Courtney L. Sharp v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 9, 2015
• Docket: 05A02-1411-CR-786
• Status: Published

Opinion

MEMORANDUM DECISION Jun 09 2015, 9:07 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brandon E. Murphy Gregory F. Zoeller Muncie, Indiana Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Courtney L. Sharp, June 9, 2015

Appellant-Defendant, Court of Appeals Case No. 05A02-1411-CR-786 v. Appeal from the Blackford Superior Court State of Indiana, The Honorable John N. Barry, Judge Appellee-Plaintiff. Trial Court Cause No. 05D01-1402-FC-59

Mathias, Judge.

[1] Courtney L. Sharp pleaded guilty to Class C felony possession of cocaine in

Blackford Superior Court and was sentenced to five years, with two years

executed and three years suspended to probation. Sharp appeals and claims: (1)

that the trial court abused its discretion in sentencing him; and (2) that the

Court of Appeals of Indiana | Memorandum Decision No. 05A02-1411-CR-786 | June 9, 2015 Page 1 of 12 sentence imposed by the trial court is inappropriate in light of the nature of the

offense and the character of the offender.

[2] We affirm.

Facts and Procedural History

[3] Shortly before midnight on February 24, 2014, Hartford City Police Officer

Jason Young (“Officer Young”) made a traffic stop of a vehicle in which Sharp

was a passenger. When Sharp opened the glove box to retrieve the vehicle’s

registration, Officer Young saw piece of folded, pink paper containing a leafy

material he recognized as marijuana. Sharp dropped the paper on the

floorboard, and Officer Young ordered Sharp to exit the vehicle and go to a

patrol car with another officer on the scene, Sergeant McKissack (“Sgt.

McKissack”). At this point, Sharp began to yell and complain about the

officers’ actions.

[4] Officer Young then looked inside the vehicle, at which point Sharp began to

physically resist Sgt. McKissack, apparently because Sgt. McKissack began to

perform a pat-down search of Sharp. When Officer Young went to help Sgt.

McKissack subdue Sharp, McKissack informed him that Sharp had a hard

object in the back of his pants. Officer Young located the object and attempted

to remove it from Sharp’s pants, but Sharp grabbed the object and held on to it.

The officers wrestled Sharp to the ground as he continued to hold on to the

object. Officer Young eventually pried the object from Sharp’s fingers. The

object was a plastic bag containing two smaller plastic bags. Inside the smaller

Court of Appeals of Indiana | Memorandum Decision No. 05A02-1411-CR-786 | June 9, 2015 Page 2 of 12 bags was marijuana and what was later determined to be eleven grams of

cocaine.

[5] As a result of this incident, the State charged Sharp the following day in four

counts: Count I, Class C felony possession of cocaine; Count II, Class A

misdemeanor possession of marijuana; Count III, Class A misdemeanor

resisting law enforcement; and Count IV, Class B misdemeanor disorderly

conduct. On September 25, 2014, Sharp reached an agreement with the State

whereby he would plead guilty to Count I, and the State would dismiss the

remaining charges and charges pending in two other cases in Blackford Circuit

Court. Pursuant to the plea agreement, sentencing was left to the discretion of

the trial court with the exception of a four-year cap on executed time. At the

guilty plea hearing, the trial court took the plea under advisement.

[6] At a sentencing hearing held on October 28, 2014, the trial court accepted the

plea and found the following aggravating circumstances: (1) Sharp had a prior

misdemeanor conviction in which his probation had been revoked; (2) Sharp’s

acts of resisting the efforts of law enforcement during his arrest in the present

case demonstrated “disdain for the authority of law enforcement,” from which

the trial court found that Sharp would not respond positively to a completely

suspended sentence; (3) Sharp had continued to use controlled substances while

the present case was pending; and (4) the court did not believe Sharp’s claims

that the eleven grams of cocaine found in his possession was for personal use,

further demonstrating that Sharp would not respond positively to a completely

suspended sentence. The trial court found as mitigating Sharp’s relatively young

Court of Appeals of Indiana | Memorandum Decision No. 05A02-1411-CR-786 | June 9, 2015 Page 3 of 12 age of twenty-five years and that he has two dependent children. Concluding

that the aggravating circumstances outweighed the mitigating circumstances,

the trial court sentenced Sharp to five years, with two years executed and three

years suspended to probation. Sharp now appeals.

