Gerald Lynn West v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 12, 2017
• Docket: 84A04-1611-CR-2535
• Status: Published

Opinion

MEMORANDUM DECISION FILED Apr 12 2017, 10:51 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court

court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Gerald Lynn West, April 12, 2017 Appellant-Defendant, Court of Appeals Case No. 84A04-1611-CR-2535 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable Michael J. Lewis, Appellee-Plaintiff. Judge Trial Court Cause No. 84D06-1510-F2-2616

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2535 | April 12, 2017 Page 1 of 6 Case Summary [1] Gerald Lynn West (“West”) challenges his aggregate thirty-year sentence for

Dealing in Methamphetamine, as a Level 2 felony,1 Maintaining a Common

Nuisance, as a Level 6 felony,2 Battery, as a Level 5 felony,3 and Possession of

Marijuana, as a Class A misdemeanor.4 He presents the issue of whether his

sentence is inappropriate. We affirm.

Facts and Procedural History [2] On October 13, 2015, Terre Haute Police Department Officer Daniel LaFave

(“Officer LaFave”) initiated a traffic stop of a van driven by West, attached to a

trailer without operational brake lights. West produced a driver’s license but

was unable or unwilling to produce the vehicle’s registration and his proof of

insurance. West also denied knowing the name of his insurance provider.

Officer LaFave asked that West and his juvenile companion exit the vehicle.

[3] A canine police unit arrived, and the canine alerted to the presence of drugs.

As Officer Jeffrey Pupilli approached West to place him in handcuffs, West

turned and punched the officer in the face. West began to run away; he fell to

1 Ind. Code § 35-48-4-1.1(a)(2). 2 I.C. § 35-48-4-13(b)(2)(A) [now repealed and re-codified at I.C. § 35-45-1-5]. 3 I.C. § 35-42-2-1. 4 I.C. § 35-48-4-11(a)(1).

Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2535 | April 12, 2017 Page 2 of 6 the ground after an officer deployed his Taser. West was eventually subdued

and arrested by four police officers.

[4] After the struggle, West’s van was searched. Inside the van was a large

insulated bag containing two smaller bags. Inside the smaller bags officers

found 357.38 grams of crystal methamphetamine. The officers also seized 2.58

grams of marijuana, digital scales with white residue, and a pipe.

[5] West was charged with Dealing in Methamphetamine, Possession of

Methamphetamine, Maintaining a Common Nuisance, two counts of Resisting

Law Enforcement, Battery, and Possession of Marijuana. A jury convicted him

as charged. Due to double jeopardy concerns, the trial court entered judgments

of conviction and sentences upon only four counts. For Dealing in

Methamphetamine, West received a sentence of thirty years. He received

concurrent sentences of two years for Maintaining a Common Nuisance, three

years for Battery, and 180 days for Possession of Marijuana. This appeal

ensued.

Discussion and Decision [6] West requests that we revise his sentence pursuant to Indiana Appellate Rule

7(B). The authority granted to this Court by Article 7, § 6 of the Indiana

Constitution permitting appellate review and revision of criminal sentences is

implemented through Appellate Rule 7(B), which provides: “The Court may

revise a sentence authorized by statute if, after due consideration of the trial

Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2535 | April 12, 2017 Page 3 of 6 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.” Under this rule, and as

interpreted by case law, appellate courts may revise a sentence after due

consideration of the trial court’s decision, if the sentence is found to be

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

offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,

798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to

attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.

[7] West was convicted of Level 2, Level 5, and Level 6 felonies. He faced a

sentencing range of ten to thirty years, with 17 and 1/2 years as the advisory

sentence; one to six years, with three years as the advisory sentence; and 6

months to 2 and 1/2 years, with one year as the advisory sentence, respectively.

I.C. §§ 35-50-2-4.5, 35-50-2-6, 35-50-2-7. Upon conviction of a Class A

misdemeanor, West faced a sentence of up to one year in prison. I.C. § 35-50-3-

2. West’s thirty-year, three-year, two-year, and 180 day sentences are

concurrent, yielding an aggregate sentence for all offenses equal to the

maximum term for a Level 2 felony.

[8] As for the nature of West’s offenses, he possessed 357.38 grams of crystal

methamphetamine and 2.58 grams of marijuana. The offense of possession of

methamphetamine is elevated to a Level 2 felony upon possession of 10 or

more grams. West possessed an amount approximately 35 times this threshold

amount. He struck a police officer and fled. Four police officers were required

Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2535 | April 12, 2017 Page 4 of 6 to subdue and arrest him. West’s conduct took place in the presence of a

juvenile. These circumstances do not militate toward a lesser sentence.

[9] Regarding West’s character, he has a lengthy criminal history. In 1989, he was

sentenced to six and one-half years’ imprisonment in a federal prison for

distributing cocaine within 100 feet of a school and possession of a firearm. In

2000, West was convicted of Dealing in Cocaine and Dealing in a Schedule II

Controlled Substance. His thirty-year sentence was modified to twenty years,

and he was released from prison in 2007. In 2014, West was charged with

Dealing in Methamphetamine and Resisting Law Enforcement. The charges

were dismissed in 2015, after West obtained an order suppressing evidence. 5

[10] Awaiting trial for the instant charges, West wrote a letter to his wife suggesting

that she participate in putting forth one of two scenarios in which West would

not be culpable for possession of methamphetamine. He suggested that a

juvenile admit to stealing the drugs. Alternatively, he suggested that his wife

should claim: she wanted rid of West, she had an affair with a police officer,

and she and the police officer planted evidence to frame West. West’s criminal

history and conduct during incarceration do not speak well of his character.

5 A record of arrest, without more, does not establish the historical fact that a defendant committed a criminal offense, and thus the arrest is not evidence of a criminal history. Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005). However, a record of arrest may reveal that a defendant has not been deterred after subjection to the police authority of the state and the information may be relevant to the trial court’s assessment of a defendant’s character. Id.

Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2535 | April 12, 2017 Page 5 of 6 [11] West has failed to benefit from prior opportunities for rehabilitation. He has

not persuaded us that his thirty-year sentence is inappropriate.

[12] Affirmed.

Vaidik, C.J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2535 | April 12, 2017 Page 6 of 6