MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 17 2019, 9:12 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 Mark A. Thoma Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana Leonard, Hammond, Thoma & Terrill Fort Wayne, Indiana Courtney Staton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dimitric A. Freeman, June 17, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-21 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Wendy W. Davis, Appellee-Plaintiff. Judge Trial Court Cause No. 02D04-1803-F2-11
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-21 | June 17, 2019 Page 1 of 8 Statement of the Case [1] Dimitric Freeman appeals his sentence following his convictions for dealing in
methamphetamine, as a Level 2 felony, and dealing in cocaine or narcotic drug,
as a Level 3 felony. Freeman presents two issues for our review:
1. Whether the trial court abused its discretion when it sentenced him.
2. Whether his sentence is inappropriate in light of the nature of the offenses and his character.
[2] We affirm.
Facts and Procedural History [3] On January 8, 2018, the Allen Circuit Court sentenced Freeman to one year of
home detention following his conviction for operating a motor vehicle after his
license had been forfeited for life. Freeman wore an ankle bracelet while on
home detention. On March 10, Allen County Community Corrections officers
observed a “no motion” alert 1 from Freeman’s ankle bracelet, and Officers
Stacey McHenry and Nathan Dodge went to Freeman’s residence to check on
him. Tr. Vol. 1 at 105. After the officers arrived, Officer McHenry searched
the upstairs of the townhouse while Officer Dodge spoke with Freeman, along
with Freeman’s girlfriend and her small child, downstairs. In a bedroom,
1 At trial, Officer McHenry explained that a “no motion” alert requires an officer to “check on . . . the wellbeing of a person to make sure that they are okay because . . . it is abnormal for somebody to give no motion.” Tr. Vol. 1 at 105-06.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-21 | June 17, 2019 Page 2 of 8 Officer McHenry found a digital scale with a white powdery residue on it, a
wallet teeming with cash, 127.2 grams of methamphetamine, and 7.68 grams of
morphine.
[4] The State charged Freeman with dealing in methamphetamine, as a Level 2
felony, and dealing in cocaine or a narcotic drug, as a Level 3 felony. A jury
found him guilty as charged. The trial court entered judgment of conviction
accordingly and sentenced Freeman to concurrent sentences of twenty-five
years with twenty years executed and five years suspended for the Level 2
felony conviction and ten years executed for the Level 3 felony conviction.
This appeal ensued.
Discussion and Decision Issue One: Abuse of Discretion in Sentencing
[5] Freeman first contends that the trial court abused its discretion when it
sentenced him. Sentencing decisions lie within the sound discretion of the trial
court. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). An abuse of
discretion occurs if the decision is “clearly against the logic and effect of the
facts and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct.
App. 2014) (citation omitted), trans. denied.
[6] A trial court abuses its discretion in sentencing if it does any of the following:
(1) fails “to enter a sentencing statement at all;” (2) enters “a sentencing statement that explains reasons for imposing a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-21 | June 17, 2019 Page 3 of 8 sentence—including a finding of aggravating and mitigating factors if any—but the record does not support the reasons;” (3) enters a sentencing statement that “omits reasons that are clearly supported by the record and advanced for consideration;” or (4) considers reasons that “are improper as a matter of law.”
Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind.), clarified on reh’g
other grounds, 875 N.E.2d 218 (Ind. 2007)).
[7] The sentencing range for a Level 2 felony is ten years to thirty years, with an
advisory sentence of seventeen and one half years. Ind. Code § 35-50-2-4.5
(2018). And the sentencing range for a Level 3 felony is three years to sixteen
years, with an advisory sentence of nine years. I.C. § 35-50-2-5. Here, at
sentencing, the trial court identified the following aggravators: Freeman’s
criminal history, which consists of five felonies, including possession of a
handgun with obliterated identification marks, and twelve misdemeanors,
including five convictions for resisting law enforcement; the facts and
circumstances of the offenses, including the presence of a small child with drugs
in the home; Freeman’s failure to take advantage of several opportunities with
alternative sentencing; and that Freeman was on home detention at the time of
the offenses. The trial court identified no mitigators and imposed an aggregate
twenty-five-year sentence with twenty years executed and five years suspended.
