Corey S. Mack v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 17, 2020
• Docket: 20A-CR-941
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 17 2020, 7:57 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Courtney L. Staton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Corey S. Mack, September 17, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-941 v. Appeal from the Miami Circuit Court State of Indiana, The Honorable Appellee-Plaintiff. Timothy P. Spahr, Judge Trial Court Cause No. 52C01-1804-F2-8

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-941 | September 17, 2020 Page 1 of 9 [1] Corey S. Mack (“Mack”) pleaded guilty to possession of methamphetamine 1 as

a Level 5 felony and was sentenced to six years with four years executed and

two years suspended to probation. Mack appeals and raises the following

restated issue for our review: whether his sentence is inappropriate in light of

the nature of the offense and the character of the offender.

[2] We affirm.

Facts and Procedural History [3] On March 27, 2018, officers with the Peru Police Department were contacted

by a confidential informant who told them that Mack had agreed to sell her “an

ounce of crystal methamphetamine for $1,100.” Appellant’s Conf. App. Vol. 2 at

133. Later that afternoon, Mack exchanged approximately 27.86 grams of

methamphetamine for $1,100 of photocopied buy money provided by the Peru

Police Department to the confidential informant. Id. at 92, 133. After the

transaction had been completed and Mack had left the location, he was

followed by the police and stopped. Id. at 133. After the police took Mack into

custody, the police recovered the buy money and a small amount of marijuana

from inside his vehicle. Id.

[4] On April 3, 2018, the State charged Mack with Level 2 felony dealing in

methamphetamine, Level 3 felony possession of methamphetamine, and Class

1 See Ind. Code § 35-48-4-6.1(b).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-941 | September 17, 2020 Page 2 of 9 B misdemeanor possession of marijuana. Id. at 18-20. On January 30, 2020,

Mack entered into a plea agreement with the State in which he agreed to plead

guilty to Level 5 felony possession of methamphetamine, a lesser-included

offense of the originally charged Level 3 felony. Id. at 109-10. In exchange, the

State agreed to dismiss the remaining counts and recommend that the trial court

sentence Mack to the Indiana Department of Correction (“DOC”) for a period

of six years to be served with a cap of four years executed and two years

suspended to supervised probation. Id. at 109-10; Tr. Vol. II 68-69. The trial

court took the plea agreement under advisement and directed the Miami

County Probation Department to complete a presentence investigation report

(“PSI”). Tr. Vol. II at 17.

[5] As part of the PSI, the Miami Probation Department compiled a list of Mack’s

criminal history. Appellant’s Conf. App. Vol. 2 at 117-20. As a juvenile, he had

one delinquency adjudication for reckless driving. Id. at 117, 120. As an adult,

Mack had been arrested thirteen times and had been convicted of five prior

felonies and four prior misdemeanors. Id. at 120. Specifically, Mack had

convictions for Class C felony possession of a controlled substance, Class D

felony possession of marijuana, Class D felony dealing in marijuana, Class C

felony conspiracy to commit dealing in marijuana, Class C misdemeanor

operating a vehicle while intoxicated, Class B misdemeanor criminal mischief,

Class A misdemeanor invasion of privacy, and Class A misdemeanor domestic

battery. Id. at 117-20. Mack’s criminal history also included multiple occasions

Court of Appeals of Indiana | Memorandum Decision 20A-CR-941 | September 17, 2020 Page 3 of 9 where he had violated the terms and conditions of his probation, which resulted

in revocation of that probation. Id. at 117-20.

[6] The PSI also contained information about Mack’s substance abuse history.

Mack reported that his “drug of choice” was marijuana and that he had last

used marijuana in January 2018, which was shortly before he was arrested for

the instant offense. Id. at 122. Mack also admitted he had used cocaine in the

past but was unsure as to how many times; he had tested positive for cocaine

while on probation in 2010. Id. As a result of his prior convictions for drug-

related offenses, Mack was ordered to complete outpatient therapy, which he

completed at Community Counseling in 2000. Id. In 2009, he was referred to

Thinking for a Change and successfully completed that program in April 2010.

