MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 12 2017, 10:32 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court 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 Nicholas A. Siler Curtis T. Hill, Jr. West Baden Springs, Indiana Attorney General of Indiana
Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
John Paul Jones, April 12, 2017 Appellant-Defendant, Court of Appeals Case No. 51A04-1606-CR-1420 v. Appeal from the Martin Circuit Court State of Indiana, The Honorable Lynne E. Ellis, Appellee-Plaintiff Judge Trial Court Cause No. 51C01-1507-F5-111
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 51A04-1606-CR-1420 | April 12, 2017 Page 1 of 8 [1] John Paul Jones pled guilty to dealing in methamphetamine, a Level 5 felony,
and was sentenced to four years in prison with one year suspended to
probation. On appeal, Jones challenges his sentence in two respects: 1) Jones
contends that the trial court abused its sentencing discretion and 2) he claims
his sentence is inappropriate.
[2] We affirm.
Facts & Procedural History
[3] On July 20, 2015, the State charged Jones with Level 5 felony dealing in
methamphetamine (Count I), Level 6 felony maintaining a common nuisance
(Count II), Level 6 felony possession of methamphetamine (Count III), Level 6
felony possession of chemical reagents or precursors with intent to manufacture
a controlled substance (Count IV), and Class C misdemeanor possession of
paraphernalia (Count V). After entering into a plea agreement with the State,
Jones pled guilty to Count I. In exchange, the State dismissed the remaining
charges and agreed to a sentencing cap of four years in prison. The trial court
accepted the plea agreement on December 1, 2015. Shortly thereafter, a
presentence investigation report (PSI) was filed with the trial court.
[4] After several delays occasioned by Jones, including a change of counsel, Jones
reaffirmed his guilty plea at a hearing on May 2, 2016. The trial court then
directed Jones to review the previously filed PSI with his new counsel to
determine if he wanted to make any additions or changes. In this regard, the
court noted that it would like “a better idea as it relates to sentencing because
Court of Appeals of Indiana | Memorandum Decision 51A04-1606-CR-1420 | April 12, 2017 Page 2 of 8 [the PSI] was kind of a no answer PSI.” Transcript at 45. An amended PSI was
filed on May 13, 2016. Although he made some modifications, Jones
continued to report that he had never used illegal drugs and that he was set up
by a cousin with respect to the instant offense.
[5] At the sentencing hearing on May 16, 2016, Jones testified that everything in
the amended PSI was correct. On cross examination, however, he admitted
that he had a problem with methamphetamine use and that he had previously
lied to the probation officer in this regard. Still Jones downplayed his use of the
drug, testifying that he used methamphetamine only about thirteen times over a
two-year period. Additionally, on re-direct, Jones acknowledged that even
though he believed he was set up, he did engage in the illegal activity. At the
conclusion of the sentencing hearing, defense counsel asked that the court
impose a two-year sentence followed by probation, with a recommendation of
purposeful incarceration.
[6] The trial court imposed a four-year prison sentence with one year suspended to
probation. The court also entered a recommendation of purposeful
incarceration. Jones appeals from the sentence imposed. Additional facts will
be provided below as needed.
Discussion & Decision
1. Abuse of Discretion
Court of Appeals of Indiana | Memorandum Decision 51A04-1606-CR-1420 | April 12, 2017 Page 3 of 8 [7] Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218. “An abuse of discretion occurs if the decision is ‘clearly against the logic
and effect of the facts and circumstances before the court or the reasonable,
probable, and actual deductions to be drawn therefrom.’” Id. at 490 (quoting
K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). A trial court may abuse its
sentencing discretion in a number of ways, including: (1) failing to enter a
sentencing statement at all; (2) entering a sentencing statement that includes
aggravating and mitigating factors that are unsupported by the record; (3)
entering a sentencing statement that omits reasons that are clearly supported by
the record; or (4) entering a sentencing statement that includes reasons that are
improper as a matter of law. Id. at 490-91. Because trial courts are no longer
obligated to weigh aggravating and mitigating factors when imposing a
sentence, a trial court cannot be said to have abused its discretion in failing to
properly weigh such factors. Id. at 491.
[8] Jones’s first argument heading asserts that the trial court “abused its discretion
in issuing the maximum sentence under the terms of the plea agreement, albeit
with one year suspended, and was not commensurate with the offense and the
Defendant’s criminal history.” Appellant’s Brief at 9. The totality of his
argument follows:
While the Court took into a account [sic] a light prior criminal record as a mitigating circumstance, it improperly balanced that out against that he did not have a stable home if was [sic] released and did not know the names of persons who could
Court of Appeals of Indiana | Memorandum Decision 51A04-1606-CR-1420 | April 12, 2017 Page 4 of 8 provide him with a residence. However, he gave the name “Pee Wee Jacob Tussey,” as a person from whom he may be able to secure housing, near the river in Shoals.
