Dallas Preston v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 10, 2019
• Docket: 18A-CR-581
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 10 2019, 6:07 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer L. Koethe Curtis T. Hill, Jr. La Porte, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dallas Preston, January 10, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-581 v. Appeal from the La Porte Circuit Court State of Indiana, The Honorable Thomas Alevizos, Appellee-Plaintiff Judge Trial Court Cause No. 46C01-1706-F3-512

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-581 | January 10, 2019 Page 1 of 4 [1] Dallas Preston appeals the sentence imposed by the trial court after he pleaded

guilty to Level 3 felony aggravated battery. Preston argues that the trial court

erred by failing to find two proffered mitigating factors. Finding no error, we

affirm.

Facts [2] On June 4, 2017, Preston and some friends went out after work. They drank

heavily and used cocaine. They met Maurice Edmond at a bar and took him

with them to another party. Preston, Edmond, and Dusty Buren left the party

together in Preston’s vehicle. Preston blacked out and crashed the vehicle into

a guardrail. At that point, Preston and Buren exited the vehicle and, in a blind

rage, beat Edmond. Preston hit, struck, stomped, and kicked Edmond in the

head. He injured Edmond’s face, caused significant head trauma, and fractured

Edmond’s left eye socket, resulting in ocular nerve damage with full or partial

loss of eyesight in the left eye. Preston and Buren then fled the scene, leaving

Edmond on the ground.

[3] On June 7, 2017, Preston was charged with Level 3 felony aggravated battery.

On December 1, 2017, Preston pleaded guilty as charged pursuant to a written

plea agreement. At the February 2, 2018, sentencing hearing, Preston asked

that the trial court find his history of substance abuse and mental illness as

mitigating factors. The trial court declined, finding Preston’s criminal history

as an aggravator and his guilty plea as a mitigator. The trial court imposed an

eleven-year sentence on Preston, who now appeals.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-581 | January 10, 2019 Page 2 of 4 Discussion and Decision [4] Preston’s sole argument on appeal is that the trial court should have found his

history of substance abuse and mental illness to be mitigating factors.1 Preston

has the burden of demonstrating that the mitigating evidence is both significant

and clearly supported by the record. McElfresh v. State, 51 N.E.3d 103, 112 (Ind.

2016). Even if we find error, we will affirm if we are persuaded that the trial

court would have imposed the same sentence had it considered the proffered

mitigators. Id.

[5] The record does, indeed, show that Preston has a long and serious history of

substance abuse. He has been addicted to alcohol since the age of eight, has

regularly used marijuana since the age of thirteen, has been a cocaine addict

since he was nineteen, and has been addicted to methamphetamine since the

age of twenty-four. He has also abused prescription medication. Preston has

previously been ordered to complete an alcohol treatment program, but there is

no indication that he has, in fact, sought out or completed any treatment. He is

well aware of his serious substance abuse issues but has not taken any steps to

treat those issues. Under these circumstances, the trial court did not err by

1 Preston cites to Indiana Appellate Rule 7(B) but does not make an argument that the sentence is inappropriate in light of the nature of the offense and his character. We note that even if he had made a Rule 7(B) argument, we would have affirmed the sentence, given the particularly brutal nature of the offense and Preston’s lengthy criminal history, which includes multiple prior battery convictions. He also argues that the trial court did not afford enough weight to his guilty plea as a mitigator, but we do not review the weight given to aggravators and mitigators by the trial court. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g. at 875 N.E.2d 218.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-581 | January 10, 2019 Page 3 of 4 declining to find this to be a mitigating factor. See Caraway v. State, 959 N.E.2d

847, 851 (Ind. Ct. App. 2011) (finding that when a defendant is aware of a

substance abuse problem but has not taken steps to treat it, the trial court may

find that the addiction is an aggravator).

[6] As for Preston’s purported mental health issues, there is no evidence supporting

his claim that he has been diagnosed with a myriad of issues aside from his own

self-serving testimony. And even that testimony is contradicted by Preston’s

statements in the presentence investigation report, when he reported that he was

in “fair mental health,” and by his testimony that he was not being treated for

or suffering from any mental illnesses or diseases. Appellant’s Conf. App. Vol.

III p. 12; Tr. Vol. II p. 3-4. In addition to a dearth of medical evidence

supporting his claims of mental illness, Preston did not present any evidence

showing that his purported mental health issues rendered him unable to control

his behavior, limited his functioning, or had a nexus to the crime at issue.

Therefore, the trial court did not err by declining to find this to be a mitigating

factor.

[7] The judgment of the trial court is affirmed.

May, J., and Tavitas, J, concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-581 | January 10, 2019 Page 4 of 4