coy, Appellee-Plaintiff. Judge Trial Court Cause No. 78C01-1804-F4-164
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2774| April 24, 2019 Page 1 of 7 Statement of the Case
[1] Bruce Thomas (“Thomas”) appeals the sentence imposed after he pled guilty to
Level 5 felony dealing in methamphetamine1 and to being an habitual offender.2
Thomas argues that his sentence is inappropriate in light of the nature of the
offense and his character. Concluding that Thomas’ sentence is not
inappropriate, we affirm his sentence.
[2] We affirm.
Issue
Whether Thomas’ sentence is inappropriate.
Facts
[3] On April 24, 2018, the Switzerland County Sheriff’s Office received a
complaint from a woman accusing Thomas of selling methamphetamine to her
husband. Law enforcement questioned the husband, and he informed them
that he had seen Thomas with a “bunch” of methamphetamine at his apartment
that day. (App. Vol. 2 at 26).
1 IND. CODE § 35-48-4-1.1. 2 I.C. § 35-50-2-8.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2774| April 24, 2019 Page 2 of 7 [4] Based on this information, law enforcement officials obtained a search warrant
for Thomas’ apartment and executed it the following day. In executing the
search warrant, law enforcement discovered methamphetamine “packaged in
plastic in a manner to be sold.” (App. Vol. 2 at 29). They also found pills,
marijuana, syringes, digital scales, glass smoking pipes, and a handgun and
ammunition in Thomas’ apartment. Thomas admitted that he had possessed
and sold methamphetamine out of his apartment on “multiple occasions.”
(App. Vol. 2 at 29).
[5] The State charged Thomas with two counts of Level 4 felony dealing in
methamphetamine, Level 5 felony possession of methamphetamine, two counts
of Level 6 felony possession of a controlled substance, Level 6 felony unlawful
possession of a syringe, Level 6 felony maintaining a common nuisance, Level
6 felony theft, Class B misdemeanor possession of marijuana, and Class C
misdemeanor possession of paraphernalia. The State also alleged that Thomas
was an habitual offender.
[6] Thomas entered into an open plea agreement with the State wherein nine of the
ten counts were dropped in exchange for Thomas’ admission to Level 5 felony
dealing in methamphetamine and the habitual offender allegation. The
agreement left sentencing to the trial court’s discretion with a maximum term of
ten (10) years, and the State agreed not to contest a sentence modification after
Thomas served half of his sentence.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2774| April 24, 2019 Page 3 of 7 [7] At the sentencing hearing, the trial court found both mitigating and aggravating
factors present. The trial court identified the following mitigating factors: (1)
Thomas’ guilty plea saved the expense of a jury trial; (2) the undue hardship
that imprisonment would yield to him or his family; (3) he was a victim of a
violent crime, which led him to battle depression and turn to using
methamphetamine; (4) his completion of an eight-week substance abuse course
while in jail; (5) his remorse; (6) his attitude indicated that he is less likely to
commit another crime in the future; and (7) his good behavior while
incarcerated in jail. The trial court identified the following aggravating factors:
(1) Thomas’ prior criminal history of five misdemeanor convictions and two
felony convictions; (2) all of his convictions involved alcohol and/or drugs; (3)
he has been placed on probation seven times and had his probation revoked at
least once. The trial court then found that the aggravating factors outweighed
the mitigating factors and that Thomas was not likely to respond affirmatively
to probation. The trial court sentenced Thomas to six (6) years for the Level 5
felony conviction and enhanced that sentence by four (4) years for his habitual
offender adjudication, for a total executed term of ten (10) years in the
Department of Correction. Thomas now appeals.
