Jimmy Dale Acrey v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 6, 2020
• Docket: 19A-CR-2536
• 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 Mar 06 2020, 10:46 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 Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jimmy Dale Acrey, March 6, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2536 v. Appeal from the Henry Circuit Court State of Indiana, The Honorable Appellee-Plaintiff. Kit C. Dean Crane Trial Court Cause No. 33C02-1806-F2-7

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2536 | March 6, 2020 Page 1 of 5 [1] Following his guilty plea to possession of methamphetamine as a Level 3

felony,1 Jimmy Dale Acrey (“Acrey”) was sentenced to sixteen years in the

Department of Correction. Contending that his sentence is inappropriate in

light of both the nature of the offense and defendant’s character, he now

appeals.

[2] We affirm.

Facts and Procedural History

[3] Acrey’s sale of methamphetamine to a confidential informant prompted police

to execute a search warrant at his home on June 27, 2018. During the search,

police found over 360 grams of methamphetamine, drug pipes, a handgun,

marijuana, drug paraphernalia, and a large amount of cash.

[4] The State charged Acrey with two counts of dealing in methamphetamine,

unlawful possession of a firearm by a serious violent felon, unlawful possession

of a syringe, two counts of maintaining a common nuisance, possession of

paraphernalia, and possession of marijuana. Acrey agreed to plead guilty to

possession of methamphetamine as a Level 3 felony, and the State agreed to

dismiss the remaining counts and to not seek an habitual enhancement.

1 See Ind. Code § 35-48-4-1.1.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2536 | March 6, 2020 Page 2 of 5 Sentencing was left to the trial court’s discretion, and the trial court sentenced

Acrey to sixteen years.

Discussion and Decision [5] Acrey argues that his sentence is inappropriate. Article 7, Sections 4 and 6 of

the Indiana Constitution authorize independent appellate review and revision

of a sentence imposed by the trial court. Roush v. State, 875 N.E.2d 801, 812

(Ind. Ct. App. 2007). Pursuant to Indiana Appellate Rule 7(B), this court “may

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

court’s decision, the [c]ourt finds that the sentence is inappropriate in light of

the nature of the offense and the character of the offender.” Acrey bears the

burden of persuading us that his sentence is inappropriate. Id.

[6] Acrey’s criminal history dates back to 1960. He was placed in the Indiana Boys

School five times in five years beginning when he committed auto theft and

burglary at the age of twelve. As an adult, he has nine felony convictions in

Indiana, several more in Kentucky, and numerous misdemeanor convictions.

Acrey has had a serious drug habit for many years and has used

methamphetamine since 1985. He had treatment opportunities in a therapeutic

community at New Castle Correctional Facility for fourteen months, but he

admitted he only used that program to earn a time cut. He continued to use

drugs while he was in prison, and he admitted using methamphetamine while

in jail pending trial in this case.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2536 | March 6, 2020 Page 3 of 5 [7] During the sentencing hearing, the trial court referenced Acrey’s age of seventy-

one years old, noting that “somebody at that age can control their own

destiny.” Tr. II at 38. The trial court also noted that he has ill health and is an

addict. However, the trial court noted:

I look through this, and there is a long and storied history of felonies, executed time, there’s been efforts at probation, there’s been efforts at community corrections, there’s been efforts in the past with regard to treatment with – at a minimum, within the Department of Corrections, all those things did not rehabilitate Mr. Acrey, and those things did not stop the current matter that’s before the Court right now. Mr. Acrey’s criminal activity far outweighs any purported mitigators, and the Court doesn’t recognize any mitigators with regard to Mr. Acrey. Mr. Acrey, frankly, sir, with your history you’re pretty fortunate to have avoided a thirty-year sentence on a level two felony in my humble opinion.

Id. at 39.

[8] As this court has recognized, the nature of the offense is found in the details

and circumstances of the commission of the offense and the defendant’s

participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). Acrey was in

possession of nearly 400 grams of methamphetamine, many times the amount

necessary to violate the statute. In addition, Acrey received a significant benefit

from the plea agreement by having seven charges dismissed and avoiding an

habitual offender enhancement. Furthermore, Acrey’s character warrants the

sentence imposed. He has an extensive criminal history and a lengthy pattern

of drug use without any serious attempt at rehabilitation. Acrey has failed to

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2536 | March 6, 2020 Page 4 of 5 establish that the sixteen-year sentence was inappropriate in light of either the

nature of the offense or defendant’s character.

[9] Affirmed.

Bailey, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2536 | March 6, 2020 Page 5 of 5