I. Abuse of Sentencing Discretion

[7] Sharp claims that the trial court abused its discretion in sentencing him.

Generally speaking, sentencing decisions are left to the sound discretion of the

trial court, and we review the trial court’s decision only for an abuse of this

discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g,

875 N.E.2d 218. An abuse of discretion occurs if the decision is clearly against

the logic and effect of the facts and circumstances before the trial court. Id. The

trial court may abuse its discretion in sentencing in a number of ways,

including: (1) wholly failing to enter a sentencing statement, (2) entering a

sentencing statement that explains reasons for imposing the sentence but the

record does not support the reasons, (3) the sentencing statement omits reasons

that are clearly supported by the record and advanced for consideration, or (4)

the reasons given in the sentencing statement are improper as a matter of law.

Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012) (citing Anglemyer, 868

N.E.2d at 490-91).

[8] Sharp argues that the trial court abused its discretion by finding two aggravating

circumstances that were supported by the record: (1) that Sharp resisted law

enforcement on the date of his arrest, and (2) that the trial court did not believe

Sharp’s claim that the eleven grams of cocaine found on his person was for

Court of Appeals of Indiana | Memorandum Decision No. 05A02-1411-CR-786 | June 9, 2015 Page 4 of 12 personal use. Sharp also claims that the trial court failed to consider two

mitigating factors he claims were present.

A. Aggravating Circumstances

[9] With regard to the first challenged aggravating circumstance, Sharp argues that

by relying on his actions of resisting law enforcement, the trial court denied him

the full bargained benefit of his plea agreement, which dismissed the count

alleging that Sharp had committed Class A misdemeanor resisting law

enforcement. We disagree.

[10] Sharp refers us to nothing in his plea agreement that would preclude the trial

court from considering the nature and circumstances of his crime as an

aggravating circumstance. The fact that the nature and circumstances of his

crime for which Sharp pleaded guilty included acts that were the basis of

dismissed charges does not mean that the nature and circumstances of the crime

cannot be considered as aggravating.

[11] We addressed this issue in Corralez v. State, 815 N.E.2d 1023 (Ind. Ct. App.

2004). In Corralez, the defendant drove his vehicle at extremely high speeds,

disregarded stop signs, and collided with a vehicle at an intersection. The driver

of the other vehicle died after suffering for fourteen days. The State charged

Corralez with Class C felony reckless homicide. Corralez agreed to plead guilty

to Class D felony criminal recklessness in exchange for dismissing the Class C

felony charge. On appeal, Corralez claimed that the trial court had erred by

considering as aggravating the fact that he had originally been charged with

Court of Appeals of Indiana | Memorandum Decision No. 05A02-1411-CR-786 | June 9, 2015 Page 5 of 12 reckless homicide. We held tha, although the trial court should not have

considered the fact that Corralez had been charged with a Class C felony as an

aggravating factor by itself, the trial court could properly consider “the facts

surrounding Corralez’ crime.” Id. at 1026. We therefore held that “the trial

court’s decision to issue an aggravated sentence was supported by the

consideration that a person not only died as a result of Corralez’ recklessness

but suffered for fourteen days before dying.” Id.

[12] The same is true here. The trial court did not consider as aggravating that Sharp

had been charged with resisting law enforcement. Instead, the trial court simply

noted the nature and circumstances of the crime, which included Sharp’s

actions of resisting law enforcement, as evidence of his disregard for the

authority of the law.1 The trial court used this aggravating circumstance in

deciding not to suspend the entirety of Sharp’s sentence. Through the plea-

bargained dismissal of the resisting charge, Sharp avoided a separate sentence

for his conduct, but pursuant to our holding in Corralez, it was not improper to

consider his conduct as an aggravator.

