Jason W. Green v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 5, 2017
• Docket: 51A01-1702-CR-428
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Sep 05 2017, 6:35 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals collateral estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jacob P. Wahl Curtis T. Hill, Jr. Ripstra Law Office Attorney General of Indiana Jasper, Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jason W. Green, September 5, 2017

Appellant-Defendant, Court of Appeals Case No. 51A01-1702-CR-428

v. Appeal from the Martin Circuit Court State of Indiana, The Hon. Lynne E. Ellis, Judge Trial Court Cause No. Appellee-Plaintiff. 51C01-1608-F4-123

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 51A01-1702-CR-428 | September 5, 2017 Page 1 of 9 Case Summary [1] After a police search of Appellant-Defendant Jason Green’s truck uncovered,

inter alia, methamphetamine, the State charged Green with Level 4 felony

dealing in methamphetamine, Level 6 felony methamphetamine possession,

Level 6 felony maintaining a common nuisance, and Class C misdemeanor

paraphernalia possession. Green pled guilty to Level 5 felony dealing in

methamphetamine pursuant to a written plea agreement in which he agreed to

a three-year sentence in exchange for dismissal of the remaining charges against

him. Additionally, Green’s placement was left to the discretion of the trial

court. The trial court sentenced Green to three years in the purposeful

incarceration program1 in the Department of Correction (“DOC”). Green

contends that the trial court abused its discretion in ordering incarceration and

that his placement is inappropriately harsh. Because we disagree, we affirm.

Facts and Procedural History [2] On August 17, 2016, Green’s vehicle was stopped by Major T.A. Burkhardt of

the Martin County Sheriff’s Department after Green failed to completely stop

his truck at a stop sign. A K-9 conducted a sweep of Green’s vehicle and

indicated the presence of narcotics. Major Burkhardt searched the vehicle,

1 Purposeful incarceration is for “chemically addicted offenders” who, upon successful completion of an “IDOC Therapeutic community[,]” can seek a sentence modification. See http://www.in.gov/idoc/ 2798.htm (last visited August 25, 2017).

Court of Appeals of Indiana | Memorandum Decision 51A01-1702-CR-428 | September 5, 2017 Page 2 of 9 discovering Green’s wallet and driver’s license under the driver seat, $1189.00

in cash, scales, and 1.4 grams of methamphetamine.

[3] On August 18, 2016, the State charged Green with Level 4 felony dealing in

methamphetamine, Level 6 felony methamphetamine possession, Level 6

felony maintaining a common nuisance, and Class C misdemeanor

paraphernalia possession. On January 31, 2017, Green pled guilty pursuant to

a written plea agreement to Level 5 felony dealing in methamphetamine and

agreed to a three-year sentence in exchange for the dismissal of the remaining

charges. Placement of Green—whether in the DOC or in the Martin County

Community Corrections program—was left to the trial court’s discretion.

[4] Green admitted at the sentencing hearing that he had been dealing

methamphetamine in the community “on occasion” and for a “few months.”

Tr. p. 24. Finding Green’s guilty plea mitigating, the trial court found two

aggravating circumstances: 1) Green’s act of dealing methamphetamine in the

community and 2) that Green failed to join a substance abuse treatment class

while in jail. The trial court sentenced Green to three years in the DOC,

allowing for purposeful incarceration.

Discussion and Decision [5] At the outset, we note that Green incorrectly claims that his plea agreement

capped his sentence at three years when, in fact, the record is clear that he

agreed to a three-year executed sentence with only the question of placement

Court of Appeals of Indiana | Memorandum Decision 51A01-1702-CR-428 | September 5, 2017 Page 3 of 9 being within the trial court’s discretion. Consequently, we review Green’s

claims in terms of his placement, not the length of his sentence.

I. Abuse of Discretion [6] Under our current sentencing scheme, “the trial court must enter a statement

including reasonably detailed reasons or circumstances for imposing a

particular sentence.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),

modified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2008) (“Anglemyer II”).

We review the sentence for an abuse of discretion. Id. An abuse of discretion

occurs if “the decision is clearly against the logic and effect of the facts and

circumstances.” Id.

[7] A trial court abuses its discretion if it (1) fails “to enter a sentencing statement at

all[,]” (2) enters “a sentencing statement that explains reasons for imposing a

sentence–including a finding of aggravating and mitigating factors if any–but

the record does not support the reasons,” (3) enters a sentencing statement that

“omits reasons that are clearly supported by the record and advanced for

consideration,” or (4) considers reasons that “are improper as a matter of law.”

Id. at 490-91. If the trial court has abused its discretion, we will remand for

resentencing “if we cannot say with confidence that the trial court would have

imposed the same sentence had it properly considered reasons that enjoy

support in the record.” Id. at 491. However, the relative weight or value

assignable to reasons properly found, or to those which should have been

found, is not subject to review for abuse of discretion. Id. There is no

Court of Appeals of Indiana | Memorandum Decision 51A01-1702-CR-428 | September 5, 2017 Page 4 of 9 requirement that a trial court generate a list of aggravating and mitigating

circumstances, only that it state reasonably detailed reasons. Id. at 490. A

single aggravating factor can support upper-level sentences. See Willey v. State,

712, N.E.2d 434, 446 (Ind. 1999) (stating that a single aggravating circumstance

may be sufficient to support an enhanced sentence). Although material

elements of the crime may not be considered as aggravating factors at

sentencing, the particularized circumstances of the elements properly may be

considered as such. See, e.g., McElroy v. State, 865 N.E.2d 584, 598-99 (Ind.

2007); Scott v. State, 840 N.E.2d 376, 382 (Ind. Ct. App. 2006).

