James A. Geyman, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 3, 2018
• Docket: 39A05-1709-CR-2200
• Status: Published

Opinion

FILED May 03 2018, 8:28 am

MEMORANDUM DECISION CLERK Indiana Supreme Court Court of Appeals and Tax Court Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any 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 R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

James A. Geyman, Jr., May 3, 2018

Appellant-Defendant, Court of Appeals Case No. 39A05-1709-CR-2200 v. Appeal from the Jefferson Circuit Court. The Honorable Darrell M. Auxier, State of Indiana, Judge. Appellee-Plaintiff. Trial Court Cause No. 39C01-1611-F3-1022

Friedlander, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 39A05-1709-CR-2200 | May 3, 2018 Page 1 of 6 [1] James Geyman appeals the sentence he received for his conviction of Level 4 1 felony possession of methamphetamine. We affirm.

[2] Geyman presents one issue for our review, which we restate as: whether

Geyman’s sentence is inappropriate in light of the nature of the offense and his

character.

[3] During a community corrections home visit in November 2016, officers found

methamphetamine in Geyman’s bedroom. Based upon this incident, Geyman

was charged with possession of methamphetamine as a Level 3 felony.

Pursuant to a plea agreement, Geyman subsequently pleaded guilty to Level 4

felony possession of methamphetamine and admitted to violating his probation

in 39C01-1512-F6-1230 (“F6-1230”) and 39C01-1605-F6-478 (“F6-478”). In

exchange for his plea and admission, the State agreed to dismiss any other

pending charges in the current case as well as all counts in 39C01-1612-CM-

1150 (“CM-1150”). The parties left sentencing to the trial court but agreed to a

cap of nine years on the total sentence for the current case as well as any time

imposed for Geyman’s violation of his probation in causes F6-1230 and F6-478.

The court sentenced Geyman to six years executed. He now appeals.

[4] Although a trial court may have acted within its lawful discretion in imposing a

sentence, article VII, sections 4 and 6 of the Indiana Constitution authorize

independent appellate review and revision of sentences through Indiana

1 Ind. Code § 35-48-4-6.1 (2014).

Court of Appeals of Indiana | Memorandum Decision 39A05-1709-CR-2200 | May 3, 2018 Page 2 of 6 Appellate Rule 7(B), which provides that we may revise a sentence authorized

by statute if, after due consideration of the trial court’s decision, we determine

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

character of the offender. Thompson v. State, 5 N.E.3d 383 (Ind. Ct. App. 2014).

However, “we 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.” Stewart v. State, 866 N.E.2d 858,

866 (Ind. Ct. App. 2007). The principal role of appellate review under Rule

7(B) is to attempt to leaven the outliers, not to achieve a perceived “correct”

result in each case. Garner v. State, 7 N.E.3d 1012 (Ind. Ct. App. 2014). In

other words, the question under Appellate Rule 7(B) is not whether another

sentence is more appropriate; rather, the question is whether the sentence

imposed is inappropriate. King v. State, 894 N.E.2d 265 (Ind. Ct. App. 2008).

The defendant bears the burden of persuading the appellate court that his or her

sentence is inappropriate. Childress v. State, 848 N.E.2d 1073 (Ind. 2006).

[5] To assess whether the sentence is inappropriate, we look first to the statutory

range established for the class of the offense. Here, the offense is a Level 4

felony, for which the advisory sentence is six years, with a minimum sentence

of two years and a maximum sentence of twelve years. Ind. Code § 35-50-2-5.5

(2014). Geyman was sentenced to the advisory term of six years.

[6] Next, we look to the nature of the offense and the character of the offender. As

to the nature of the current offense, we note that Geyman, while on probation

Court of Appeals of Indiana | Memorandum Decision 39A05-1709-CR-2200 | May 3, 2018 Page 3 of 6 for other drug offenses, was in possession of at least ten grams of

methamphetamine. Moreover, while his prior offenses were Level 6 felonies,

his current offense was charged as a Level 3 felony, indicating an escalation in

the nature of his criminal activity.

[7] With regard to the character of the offender, we observe that Geyman’s

criminal history, although spanning only one short year, is noteworthy. Just

prior to committing this offense in November 2016, Geyman was convicted of

Level 6 felony possession of methamphetamine in F6-1230 and Level 6 felony

possession of methamphetamine in F6-478 in July 2016. The significance of a

criminal history in assessing a defendant’s character and an appropriate

sentence varies based on the gravity, nature, and proximity of prior offenses in

relation to the current offense, as well as the number of prior offenses.

Sandleben v. State, 29 N.E.3d 126 (Ind. Ct. App. 2015), trans. denied. In

summary, Geyman has two prior Level 6 felony convictions, both of which

arise from his possession of methamphetamine—the same offense here—and all

of which occurred within the span of a single year.

[8] In addition, Geyman was on probation at the time he committed the current

offense. He had been given suspended sentences for his convictions in F6-1230

and F6-478 and was placed on supervised probation. He was serving these

terms of probation when he committed the current offense. The defendant’s

commission of a further offense while on probation is a “substantial

consideration” in our assessment of his character. Rich v. State, 890 N.E.2d 44,

54 (Ind. Ct. App. 2008), trans. denied; see also Ind. Code § 35-38-1-7.1(a)(6)

Court of Appeals of Indiana | Memorandum Decision 39A05-1709-CR-2200 | May 3, 2018 Page 4 of 6 (2015) (stating that, in determining a defendant’s sentence, court may consider

fact that defendant recently violated conditions of probation as aggravating

circumstance).

[9] We also note that, in its sentencing order, the trial court remarked that Geyman

was on probation when he committed this offense, indicating he is not likely to

respond affirmatively to an additional probationary period; the current offense

involved a large amount of methamphetamine; Geyman had not accepted

responsibility because, after giving a factual basis for the offense and pleading

guilty, he subsequently claimed at his sentencing hearing to have no knowledge

of the existence of the methamphetamine; and Geyman had ample opportunity

to receive substance abuse treatment but did not avail himself of those

opportunities.

[10] Indeed, while Geyman was aware of his methamphetamine addiction following

his conviction of not one but two Level 6 felonies in July 2016, he chose not to

seek treatment, although having agreed and being court-ordered to do so. See

Caraway v. State, 959 N.E.2d 847 (Ind. Ct. App. 2011) (where defendant is

aware of chemical dependency and chooses not to seek help, failure to do so

can be considered aggravating factor), trans. denied.

[11] For the reasons stated, we conclude that Geyman’s sentence is not

inappropriate given the nature of the offense and his character.

[12] Judgment affirmed.

Court of Appeals of Indiana | Memorandum Decision 39A05-1709-CR-2200 | May 3, 2018 Page 5 of 6 Robb, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 39A05-1709-CR-2200 | May 3, 2018 Page 6 of 6