[13] Sharp also claims that the trial court abused its discretion by rejecting his claims

that the eleven grams of cocaine found on his person was for personal use that

he obtained through “chance encounters with strangers.” Appellant’s App. p.

21. Sharp claims that because no evidence contradicted his testimony at the

1 The nature and circumstances of Sharp’s crimes were set forth in the probable cause affidavit supporting the charging information, which was included in the presentence investigation report. Sharp did not challenge the veracity or accuracy of the account of his crimes as detailed in the presentence investigation report.

Court of Appeals of Indiana | Memorandum Decision No. 05A02-1411-CR-786 | June 9, 2015 Page 6 of 12 sentencing hearing, the trial court abused its discretion by rejecting his claims

and considering this as an aggravating factor. Again, we disagree.

[14] As the trier of fact, the trial court was under no obligation to credit Sharp’s self-

serving testimony that the relatively large quantity of cocaine2 found on his

possession was merely for personal use. See Wood v. State, 999 N.E.2d 1054,

1064 (Ind. Ct. App. 2013) (noting that the trier of fact is not required to believe

a witness’s testimony even when it is uncontradicted).

[15] Sharp also claims that the trial court erred in finding that he claimed to have

bought the cocaine from strangers. Sharp notes that he testified that he obtained

the cocaine through a person named “Jimmy,” yet he claimed not to know

Jimmy’s last name. He claimed that he knew Jimmy through another friend,

Denise, whom he met at a gas station. However, he claimed not to know

Denise’s last name either. Again, the trial court was not obligated to believe any

of Sharp’s testimony. Thus, the trial court’s reference to these individuals as

strangers is not an abuse of discretion given Sharp’s claim not to even know

these individuals’ last names.

B. Mitigating Circumstances

[16] Sharp contends that the trial court abused its discretion by failing to consider

two mitigating circumstances that were clearly supported by the record: (1) that

2 The statute in effect at the time when Sharp committed his offense elevated the offense of possession of cocaine to a Class C felony if the amount involved weighed three grams or more. Thus, Sharp possessed almost four times the amount of cocaine required to elevate his crime of possession to a Class C felony.

Court of Appeals of Indiana | Memorandum Decision No. 05A02-1411-CR-786 | June 9, 2015 Page 7 of 12 his crime neither caused nor threatened serious harm to persons or property,

and (2) his history of full-time employment.

[17] The finding of mitigating factors is not mandatory and rests within the

discretion of the trial court. Williams v. State, 997 N.E.2d 1154, 1163-64 (Ind.

Ct. App. 2013). The trial court is not required to accept the defendant’s

arguments as to what constitutes a mitigating factor. Id. Further, the trial court

is not required to give the same weight to proffered mitigating factors as the

defendant does, nor is it obligated to explain why it did not find a factor to be

significantly mitigating. Id. The trial court does not abuse its discretion by

declining to find alleged mitigating circumstances that are highly disputable in

nature, weight, or significance. Jackson v. State, 973 N.E.2d 1123, 1130-31 (Ind.

Ct. App. 2012). The relative weight or value assignable to reasons properly

found or those which should have been found is not subject to review for abuse

of discretion. Id. (citing Anglemyer, 868 N.E.2d at 491).

[18] With regard to the first alleged mitigator, that Sharp’s crimes did not cause or

threaten serious harm to persons or property, we note that Sharp did not

advance this for consideration as a mitigator to the trial court. Accordingly, the

trial court cannot be said to have abused its discretion by failing to consider this

alleged mitigating factor. See Anglemyer, 868 N.E.2d at 492 (“the trial court does

not abuse its discretion in failing to consider a mitigating factor that was not

raised at sentencing.”).

Court of Appeals of Indiana | Memorandum Decision No. 05A02-1411-CR-786 | June 9, 2015 Page 8 of 12 [19] With regard to Sharp’s employment history, Sharp testified that he had been

employed for approximately two months, during which he worked six weeks at

one job and two weeks at another. Although we commend Sharp’s efforts to

maintain employment, we are unable to agree with him that his employment

history is a significant mitigator that the trial court improperly overlooked.

