Frankie Lynn Pollard, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 24, 2019
• Docket: 19A-CR-1097
• 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 Oct 24 2019, 9:36 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 John Andrew Goodridge Curtis T. Hill, Jr. Evansville, Indiana Attorney General of Indiana Megan M. Smith Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Frankie Lynn Pollard, Jr., October 24, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1097 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable Kelli E. Fink, Appellee-Plaintiff. Magistrate Trial Court Cause No. 82C01-1804-F5-2860

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1097 | October 24, 2019 Page 1 of 5 [1] Frankie Lynn Pollard, Jr., appeals his sentence for operating a motor vehicle

after forfeiture of license for life as a level 5 felony and being an habitual

offender. We affirm.

Facts and Procedural History

[2] On April 19, 2018, law enforcement detained Pollard after observing that he

failed to stop at a traffic light. After discovering the status of his license, officers

placed him under arrest. The State charged him with operating a motor vehicle

after forfeiture of license for life as a level 5 felony and alleged that he was an

habitual offender. A jury found him guilty of the level 5 felony, and he pled

guilty to being an habitual offender pursuant to an agreement providing for a

two-year enhancement. The court found the fact Pollard pled guilty to being an

habitual offender and that the offense did not harm any property or person to be

mitigating and his criminal history to be aggravating. It sentenced him to four-

and-one-half years on the level 5 felony and enhanced the sentence by two years

for being an habitual offender.

Discussion

[3] Pollard claims that his sentence is inappropriate under Ind. Appellate Rule

7(B), that this Court should revise his sentence and impose the minimum

sentence of one year for his level 5 felony and enhance the sentence by two

years for being an habitual offender, and that an aggregate sentence of three

years would be appropriate. He argues that, although his trial counsel admitted

his character was not good, he pled guilty to being an habitual offender, that

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1097 | October 24, 2019 Page 2 of 5 “[a]ll in all, [he] received the maximum sentence under the law for a person

committing a Level 5 felony,” and that the nature of his offense is

unremarkable. Appellant’s Brief at 12. The State responds that Pollard has

failed to show that the nature of the offense or his character supports a

reduction of his sentence, that, contrary to his claim, he did not receive the

maximum sentence, and that he has an extensive criminal history including a

number of driving-related offenses and felonies.

[4] Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by

statute if, after due consideration of the trial court’s decision, [we find] that the

sentence is inappropriate in light of the nature of the offense and the character

of the offender.” The burden is on the defendant to persuade the appellate

court that his or her sentence is inappropriate. See Childress v. State, 848 N.E.2d

1073, 1080 (Ind. 2006). Ind. Code § 35-50-2-6 provides that a person who

commits a level 5 felony shall be imprisoned for a fixed term of between one

and six years with the advisory sentence being three years. Ind. Code § 35-50-2-

8 provides that the court shall sentence a person found to be an habitual

offender to an additional fixed term that is between two and six years for a

person convicted of a level 5 felony. Pollard received a sentence of four-and-

one-half years for his level 5 felony conviction which was enhanced by two

years for being an habitual offender.

[5] Our review of the nature of the offense reveals that Pollard operated a motor

vehicle after forfeiture of license for life. Our review of the character of the

offender reveals that he pled guilty to being an habitual offender pursuant to an

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1097 | October 24, 2019 Page 3 of 5 agreement providing that he would receive a two-year enhancement. The

presentence investigation report (“PSI”) indicates that Pollard was adjudicated

delinquent as a juvenile for criminal trespass and possession of a look-alike

substance. According to the PSI, his adult criminal history includes numerous

misdemeanor convictions, including at least three counts of operating a motor

vehicle without ever having received a license, false informing, criminal

trespass, failure to stop after an accident, public intoxication, driving while

suspended, disorderly conduct, resisting law enforcement, conversion, battery,

and possession of marijuana. It also indicates that he received felony

convictions for three counts of possession of cocaine or narcotic drug, forgery,

operating a vehicle as an habitual traffic violator as a class D felony in 2010,

operating a motor vehicle after lifetime forfeiture of driving privileges as a class

C felony in 2012, and escape. It shows a revocation of his community

corrections placement. The PSI also states that charges for possession of

methamphetamine were filed in another cause in July 2018. The PSI indicates

that Pollard reported that he began using alcohol at age twelve, began using

marijuana at age ten, and became a daily smoker at age sixteen. It also

indicates that the result of the risk assessment tool places him in the very high

risk to reoffend category.

[6] After due consideration, we conclude that Pollard has not sustained his burden

of establishing that his sentence is inappropriate in light of the nature of the

offense and his character.

[7] For the foregoing reasons, we affirm Pollard’s sentence.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1097 | October 24, 2019 Page 4 of 5 [8] Affirmed.

[9] Altice, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1097 | October 24, 2019 Page 5 of 5