Erik T. Whitesell v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 17, 2019
• Docket: 19A-CR-983
• 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 Dec 17 2019, 6:24 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brandon E. Murphy Curtis T. Hill, Jr. Muncie, Indiana Attorney General of Indiana

Steven Hosler Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Erik T. Whitesell, December 17, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-983 v. Appeal from the Blackford Superior Court State of Indiana, The Honorable Appellee-Plaintiff. John Nicholas Barry, Judge Trial Court Cause No. 05D01-1801-F5-2

Altice, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-983 | December 17, 2019 Page 1 of 10 Case Summary [1] Following his guilty plea to Level 5 felony dealing in methamphetamine, Erik

T. Whitesell appeals, asserting that his six-year sentence is inappropriate.

[2] We affirm.

Facts & Procedural History [3] On December 7, 2017, Lieutenant Cody Crouse of the Hartford City Police

Department was conducting a drug investigation at Whitesell’s residence. Lt.

Crouse observed Whitesell leave his residence at 7:55 a.m. and return at 12:07

p.m. Over the course of the next several hours, Lt. Crouse saw several vehicles

drive up to the residence and the occupants enter and exit the residence. He

also observed Whitesell leave and return one or more times. Lt. Crouse

obtained a search warrant for the residence and two vehicles, including a gold

Lincoln Town Car. Officers observed the Lincoln leave around 4 p.m. with

three occupants, including Whitesell, and initiated a stop. Lt. Crouse informed

Whitesell that he had a search warrant for the Lincoln and Whitesell’s

residence. Whitesell gave Lt. Crouse his keys to the residence, and Whitesell

told other officers that there was a syringe in front of his bed in the basement.

During the search of Whitesell’s residence, officers found various items

consistent with drug dealing, including syringes, marijuana, Fentanyl, and

other drug paraphernalia.

[4] Whitesell was taken to the police station and, after receiving Miranda warnings,

gave a statement. He admitted to using heroin, methamphetamine, and

Court of Appeals of Indiana | Memorandum Decision 19A-CR-983 | December 17, 2019 Page 2 of 10 marijuana. He admitted that when he was seen leaving around 8:00 a.m. and

returning around noon, he had “made a trip,” which Lt. Crouse knew from

experience referred to a trip to purchase drugs. Appellant’s Appendix Vol. II at

191. When asked how much “dope” he acquired that day, Whitesell said

fifteen grams and indicated that he had already sold it. Id. Whitesell stated that

he deals in both heroin and methamphetamine and estimated that generally he

sold between half an ounce to an ounce per day. He told Lt. Crouse that he

makes “a lot” of money each week. Id. Lt. Crouse asked Whitesell how law

enforcement could “put [a] boot on the throat of this drug problem in Hartford

County,” and Whitesell stated, “to be honest, [w]hatever you do with me. I’m

probably single handed the only one bringing dope into this county in big

quantity.” Id. at 192. Whitesell was arrested and incarcerated at the Blackford

County Security Center.

[5] On January 5, 2018, the State charged Whitesell with Count 1, Level 5 felony

dealing in methamphetamine; Count 2, Level 5 felony dealing in

methamphetamine; Count 3, Level 6 felony unlawful possession of a syringe;

Count 4, Level 6 felony possession of methamphetamine; Count 5, Level 6

felony maintaining a common nuisance; Count 6, Class C misdemeanor

possession of paraphernalia; and Count 7, Class B misdemeanor possession of

marijuana.

[6] On or around May 14, 2018, Whitesell was released from the Blackford County

Security Center to Grace House Ministries, located in Shelby County, Indiana,

where he was to participate in substance abuse treatment. Pursuant to court

Court of Appeals of Indiana | Memorandum Decision 19A-CR-983 | December 17, 2019 Page 3 of 10 order, he was to reside at Grace House, and at no other place, until such time as

he completed his treatment or Grace House terminated his participation. On

November 14, 2018, Whitesell executed a written plea agreement, under which

he would plead guilty to Level 5 felony dealing in methamphetamine and the

remaining charges would be dismissed. The plea agreement further provided

that sentencing would be left open but not to exceed four years. A presentence

investigation report was ordered, and the sentencing hearing was set for

December 17, 2018.