[8] Freeman asserts that, “by not making mention of any mitigation [sic] factors
that were both significant and clearly recorded in the record, the trial court
abused its discretion in sentencing.” Appellant’s Br. at 17. Freeman maintains
that the trial court should have found mitigating that: he was “trying to better
Court of Appeals of Indiana | Memorandum Decision 19A-CR-21 | June 17, 2019 Page 4 of 8 his situation” by having obtained “Specialized Driving Privileges prior to his
arrest in this case”; he has community and family support; he was employed
full-time at the time of the offenses; and the facts and circumstances of the
offenses “were no greater than the elements of the particular offense[s].” Id. at
16.
[9] The finding of mitigating circumstances is within the discretion of the trial
court. Rascoe v. State, 736 N.E.2d 246, 248-49 (Ind. 2000). An allegation that
the trial court failed to identify or find a mitigating circumstance requires the
defendant to establish that the mitigating evidence is both significant and clearly
supported by the record. Id. at 249. The trial court is not obligated to accept
the defendant’s contentions as to what constitutes a mitigating circumstance.
Id.
[10] We agree with the State that none of the proffered mitigators are significant in
light of Freeman’s extensive criminal history, his inability to take advantage of
multiple prior attempts at alternative sentencing, and the nature and
circumstances of these offenses. Again, Freeman was on home detention at the
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 17 2019, 9:12 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 Mark A. Thoma Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana Leonard, Hammond, Thoma & Terrill Fort Wayne, Indiana Courtney Staton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dimitric A. Freeman, June 17, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-21 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Wendy W. Davis, Appellee-Plaintiff. Judge Trial Court Cause No. 02D04-1803-F2-11
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-21 | June 17, 2019 Page 1 of 8 Statement of the Case [1] Dimitric Freeman appeals his sentence following his convictions for dealing in
methamphetamine, as a Level 2 felony, and dealing in cocaine or narcotic drug,
as a Level 3 felony. Freeman presents two issues for our review:
1. Whether the trial court abused its discretion when it sentenced him.
2. Whether his sentence is inappropriate in light of the nature of the offenses and his character.
[2] We affirm.
Facts and Procedural History [3] On January 8, 2018, the Allen Circuit Court sentenced Freeman to one year of
home detention following his conviction for operating a motor vehicle after his
license had been forfeited for life. Freeman wore an ankle bracelet while on
home detention. On March 10, Allen County Community Corrections officers
observed a “no motion” alert 1 from Freeman’s ankle bracelet, and Officers
Stacey McHenry and Nathan Dodge went to Freeman’s residence to check on
him. Tr. Vol. 1 at 105. After the officers arrived, Officer McHenry searched
the upstairs of the townhouse while Officer Dodge spoke with Freeman, along
with Freeman’s girlfriend and her small child, downstairs. In a bedroom,
1 At trial, Officer McHenry explained that a “no motion” alert requires an officer to “check on . . . the wellbeing of a person to make sure that they are okay because . . . it is abnormal for somebody to give no motion.” Tr. Vol. 1 at 105-06.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-21 | June 17, 2019 Page 2 of 8 Officer McHenry found a digital scale with a white powdery residue on it, a
wallet teeming with cash, 127.2 grams of methamphetamine, and 7.68 grams of
morphine.
[4] The State charged Freeman with dealing in methamphetamine, as a Level 2
felony, and dealing in cocaine or a narcotic drug, as a Level 3 felony. A jury
found him guilty as charged. The trial court entered judgment of conviction
accordingly and sentenced Freeman to concurrent sentences of twenty-five
years with twenty years executed and five years suspended for the Level 2
felony conviction and ten years executed for the Level 3 felony conviction.
This appeal ensued.
Discussion and Decision Issue One: Abuse of Discretion in Sentencing
[5] Freeman first contends that the trial court abused its discretion when it
sentenced him. Sentencing decisions lie within the sound discretion of the trial
court. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). An abuse of
discretion occurs if the decision is “clearly against the logic and effect of the
facts and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct.
App. 2014) (citation omitted), trans. denied.
[6] A trial court abuses its discretion in sentencing if it does any of the following:
(1) fails “to enter a sentencing statement at all;” (2) enters “a sentencing statement that explains reasons for imposing a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-21 | June 17, 2019 Page 3 of 8 sentence—including a finding of aggravating and mitigating factors if any—but the record does not support the reasons;” (3) enters a sentencing statement that “omits reasons that are clearly supported by the record and advanced for consideration;” or (4) considers reasons that “are improper as a matter of law.”
Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind.), clarified on reh’g
other grounds, 875 N.E.2d 218 (Ind. 2007)).