Id. Mack denied using any other substances and stated he “does not feel he has

a problem with the use of alcohol or drugs.” Id.

[7] On March 26, 2020, the trial court accepted the plea agreement and sentenced

Mack. Tr. Vol. II at 62, 67. The trial court found Mack’s lengthy criminal

history and that fact that he was on probation when he committed the present

offense as aggravating circumstances and found the fact that Mack had pleaded

guilty and saved the State the time and expense of a trial to be a mitigating

circumstance. Appellant’s Conf. App. Vol. 2 at 155-56. However, the trial court

found Mack’s guilty plea to be of little mitigating weight because he received a

benefit of having two charges dismissed and was pleading to a reduced count.

Id. at 155; Tr. Vol. II at 63. The trial court then sentenced Mack to an aggregate

six-year sentence with four years executed in the DOC and two years

Court of Appeals of Indiana | Memorandum Decision 20A-CR-941 | September 17, 2020 Page 4 of 9 suspended to formal probation. Tr. Vol. II at 67; Appellant’s Conf. App. Vol. 2 at

155-56. Mack now appeals.

Discussion and Decision [8] Mack asserts that his sentence is inappropriate. Pursuant to 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 [c]ourt finds that the sentence is

inappropriate in light of the nature of the offense and the character of the

offender.” Our Supreme Court has explained that the principal role of appellate

review should be to attempt to leaven the outliers, “not to achieve a perceived

‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

2008). We independently examine the nature of Mack’s offense and his

character under Appellate Rule 7(B) with substantial deference to the trial

court’s sentence. Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015). “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 test

is whether the sentence is ‘inappropriate.’” Barker v. State, 994 N.E.2d 306, 315

(Ind. Ct. App. 2013), trans. denied. Whether a sentence is inappropriate

ultimately depends upon “the culpability of the defendant, the severity of the

crime, the damage done to others, and a myriad of other factors that come to

light in a given case.” Cardwell, 895 N.E.2d at 1224. Mack bears the burden of

persuading us that his sentence is inappropriate. Id.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-941 | September 17, 2020 Page 5 of 9 [9] Mack argues that the trial court’s ordering him to serve four years of his six-year

sentence in the DOC is inappropriate in light of the nature of his offense and his

character. He asserts that his offense was not egregious or otherwise

remarkable, and the quantity of methamphetamine he possessed was accounted

for in the elevation of his felony to a Level 5 felony. Mack further contends

that his sentence is inappropriate as to his character because he accepted

responsibility by pleading guilty, had a strong bond with his daughter and

believed missing a significant period of her childhood would be detrimental to

her development, and had shown a change in his thinking while in jail awaiting

trial.

[10] Here, Mack pleaded guilty to Level 5 felony possession of methamphetamine.

A person who commits a Level 5 felony shall be imprisoned for a fixed term of

between one and six years, with the advisory sentence being three years. Ind.

Code § 35-50-2-6(b). Therefore, the maximum sentence Mack could have

received from the trial court was six years. The trial court sentenced Mack to

an aggregate six-year sentence with four years executed in the DOC and two

years suspended to formal probation, which was the sentence recommended in

the plea agreement. Tr. Vol. II at 67; Appellant’s Conf. App. Vol. 2 at 109-10, 155-

56.

[11] As this court has recognized, the nature of the offense is found in the details

and circumstances of the commission of the offense and the defendant’s

participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). “When

determining the appropriateness of a sentence that deviates from an advisory

Court of Appeals of Indiana | Memorandum Decision 20A-CR-941 | September 17, 2020 Page 6 of 9 sentence, we consider whether there is anything more or less egregious about

the offense as committed by the defendant that ‘makes it different from the

typical offense accounted for by the legislature when it set the advisory

sentence.’” Moyer v. State, 83 N.E.3d 136, 142 (Ind. Ct. App. 2017) (quoting

Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011)), trans. denied.

Here, the evidence showed that Mack sold the confidential informant

approximately 27.86 grams of methamphetamine in exchange for $1,100.