[20] In summary, we conclude that the trial court did not abuse its discretion in its

consideration of aggravating and mitigating circumstances. However, even if

we were to conclude otherwise, we will not remand for resentencing if the

sentence imposed is not inappropriate. Williams v. State, 997 N.E.2d 1154, 1165

(Ind. Ct. App. 2013) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007)).

As explained below, Sharp’s sentence is not inappropriate.

II. Appellate Rule 7(B)

[21] Even if a trial court acted within its statutory discretion in imposing a sentence,

Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent

appellate review and revision of a sentence imposed by the trial court. Trainor v.

State, 950 N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied (citing

Anglemyer, 868 N.E.2d at 491). This authority is implemented through Indiana

Appellate Rule 7(B), which provides that the court on appeal “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.”

Court of Appeals of Indiana | Memorandum Decision No. 05A02-1411-CR-786 | June 9, 2015 Page 9 of 12 [22] Still, we must and should exercise deference to a trial court’s sentencing

decision because Rule 7(B) requires us to give ‘due consideration’ to that

decision and because we understand and recognize the unique perspective a

trial court brings to its sentencing decisions. Id. Although we have the power to

review and revise sentences, the principal role of appellate review should be to

attempt to level the outliers and identify some guiding principles for trial courts

and those charged with improvement of the sentencing statutes, but not to

achieve what we perceive to be a “correct” result in each case. Fernbach v. State,

954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied (citing Cardwell v.

State, 895 N.E.2d 1219, 1225 (Ind. 2008)). The appropriate question is not

whether another sentence is more appropriate; rather, the question is whether

the sentence imposed is inappropriate. Former v. State, 876 N.E.2d 340, 344

(Ind. Ct. App. 2007). It is the defendant’s burden on appeal to persuade us that

the sentence imposed by the trial court is inappropriate. Childress v. State, 848

N.E.2d 1073, 1080 (Ind. 2006).

[23] When reviewing the appropriateness of a sentence, we are not “to consider only

the appropriateness of the aggregate length of the sentence without considering

also whether a portion of the sentence is ordered suspended.” Marley v. State, 17

N.E.3d 335, 339 (Ind. Ct. App. 2014), trans. denied (citing Davidson v. State, 926

N.E.2d 1023, 1024 (Ind. 2010)). This does not preclude us from determining a

sentence to be inappropriate due to its overall sentence length despite the

suspension of a substantial portion thereof, as a defendant on probation is

Court of Appeals of Indiana | Memorandum Decision No. 05A02-1411-CR-786 | June 9, 2015 Page 10 of 12 subject to the revocation of probation and may be required to serve up to the

full original sentence. Id.

[24] Here, Sharp was convicted of a Class C felony. The sentencing range for a Class

C felony is two to eight years, with the advisory sentence being four years. Ind.

Code § 35-50-2-6. The trial court imposed a sentence of one year above the

advisory but still three years under the maximum. Also, the trial court ordered

only two years of the sentence executed, with the remaining three years

suspended to probation. With this in mind, we address the nature of the offense

and the character of the offender.

[25] Here, the nature of the offense supports the trial court’s sentencing decision.

Even if we were to ignore the fact that Sharp physically resisted the efforts of

the law enforcement officers, it remains that Sharp possessed eleven grams of

cocaine, significantly greater than the three grams required to elevate his crime

of possession to a Class C felony.

[26] Considering the character of the offender, we note that although Sharp does not

have a significant criminal history, he failed to successfully complete his

probation on his prior misdemeanor conviction. Moreover, he admittedly used

marijuana while the current case was pending. None of this leads us to

conclude that Sharp’s sentence is inappropriate.

Conclusion

[27] The trial court did not abuse its discretion in its identification of aggravating

factors or in its failure to consider certain factors as mitigating. Furthermore,

Court of Appeals of Indiana | Memorandum Decision No. 05A02-1411-CR-786 | June 9, 2015 Page 11 of 12 Sharp’s sentence of five years, with two years executed and three years

suspended to probation, is not inappropriate in light of the nature of the offense

[28] Affirmed.

May, J., and Robb, J., concur.

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