[7] On December 3, the Blackford County probation department filed a report with

the trial court stating that, during a November 30 presentence interview,

Whitesell admitted to a probation officer that on several occasions he had

signed out from Grace House and spent the weekend at his mother’s residence

in Blackford County. He was also observed on December 1 at a Blackford

County High School basketball game. These actions were in violation of the

court’s release of Whitesell to Grace House, and the trial court issued an arrest

warrant for Whitesell’s arrest and ordered him to appear before the court.

[8] On December 18, 2018, the trial court issued an order rejecting the November

plea agreement. The court stated that it was “obligated” to reject the plea

agreement, which capped his sentence at four years, for reasons including that

Whitesell left Grace House in contravention of the court’s order, Whitesell told

Lt. Crouse that he was probably the only person bringing drugs of that quantity

into Hartford County, and:

Court of Appeals of Indiana | Memorandum Decision 19A-CR-983 | December 17, 2019 Page 4 of 10 C. That a plea agreement of the type presented here minimizes the impact of the defendant’s involvement in the drug culture in Blackford County, Indiana, and would further permit the defendant to profit from his own wrong by attributing credit time for a rehabilitation placement which was repeatedly violated by the defendant during his period of placement at the Grace House Rehabilitation Center.

Id. at 127.

[9] On April 9, 2019, Whitesell executed another plea agreement, under which he

would plead guilty to Level 5 felony dealing in methamphetamine with the

court “having full discretion over the entire sentence,” and the State would

dismiss the remaining charges. 1 Id. at 159. The court took the plea agreement

under advisement and set the matter for a hearing.

[10] At the sentencing hearing, Lt. Crouse testified about his interview with

Whitesell. Lt. Crouse understood Whitesell’s responses in the interview to

mean that Whitesell was responsible for bringing large quantities of drugs into

the county and that incarcerating Whitesell would stop the flow of drugs,

although Lt. Crouse acknowledged on cross-examination that the drug problem

still persisted despite Whitesell’s incarceration. Whitesell testified that at the

1 The record reflects that, prior to this April plea agreement, Whitesell had executed a second plea agreement on March 21, 2019, under which he would plead guilty to Level 5 felony dealing in methamphetamine and serve four years on home detention, and the State would dismiss the other charges. According to Appellant’s Brief, the court rejected this agreement in open court.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-983 | December 17, 2019 Page 5 of 10 time of the interview he was intoxicated on heroin, methamphetamine, and

marijuana and had exaggerated his involvement in the drug trade.

[11] Whitesell testified that he was employed, working forty and sometimes fifty

hours per week. His employer submitted a letter on his behalf, stating that

Whitesell had been honest and forthright about his past mistakes and legal

issues and that he was a valuable team member and was dependable and

trustworthy. At the time of sentencing, Whitesell was living in an apartment

with his girlfriend and their one-year-old daughter. His landlord submitted a

letter in support of Whitesell, sharing that Whitesell was a reliable tenant, paid

rent on time, and performed labor or tasks around the apartment complex,

sometimes for pay and sometimes as a volunteer. Whitesell acknowledged his

addiction problems and testified that he had completed the Grace House drug

treatment program. He asked for the court to impose home detention and

monitoring and stated he would be willing to participate in any recommended

program. He told the court, “If it can make me a better person, a better parent,

a better spouse, I’m willing to do any of it.” Transcript at 14.

[12] The State presented evidence that while Whitesell completed a drug treatment

program at Grace House on November 2018, in March 21, 2019, Whitesell

relapsed following a court hearing and used heroin. He violated the court’s

order while at Grace House by using a night pass more than once to stay at his

mother’s residence. The presentence report admitted into evidence, with

attached probable cause affidavit, reflected that as a juvenile Whitesell had

adjudications for what would be Class D felony battery and Class D felony theft

Court of Appeals of Indiana | Memorandum Decision 19A-CR-983 | December 17, 2019 Page 6 of 10 if committed by an adult. He had adult convictions in 2005 for Class D felony

theft, Class A misdemeanor criminal trespass. In 2006, he pled guilty to Class D

felony theft and in 2007, he pled guilty to Class A misdemeanor operating while

intoxicated endangering a person. In 2011, he was convicted for Class D felony

theft, and later that year, he was convicted of Class D felony receiving stolen

property. In 2013, Whitesell was arrested for burglary and conversion and

convicted of Class A misdemeanor conversion. In 2017, he pled guilty to Class

C misdemeanor operating a vehicle with a schedule I or II controlled substance

in a person’s body.

