Dewayne T. Anderson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 11, 2017
• Docket: 36A01-1612-CR-2766
• 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 May 11 2017, 7:59 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dewayne T. Anderson, May 11, 2017 Appellant-Defendant, Court of Appeals Case No. 36A01-1612-CR-2766 v. Appeal from the Jackson Circuit Court State of Indiana, The Honorable Richard W. Appellee-Plaintiff. Poynter, Judge Trial Court Cause No. 36C01-1509-F2-18

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 36A01-1612-CR-2766 | May 11, 2017 Page 1 of 4 Statement of the Case [1] Dewayne Anderson appeals his sentence following his conviction for dealing in

a narcotic drug, as a Level 2 felony. Anderson presents a single 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 13, 2015, while Anderson was on “supervised federal probation”

for a prior heroin-related conviction, a law enforcement officer conducted a

traffic stop on Interstate 65 in Jackson County and found in Anderson’s vehicle

forty grams of heroin, twenty-six grams of marijuana, seven and a half grams of

cocaine, eighty grams of a cutting agent, digital scales, and 100 small plastic

baggies. Appellant’s App. Vol. 3 at 7. The State charged Anderson with five

felony counts and one misdemeanor count. Anderson pleaded guilty to dealing

in a narcotic drug, as a Level 2 felony, and in exchange for that plea, the State

dismissed the other charges. The trial court accepted the plea, entered

judgment of conviction, and sentenced Anderson to twenty years executed.

This appeal ensued.

Discussion and Decision [3] Anderson contends that his sentence is inappropriate in light of the nature of

the offense and his character. As we have explained:

Indiana Appellate Rule 7(B) permits an Indiana appellate court to “revise a sentence authorized by statute if, after due

Court of Appeals of Indiana | Memorandum Decision 36A01-1612-CR-2766 | May 11, 2017 Page 2 of 4 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.” We assess the trial court’s recognition or nonrecognition of aggravators and mitigators as an initial guide to determining whether the sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). The principal role of appellate review is to “leaven the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). A defendant must persuade the appellate court that his or her sentence has met the inappropriateness standard of review. Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).

Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).

[4] Anderson maintains that his twenty-year sentence is inappropriate in light of

the nature of the offense because he had no intent to deal narcotics, but

intended to share the drugs with his friends at a “large party”; he complied with

law enforcement during the traffic stop; and he did not endanger anyone.

Appellant’s Br. at 11. And Anderson maintains that his sentence is

inappropriate in light of his character because “his most recent [prior]

conviction occurred fifteen (15) years” ago; he has “never received any

substantial drug treatment to assist him with addiction recovery”; he pleaded

guilty to the highest level felony count with which he was charged; he has

health issues; and he has a supportive family. Id. at 10. We cannot agree.

[5] Regarding the nature of the offense, a defendant’s possession of ten grams of

cocaine or a narcotic drug is sufficient to support a Level 2 felony conviction,

and Anderson possessed forty grams of heroin and seven and a half grams of

cocaine. Regarding his character, Anderson’s criminal history, without more,

Court of Appeals of Indiana | Memorandum Decision 36A01-1612-CR-2766 | May 11, 2017 Page 3 of 4 supports the twenty-year sentence in this case. Anderson’s prior state and

federal convictions date back to 1988 and include “trafficking” in cocaine,

“trafficking” in marijuana, and “trafficking” in heroin, and he has previously

violated parole. Appellant’s App. Vol. 3 at 6-7. At the time of the instant

offense, Anderson had just been released from federal prison on a heroin-related

conviction eight months’ prior, and he was on supervised probation. We

cannot say that Anderson’s twenty-year executed sentence is inappropriate in

light of the nature of the offense and his character and, thus, we affirm his

sentence.

[6] Affirmed.

Riley, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 36A01-1612-CR-2766 | May 11, 2017 Page 4 of 4