A. Aggravating Circumstances [8] The trial court found two aggravating circumstances:2 1) Green’s act of dealing

methamphetamine in the community and 2) that Green failed to join a

substance abuse treatment class while in jail. Green argues that the trial court

abused its discretion in finding the first aggravating circumstance on the basis

that it is merely restating an element of his crime, dealing in methamphetamine.

Under the circumstances of this case, this is incorrect. Green pled guilty to

possession methamphetamine with the intent to deliver it, not the actual

delivery of it. He did, however, admit to actual dealing of methamphetamine in

2 Green claims that the trial court found four distinct aggravating circumstances. We disagree. Green claims that the trial court found him responsible for deaths in Martin County and that Green’s son had forgiven him. The trial court merely observed that “it [(methamphetamine)] is killing people in my community” without even suggesting that Green himself was responsible for any person’s death. Tr. p. 35. The trial court also merely observed that Green’s fourteen-year-old son had forgiven him without identifying this fact as aggravating. In any event, we are at a loss to understand how the forgiveness of Green’s son could be considered aggravating.

Court of Appeals of Indiana | Memorandum Decision 51A01-1702-CR-428 | September 5, 2017 Page 5 of 9 the community over the course of a few months. Because Green’s dealing of

methamphetamine in the community over the course of a few months was not

the crime to which he pled guilty, the trial court did not abuse its discretion in

this regard.

B. Mitigating Circumstances [9] Green argues that the trial court abused its discretion in failing to find the

hardship on his son to be a mitigating circumstance. Determining what is a

proper mitigating circumstance is within the discretion of the trial court. See

Rogers v. State, 878 N.E.2d 269 (Ind. Ct. App. 2007), trans. denied. An allegation

that the trial court failed to identify or find a mitigating factor requires the

defendant to establish that the mitigating evidence is not only supported by the

record but also that the mitigating evidence is significant. See Anglemyer II, 875

N.E.2d at 220–21.

[10] One of the factors the trial court may consider as mitigating is whether

“[i]mprisonment of the person will result in undue hardship to the person or the

dependents of the person.” See Ind. Code §35-38-1-7.1(b)(10). Green, however,

did not present this allegedly mitigating circumstance to the trial court in any

specific terms. If the defendant does not advance a factor to be mitigating at

sentencing, we will presume that the factor is not significant and the defendant

is precluded from advancing it as a mitigating circumstance for the first time on

appeal. Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000). While Green noted

his contribution of child support to his son who lives with his ex-wife, Green

Court of Appeals of Indiana | Memorandum Decision 51A01-1702-CR-428 | September 5, 2017 Page 6 of 9 failed to present any evidence or argument that his ex-wife had inadequate

resources to raise their son during his short period of incarceration. In short,

Green did not argue that his son would suffer any undue hardship during his

incarceration. Consequently, Green has waived this particular claim for

appellate consideration.

II. Appropriateness of Sentence [11] We “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.” Ind.

Appellate Rule 7(B). “Although appellate review of sentences must give due

consideration to the trial court’s sentence because of the special expertise of the

trial bench in making sentencing decisions, Appellate Rule 7(B) is an

authorization to revise sentences when certain broad conditions are satisfied.”

Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations

and quotation marks omitted). “[W]hether we regard a sentence as appropriate

at the end of the day turns on our sense of the culpability of the defendant, the

severity of the crime, the damage done to others, and myriad other factors that

come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

2008). In addition to the “due consideration” we are required to give to the

trial court’s sentencing decision, “we understand and recognize the unique

perspective a trial court brings to its sentencing decisions.” Rutherford v. State,

866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Following Green’s guilty plea to

Level 5 felony methamphetamine delivery, the trial court sentenced him to

Court of Appeals of Indiana | Memorandum Decision 51A01-1702-CR-428 | September 5, 2017 Page 7 of 9 three years of purposeful incarceration in the DOC. “A person who commits a

Level 5 felony (for a crime committed after June 30, 2014) shall be imprisoned

for a fixed term of between one (1) and six (6) years, with the advisory sentence

being three (3) years.” Ind. Code § 35-50-2-6(b). Again, we limit our review to

whether Green’s placement was appropriate, not the length of his sentence,

which was fixed at three years by the plea agreement.

[12] The nature of Green’s offense justifies incarceration, as opposed to community

corrections. Green was convicted of possessing enough methamphetamine to

support a Level 5 felony conviction, he admitted to facts that would have

supported a Level 4 conviction, see Ind. Code § 35-48-4-1.1(c)(1), for which he

could have received a sentence of twelve years of incarceration. See Ind. Code §

35-50-2-5.5. Moreover, Green’s offense was admittedly only the latest part of

his ongoing methamphetamine dealing operation in the community. The

nature of Green’s offense justifies his incarceration.

[13] Green’s character also justifies his incarceration. Although Green’s criminal

history is not lengthy, he does have a 1993 conviction for Class B misdemeanor

reckless driving and a 2002 conviction for Class A misdemeanor marijuana

possession. Green, who was forty-four years old at sentencing, admitted to first

taking methamphetamine when he was twenty-three, using it frequently in his

thirties, and taking it last the day before his arrest in this case. Although Green

has graduated from a methamphetamine user to a methamphetamine dealer,

his actions do not show that he has fully acknowledged his substance-abuse

issues, as shown by his failure to enroll in a substance-abuse treatment program

Court of Appeals of Indiana | Memorandum Decision 51A01-1702-CR-428 | September 5, 2017 Page 8 of 9 while in jail prior to his guilty plea in this case. Perhaps commitment to

purposeful incarceration will provide Green with the help he apparently needs.

In light of the nature of his offense and his character, Green has failed to

establish that his commitment to purposeful incarceration in the DOC in

inappropriate.

[14] We affirm the judgment of the trial court.

May, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 51A01-1702-CR-428 | September 5, 2017 Page 9 of 9