[13] The trial court considered as aggravating factors Whitesell’s prior criminal

history, his violation of the terms of his release to Grace House, and the impact

of the offense on the community. The court considered as mitigating the

hardship on Whitesell’s girlfriend and daughter through the loss of income and

a parent. The court imposed a six-year sentence in the Indiana Department of

Correction (DOC), recommending that Whitesell be placed in the Purposeful

Incarceration program at the DOC. Whitesell now appeals.

Discussion & Decision [14] Whitesell contends that his sentence is inappropriate. Pursuant to Ind.

Appellate Rule 7(B), this 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.” Our Supreme Court has explained that the principal role of

appellate review should be to attempt to leaven the outliers, “not to achieve a Court of Appeals of Indiana | Memorandum Decision 19A-CR-983 | December 17, 2019 Page 7 of 10 perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225

(Ind. 2008). “‘[W]e must and should exercise deference to a trial court’s

sentencing decision, both 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.’” Rogers v.

State, 878 N.E.2d 269, 275 (Ind. Ct. App. 2007) (quoting Stewart v. State, 866

N.E.2d 858, 866 (Ind. Ct. App. 2007)), trans. denied. “Such deference should

prevail 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). Whitesell bears the burden of persuading us that his sentence is

inappropriate. Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans.

denied.

[15] When determining whether a sentence is inappropriate, the advisory sentence is

the starting point the Legislature has selected as an appropriate sentence for the

crime committed. Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006). Here,

Whitesell was convicted of one Level 5 felony, for which the sentencing range

is between one and six years, with the advisory being three years. See Ind. Code

§ 35-50-2-6. The trial court sentenced Whitesell to six years, recommending

that he be placed in the Purposeful Incarceration program at the DOC.

Whitesell urges that his “maximum sentence allowable” was not appropriate as

it failed to consider the progress he made since arrest in terms of home life,

Court of Appeals of Indiana | Memorandum Decision 19A-CR-983 | December 17, 2019 Page 8 of 10 employment, and drug treatment, and he asks us to revise his sentence to five

years executed as a direct commitment on electronic monitoring home

detention. Appellant’s Brief at 9.

[16] We have recognized that “[t]he nature of the offense is found in the details and

circumstances of the commission of the offense and the defendant’s

participation.” Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). As to

the nature of the offense, the record shows that Whitesell acknowledged that he

played a significant role in the distribution of drugs in Blackford County,

including heroin and methamphetamine. We find no compelling evidence

portraying the nature of the offense “in a positive light,” nor does Whitesell

offer any argument in that regard. See Stephenson, 29 N.E.3d at 122. The record

before us does not warrant revision of Whitesell’s sentence based on the nature

of the offense.

[17] “The character of the offender is found in what we learn of the offender’s life

and conduct.” Croy, 953 N.E.2d at 664. Whitesell urges that he went to

treatment, complied with Grace House rules, obtained employment, and was a

reliable tenant and that his improved character demonstrates that his sentence

was inappropriate. While we commend the progress Whitesell appears to have

made, it is well settled that, “[w]hen considering the character of the offender,

one relevant factor is the defendant’s criminal history.” Johnson v. State, 986

N.E.2d 852, 857 (Ind. Ct. App. 2013). Whitesell’s criminal history began in

2002 and spanned to the current offense. In addition to two juvenile

adjudications that would have been Class D felonies if committed by an adult,

Court of Appeals of Indiana | Memorandum Decision 19A-CR-983 | December 17, 2019 Page 9 of 10 he has been convicted as an adult of five felonies and four misdemeanor

offenses. He has violated probation on at least seven occasions, and he violated

the trial court’s order requiring him to remain at Grace House during his

treatment for substance abuse issues.

[18] The question under App. R. 7(B) is “not whether another sentence is more

appropriate” but rather “whether the sentence imposed is inappropriate.” Miller

v. State, 105 N.E.3d 194, 196 (Ind. Ct. App. 2018). Whitesell has not

established that his six-year sentence is inappropriate.

[19] Judgment affirmed.

Robb, J. and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-983 | December 17, 2019 Page 10 of 10