[7] The sentencing range for a Level 2 felony is ten years to thirty years, with an
advisory sentence of seventeen and one half years. Ind. Code § 35-50-2-4.5
(2018). And the sentencing range for a Level 3 felony is three years to sixteen
years, with an advisory sentence of nine years. I.C. § 35-50-2-5. Here, at
sentencing, the trial court identified the following aggravators: Freeman’s
criminal history, which consists of five felonies, including possession of a
handgun with obliterated identification marks, and twelve misdemeanors,
including five convictions for resisting law enforcement; the facts and
circumstances of the offenses, including the presence of a small child with drugs
in the home; Freeman’s failure to take advantage of several opportunities with
alternative sentencing; and that Freeman was on home detention at the time of
the offenses. The trial court identified no mitigators and imposed an aggregate
twenty-five-year sentence with twenty years executed and five years suspended.
[8] Freeman asserts that, “by not making mention of any mitigation [sic] factors
that were both significant and clearly recorded in the record, the trial court
abused its discretion in sentencing.” Appellant’s Br. at 17. Freeman maintains
that the trial court should have found mitigating that: he was “trying to better
Court of Appeals of Indiana | Memorandum Decision 19A-CR-21 | June 17, 2019 Page 4 of 8 his situation” by having obtained “Specialized Driving Privileges prior to his
arrest in this case”; he has community and family support; he was employed
full-time at the time of the offenses; and the facts and circumstances of the
offenses “were no greater than the elements of the particular offense[s].” Id. at
16.
[9] The finding of mitigating circumstances is within the discretion of the trial
court. Rascoe v. State, 736 N.E.2d 246, 248-49 (Ind. 2000). An allegation that
the trial court failed to identify or find a mitigating circumstance requires the
defendant to establish that the mitigating evidence is both significant and clearly
supported by the record. Id. at 249. The trial court is not obligated to accept
the defendant’s contentions as to what constitutes a mitigating circumstance.
Id.
[10] We agree with the State that none of the proffered mitigators are significant in
light of Freeman’s extensive criminal history, his inability to take advantage of
multiple prior attempts at alternative sentencing, and the nature and
circumstances of these offenses. Again, Freeman was on home detention at the
time of the offenses, and he kept a very large amount of methamphetamine in
the residence in the presence of his girlfriend’s small child. We cannot say that
the trial court abused its discretion when it declined to identify any mitigators.
Issue Two: Inappropriateness of Sentence
[11] Freeman also contends that his twenty-five-year aggregate sentence, with five
years suspended, is inappropriate in light of the nature of the offenses and his
Court of Appeals of Indiana | Memorandum Decision 19A-CR-21 | June 17, 2019 Page 5 of 8 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 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, 868 N.E.2d at 494].
Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).
[12] 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
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
Court of Appeals of Indiana | Memorandum Decision 19A-CR-21 | June 17, 2019 Page 6 of 8 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).
[13] Freeman asserts that his sentence is inappropriate in light of the nature of the
offenses because the nature and circumstances “were no greater than the actual
elements of the particular offense[s]” and there was no violence or actual
dealing involved. Appellant’s Br. at 19. However, again, Freeman was on
home detention at the time of the offenses and kept a large amount of
methamphetamine and morphine in the residence in the presence of a small
child. Indeed, Freeman possessed more than twelve times the amount of
methamphetamine required to prove dealing in methamphetamine as a Level 2
felony. See I.C. § 35-48-4-1.1(e). We cannot say that Freeman’s sentence is
inappropriate in light of the nature of the offenses.
[14] Freeman contends that his sentence is inappropriate in light of his character
because of the “positive changes” he has made in his life, his family support,
and his employment and support of his minor child. Id. at 18. However, as the
trial court observed, Freeman’s criminal history is significant given the number
of felony and misdemeanor convictions, including five misdemeanor
convictions for resisting law enforcement and a felony conviction for possession
of a handgun with obliterated identification marks. Moreover, Freeman has
been given many opportunities to avoid incarceration in the past with
alternative sentencing, but he continued to commit crimes, which does not
Court of Appeals of Indiana | Memorandum Decision 19A-CR-21 | June 17, 2019 Page 7 of 8 reflect a good character. Finally, and most importantly, Freeman committed
the instant crimes while on home detention. We cannot say that Freeman’s
aggregate sentence of twenty-five years with five years suspended is
inappropriate in light of the nature of the offenses and his character.
[15] Affirmed.
Baker, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-21 | June 17, 2019 Page 8 of 8