Although he maintains that that “the quantity of methamphetamine [he

possessed] [was] accounted for in the elevation of the felony to a Level 5,” his

argument is unpersuasive. Appellant’s Br. at 8. Despite the fact that he

ultimately pleaded guilty to a Level 5 felony, Mack possessed approximately

27.86 grams of methamphetamine. The amount of methamphetamine required

to support a Level 5 felony is between five and ten grams. See Ind. Code § 35-

48-4-6.1(b)(1). Therefore, Mack possessed nearly three times the amount of

methamphetamine necessary to support his conviction for Level 5 felony

possession of methamphetamine. Mack’s offense was thus more egregious than

the “typical” offense of Level 5 felony possession of methamphetamine

accounted for by the legislature. See Holloway, 950 N.E.2d at 806-07 (“One

factor we consider when determining the appropriateness of a deviation from

the advisory sentence is whether there is anything more or less egregious about

the offense committed by the defendant that makes it different from the ‘typical’

offense accounted for by the legislature when it set the advisory sentence.”).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-941 | September 17, 2020 Page 7 of 9 [12] The character of the offender is found in what we learn of the offender’s life and

conduct. Perry, 78 N.E.3d at 13. When considering the character of the

offender, one relevant fact is the defendant’s criminal history. Johnson v. State,

986 N.E.2d 852, 857 (Ind. Ct. App. 2013). The evidence showed that Mack

had a lengthy criminal history consisting of convictions for Class C felony

possession of a controlled substance, Class D felony possession of marijuana,

Class D felony dealing in marijuana, Class C felony conspiracy to commit

dealing in marijuana, Class C misdemeanor operating a vehicle while

intoxicated, Class B misdemeanor criminal mischief, Class A misdemeanor

invasion of privacy, and Class A misdemeanor domestic battery. Appellant’s

Conf. App. Vol. 2 at 117-20. Significantly, nearly all of Mack’s criminal history is

drug related. “‘Even a minor criminal record reflects poorly on a defendant’s

character.’” Morris v. State, 114 N.E.3d 531, 539 (Ind. Ct. App. 2018) (quoting

Reis v. State, 88 N.E.3d 1099, 1105 (Ind. Ct. App. 2017)), trans. denied. When

comparing his criminal history to his current offense, Mack’s drug related

criminal history is significant and reflects poorly on his character.

[13] Mack’s criminal history also included multiple occasions where he had violated

the terms and conditions of his probation, resulting in revocation of that

probation. Appellant’s App. Vol. 2 at 117-20. He was also on probation at the

time he committed the present offense. Id. at 120. Mack also has been

previously committed to the DOC on three prior separate occasions. Id.

Despite these opportunities for rehabilitation, Mack continued to commit

crimes, most of which were drug related. Additionally, Mack had a history of

Court of Appeals of Indiana | Memorandum Decision 20A-CR-941 | September 17, 2020 Page 8 of 9 substance abuse that he had failed to remedy. Id. at 122. His “drug of choice”

was marijuana, and he reported that he had last used marijuana in January

2018, which was shortly before he was arrested for the instant offense. Id.

Mack also reported having used cocaine in the past and had tested positive for

cocaine in violation of his probation in 2010. Id. Notwithstanding his history

with illegal substances, Mack told the probation department that he did not

“feel he has a problem with the use of alcohol or drugs.” Id. As a result of his

prior convictions for drug-related offenses, Mack had been ordered to

participate in outpatient therapy at Community Counseling in 2000 and had

been referred to Thinking for a Change in 2010. Id. However, these programs

did not seem to change Mack’s behavior or lead to an opportunity for

rehabilitation.

[14] Further, although he pleaded guilty, he did not take full responsibility for his

crime. In providing his account of what occurred to the probation department,

Mack stated that he was “trapped into this by the police” and indicated that he

had been manipulated into committing his offense. Id. at 122-23. Mack has not

shown that his sentence is inappropriate in light of the nature of the offense and

the character of the offender. We, therefore, affirm the sentence imposed by the

trial court.

[15] Affirmed.

Pyle, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-941 | September 17, 2020 Page 9 of 9