Darrell T. Green v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 14, 2019
• Docket: 19A-CR-418
• 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 Jun 14 2019, 10:07 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 John Kindley Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana

Samantha M. Sumcad Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Darrell T. Green, June 14, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-418 v. Appeal from the Randolph Circuit Court State of Indiana, The Honorable Jay L. Toney, Appellee-Plaintiff. Judge Trial Court Cause No. 68C01-1804-F5-264

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-418 | June 14, 2019 Page 1 of 5 Statement of the Case [1] Darrell T. Green appeals his sentence following his conviction for dealing in

methamphetamine, as a Level 5 felony, pursuant to a guilty plea. Green raises

one issue for our review, namely, whether his sentence is inappropriate in light

of the nature of the offense and his character. We affirm.

Facts and Procedural History [2] On September 21, 2017, Green sold 0.92 gram of methamphetamine to a

confidential informant (“CI”) for the Randolph County Sheriff’s Department in

exchange for $100. Green again sold 0.35 gram of methamphetamine to the CI

in exchange for $40 on September 25. And, on October 4, Green sold 1.26

grams of methamphetamine to the CI in exchange for $150. As a result, the

State charged Green with one count of dealing in methamphetamine, as a Level

4 felony; two counts of dealing in methamphetamine, as Level 5 felonies; three

counts of possession of methamphetamine, as Level 6 felonies; and three counts

of maintaining a common nuisance, as Level 6 felonies.

[3] On October 2, 2018, Green pleaded guilty to one count of dealing in

methamphetamine, as a Level 5 felony. Pursuant to his guilty plea, the parties

agreed that Green’s sentence would be three years, but that “[t]he amount of

any suspended time, if any, as well as any probationary period, if any shall be

left to the discretion of the Court.” Appellant’s App. Vol. II at 27. In exchange

for his plea, the State dismissed the remaining charges. Following a hearing,

Court of Appeals of Indiana | Memorandum Decision 19A-CR-418 | June 14, 2019 Page 2 of 5 the trial court accepted Green’s guilty plea. The court then sentenced Green to

three years, all executed in the Department of Correction. This appeal ensued.

Discussion and Decision [4] Green contends that his sentence is inappropriate in light of the nature of the

offense and his character. Indiana Appellate Rule 7(B) provides that “[t]he

Court 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.” This court

has recently held that “[t]he advisory sentence is the starting point the

legislature has selected as an appropriate sentence for the crime committed.”

Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana

Supreme Court has recently explained that:

The principal role of appellate review should be to attempt to leaven the outliers . . . but not achieve a perceived “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007), decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).

Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).

[5] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

sentence to the circumstances presented, and the trial court’s judgment “should

receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we

regard a sentence as inappropriate at the end of the day turns on “our sense of Court of Appeals of Indiana | Memorandum Decision 19A-CR-418 | June 14, 2019 Page 3 of 5 the culpability of the defendant, the severity of the crime, the damage done to

others, and myriad other facts that come to light in a given case.” Id. at 1224.

The question is not whether another sentence is more appropriate, but rather

whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless

overcome by compelling evidence portraying in a positive light the nature of the

offense (such as accompanied by restraint, regard, and lack of brutality) and the

defendant’s character (such as substantial virtuous traits or persistent examples

of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[6] The sentencing range for a Level 5 felony is one year to six years, with an

advisory sentence of three years. See Ind. Code § 35-50-2-6(b) (2018). Pursuant

to the plea agreement, the court sentenced Green to a term of three years. The

court identified as an aggravating factor Green’s criminal history, and the court

found that there were no mitigating factors. Accordingly, the trial court

ordered Green to execute all three years in the Department of Correction.

[7] On appeal, Green asserts that his “executed prison sentence for delivering meth

to support his own habit is inappropriate for the simple and true reason that

vices are not crimes[.]” Appellant’s Br. at 4. Specifically, he contends that his

sentence is inappropriate in light of the nature of the offense because dealing in

methamphetamine is simply “a vice, rather than a crime.” Reply Br. at 3. And

Green contends that, because dealing in methamphetamine is a vice rather than

a crime, his character is “merely vicious” but not criminal. Id. (emphasis

removed). In essence, Green contends that his sentence is inappropriate

Court of Appeals of Indiana | Memorandum Decision 19A-CR-418 | June 14, 2019 Page 4 of 5 because he did not commit a crime. But our legislature has clearly stated that

dealing in methamphetamine is a crime. See I.C. § 35-48-4-1.1.

[8] Green has not persuaded us that his sentence is inappropriate. Other than his

simple assertion that dealing in methamphetamine is not a crime and that his

character is merely vicious, Green does not make any other argument on appeal

to explain why his executed sentence is inappropriate in light of the nature of

the offense or his character. Green received the bargained-for advisory sentence

despite his extensive criminal history, which includes several felony convictions

for dealing in marijuana or possession of a controlled substance and a prior

probation violation. We cannot say that Green’s sentence in inappropriate, and

we affirm his sentence.

[9] Affirmed.

Baker, J., and Robb, J., concur.

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