Fox v. State

916 N.E.2d 708, 2009 Ind. App. LEXIS 2441, 2009 WL 3817455
CourtIndiana Court of Appeals
DecidedNovember 16, 2009
Docket24A01-0905-CR-232
StatusPublished
Cited by3 cases

This text of 916 N.E.2d 708 (Fox v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fox v. State, 916 N.E.2d 708, 2009 Ind. App. LEXIS 2441, 2009 WL 3817455 (Ind. Ct. App. 2009).

Opinion

OPINION

MAY, Judge.

Frederick D. Fox appeals his sentence for Class D felony possession of a controlled substance. 1 Fox asserts the trial court abused its discretion by denying his request for alternative misdemeanor sentencing. He also argues we should use our authority under Ind. Appellate Rule 7 to modify this conviction to a Class A misdemeanor. We affirm.

PROCEDURAL HISTORY 2

Fox pled guilty to Class D felony possession of a controlled substance and Class A misdemeanor possession of marijuana. 3 Fox asked the court to enter both of his convictions as Class A misdemeanors because a felony conviction would result in revocation of his nursing license. Fox's mother, who works at the same hospital as Fox, testified Fox was a good employee and was missed greatly at the hospital. Fox's wife testified about the hardship his imprisonment was having on her, their son, and their finances. A man for whom Fox is a private-duty nurse testified that Fox had been a great employee and it would be hard to find his replacement.

The court declined Fox's request for alternative misdemeanor sentencing, explaining:

[Tlhere's, uh, one oral motion basically from defense ... and that is under the statute regarding A misdemeanor treatment. Ub, I'll tell you Mr. Fox I hear that argument, uh, often when people are seeking A misdemeanor treatment and -- uh, and I'm yet to find somebody who can answer why the Court should ignore or pass over, uh, what you obviously passed over and ignored, and that is the way this effects you. Sen *710 tences effect people in different way and in different degrees, uh, sometimes you find a defendant who truly is surprised that this is what I put on the line by my actions. Uh, you're not one of those defendants. You're one of those defendants who have an advance degree or have a degree and you are a member of a profession who has well schooled you in the concerns about pharmacology and the things that you have assess to and the effects of drugs, and you have a heightened awareness of that then just any members of the public and because of that you have a heightened responsibility with regard to using those items or having them in your possession or guarding against having them in your possession when, uh, you might argue or others in your place might argue somebody else put it there, but I mean that's the reason for the concern because your profession as our profession is under constant public serutiny, constant eriti-cism, constant ub, attack from the public that doesn't understand the service that we provide or the service that you provide and the cost associated with those services, and we're all under higher standard to guard the profession because of those reasons, and you haven't. That's -- uh, the bottom line of it. When you come in here and plead guilty to felony possession or a felony abuse, or a felony of any kind your profession says that means you're not to be a part of us anymore. They do a risk assessment or damage assessment, and they don't want in your profession anymore then in our profession there are things that say you can't be a part of this profession anymore, and having known that put it on the line the way that you did, and the way that you come in here and admitted to. I don't know of any reason, ub, other than those argued by counsel properly and very well, uh, about why the Court shouldn't --- should pay any attention to that. You didn't, and I'm not going to either, so that Motion would be denied.

(Tr. at 29-31) (errors in original).

For the Class D felony, the court imposed the advisory eighteen-month sentence, see Ind.Code § 35-50-2-7(a), with twelve months suspended and twelve months of probation. For the Class A misdemeanor, the court imposed a suspended twelve-month sentence.

DISCUSSION AND DECISION

1. Abuse of Discretion

Fox first asserts the court abused its discretion by overlooking two miti-gators that justified alternative misdemeanor sentencing. However, Fox has not provided any analysis or authority suggesting the court was required to find and balance aggravators and mitigators when deciding whether to grant that request.

The controlling statute provides:

Notwithstanding subsection (a), if a person has committed a Class D felony, the court may enter judgment of conviction of a Class A misdemeanor and sentence accordingly. However, the court shall enter a judgment of conviction of a Class D felony if:
(1) the court finds that:
(A) the person has committed a pri- or, unrelated felony for which judgment was entered as a conviction of a Class A misdemeanor; and
(B) the prior felony was committed less than three (8) years before the second felony was committed;
(2) the offense is domestic battery as a Class D felony under IC 8542-2, 1.3; or
(3) the offense is possession of child pornography (IC 35-42-4-4(c)). *711 The court shall enter in the record, in detail, the reason for its action whenever it exercises the power to enter judgment of conviction of a Class A misdemeanor granted in this subsection.

Indiana Code § 35-50-2-7(b).

The statute requires a court to explain why it grants misdemeanor sentencing, but does not require it to explain why misdemeanor sentencing is not granted. Neither is the trial court required to find or balance aggravating or mitigating factors when deciding whether to grant a defendant's request for leniency. The trial court has broad discretion whether to grant leniency under Indiana Code § 35-50-2-7(b). See McAnalley v. State, 514 N.E.2d 831, 836 (Ind.1987) (finding no abuse of discretion in refusal to grant alternative misdemeanor sentencing). We decline Fox's invitation to review the court's finding and balancing of aggrava-tors and mitigators.

We find no abuse of discretion in the denial of Fox's request for alternative misdemeanor sentencing, despite Fox's remorse and the harmful impact of a felony conviction on Fox's family and employers. The trial court's questions and sentencing statement sufficiently explain the court's rationale. The possibility of license revocation was placed on Fox by his profession, which maintains high standards for those who will have access to drugs, patients, and sensitive personal information. Fox knew about that consequence before he committed his crimes, and he should have considered the impact of license revocation on his family and employers when deciding whether to possess drugs illegally, We see no abuse of discretion.

2. Inappropriateness

We may revise a sentence if we find it "inappropriate in light of the nature of the offense and the character of the offender." App. R. 7(B). To revise a sentence, we need not first find the trial court abused its discretion in determining the sentence.

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Bluebook (online)
916 N.E.2d 708, 2009 Ind. App. LEXIS 2441, 2009 WL 3817455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fox-v-state-indctapp-2009.