Decision
[8] Thomas argues that his sentence of ten years is inappropriate in light of the
nature of the offense and his character. This Court may revise a sentence if it is
inappropriate in light of the nature of the offense and the character of the
offender. Ind. Appellate Rule 7(B). “The 7(B) ‘appropriateness’ inquiry is a Court of Appeals of Indiana | Memorandum Decision 18A-CR-2774| April 24, 2019 Page 4 of 7 discretionary exercise of the appellate court’s judgment, not unlike the trial
court’s discretionary sentencing determination.” Knapp v. State, 9 N.E.3d 1274,
1291-92 (Ind. 2014), cert. denied. “On appeal, though, we conduct that review
with substantial deference and give due consideration to the trial court’s
decision—since the principal role of our review is to attempt to leaven the
outliers, and not to achieve a perceived correct sentence.” Id. at 1292 (internal
quotation marks, internal bracket, and citation omitted). “Appellate Rule 7(B)
analysis is not to determine whether another sentence is more appropriate but
rather whether the sentence imposed is inappropriate.” Conley v. State, 972
N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted),
reh’g denied. The defendant has the burden of persuading the appellate court
that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080
(Ind. 2006).
[9] “‘[R]egarding the nature of the offense, the advisory sentence is the starting
point the Legislature has selected as an appropriate sentence for the crime
committed.’” Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016) (quoting
Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (Ind. 2007)). Here, Thomas was convicted of a Level 5 felony and found to
be an habitual offender. The sentencing range for a Level 5 felony is “for a
fixed term of between one (1) and six (6) years, with the advisory sentence
being three (3) years.” I.C. § 35-50-2-6(b). IND. CODE § 35-50-2-8 states in
relevant part that, where a person has been convicted of a Level 5 felony and
found to be an habitual offender, the court shall sentence him to an additional
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2774| April 24, 2019 Page 5 of 7 fixed term that is between two (2) and six (6) years. I.C. § 35-50-2-8(i)(2). The
trial court sentenced Thomas to six (6) years for the Level 5 conviction and an
additional four (4) years for the habitual offender enhancement, for a total
sentence of ten (10) years.
[10] Thomas argues that the nature of the offense does not support his ten-year
sentence. Specifically, he argues that his offense “tips towards the less serious
side of the spectrum.” (Thomas’ Br. 10). We disagree. The nature of Thomas’
offense involves him not only possessing, but also dealing methamphetamine
“multiple times” out of his apartment. (App. Vol. 2 at 29). As the trial court
noted, “any time a drug is dealt, there is a potential for harm to another human
being.” (Tr. 17). Law enforcement also discovered a substantial quantity of
other drugs and paraphernalia in his apartment. Additionally, this offense is
more serious since it is his second conviction for dealing drugs.
[11] When considering the character-of-the-offender prong of our inquiry, one
relevant consideration is the defendant’s criminal history. Rutherford v. State,
866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance of a defendant’s
prior criminal history will vary “based on the gravity, nature and number of
prior offenses as they relate to the current offense.” Smith v. State, 889 N.E.2d
261, 263 (Ind. 2008) (internal quotation marks and citation omitted).
[12] Thomas has a significant history of criminal convictions for alcohol and drug
related offenses. This history includes seven prior convictions, made up of five
misdemeanors and two felonies. One of his felony convictions was for dealing
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2774| April 24, 2019 Page 6 of 7 a controlled substance and the other was for maintaining a common nuisance.
Thomas has been placed on probation seven times and had his probation
revoked once. While we recognize that he has taken advantage of rehabilitative
opportunities in the instant case, his continued drug related behavior is
indicative of a failure to do so in the past and reflects poorly on his character.
See, e.g., Phelps v. State, 969 N.E.2d 1009, 1021 (Ind. Ct. App. 2012) (stating that
the defendant’s refusal to take advantage of rehabilitative efforts offered to him
reflected poorly on his character), trans. denied.
[13] Thomas has not persuaded us that the nature of the offense and his character
make his sentence inappropriate. Therefore, we affirm the sentence imposed by
the trial court.
[14] Affirmed.
Riley, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2774| April 24, 2019 Page 7 of 7