Id.
[9] We find his brief argument difficult to decipher. To the extent Jones is asserting
that the trial court weighed the factors improperly, this argument is not
available on appeal. See Anglemyer, 868 N.E.2d at 491.
[10] Jones might also be arguing that the court’s finding regarding his housing
instability is not supported by the evidence. On the contrary, the record amply
supports a finding that Jones had made no plans for housing upon his release to
probation. Other than his co-defendant son, Jones reported having no friends
and no contact with family members. He had been determined to be ineligible
for the community corrections program due to his lack of employment and
housing. Although he claimed at the sentencing hearing to have two available
housing options, his testimony made clear that he had not established any
arrangements with these individuals. He simply planned to talk with one of
them upon his release. Jones has failed to establish an abuse of discretion.
2. Appropriateness
[11] Jones next argues that his sentence is inappropriate in light of his character and
the nature of his offense. Although a trial court may have acted within its
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 12 2017, 10:32 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court 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 Nicholas A. Siler Curtis T. Hill, Jr. West Baden Springs, Indiana Attorney General of Indiana
Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
John Paul Jones, April 12, 2017 Appellant-Defendant, Court of Appeals Case No. 51A04-1606-CR-1420 v. Appeal from the Martin Circuit Court State of Indiana, The Honorable Lynne E. Ellis, Appellee-Plaintiff Judge Trial Court Cause No. 51C01-1507-F5-111
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 51A04-1606-CR-1420 | April 12, 2017 Page 1 of 8 [1] John Paul Jones pled guilty to dealing in methamphetamine, a Level 5 felony,
and was sentenced to four years in prison with one year suspended to
probation. On appeal, Jones challenges his sentence in two respects: 1) Jones
contends that the trial court abused its sentencing discretion and 2) he claims
his sentence is inappropriate.
[2] We affirm.
Facts & Procedural History
[3] On July 20, 2015, the State charged Jones with Level 5 felony dealing in
methamphetamine (Count I), Level 6 felony maintaining a common nuisance
(Count II), Level 6 felony possession of methamphetamine (Count III), Level 6
felony possession of chemical reagents or precursors with intent to manufacture
a controlled substance (Count IV), and Class C misdemeanor possession of
paraphernalia (Count V). After entering into a plea agreement with the State,
Jones pled guilty to Count I. In exchange, the State dismissed the remaining
charges and agreed to a sentencing cap of four years in prison. The trial court
accepted the plea agreement on December 1, 2015. Shortly thereafter, a
presentence investigation report (PSI) was filed with the trial court.
[4] After several delays occasioned by Jones, including a change of counsel, Jones
reaffirmed his guilty plea at a hearing on May 2, 2016. The trial court then
directed Jones to review the previously filed PSI with his new counsel to
determine if he wanted to make any additions or changes. In this regard, the
court noted that it would like “a better idea as it relates to sentencing because
Court of Appeals of Indiana | Memorandum Decision 51A04-1606-CR-1420 | April 12, 2017 Page 2 of 8 [the PSI] was kind of a no answer PSI.” Transcript at 45. An amended PSI was
filed on May 13, 2016. Although he made some modifications, Jones
continued to report that he had never used illegal drugs and that he was set up
by a cousin with respect to the instant offense.
[5] At the sentencing hearing on May 16, 2016, Jones testified that everything in
the amended PSI was correct. On cross examination, however, he admitted
that he had a problem with methamphetamine use and that he had previously
lied to the probation officer in this regard. Still Jones downplayed his use of the
drug, testifying that he used methamphetamine only about thirteen times over a
two-year period. Additionally, on re-direct, Jones acknowledged that even
though he believed he was set up, he did engage in the illegal activity. At the
conclusion of the sentencing hearing, defense counsel asked that the court
impose a two-year sentence followed by probation, with a recommendation of
purposeful incarceration.
[6] The trial court imposed a four-year prison sentence with one year suspended to
probation. The court also entered a recommendation of purposeful
incarceration. Jones appeals from the sentence imposed. Additional facts will
be provided below as needed.
Discussion & Decision
1. Abuse of Discretion
Court of Appeals of Indiana | Memorandum Decision 51A04-1606-CR-1420 | April 12, 2017 Page 3 of 8 [7] Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218. “An abuse of discretion occurs if the decision is ‘clearly against the logic
and effect of the facts and circumstances before the court or the reasonable,
probable, and actual deductions to be drawn therefrom.’” Id. at 490 (quoting
K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). A trial court may abuse its
sentencing discretion in a number of ways, including: (1) failing to enter a
sentencing statement at all; (2) entering a sentencing statement that includes
aggravating and mitigating factors that are unsupported by the record; (3)
entering a sentencing statement that omits reasons that are clearly supported by
the record; or (4) entering a sentencing statement that includes reasons that are
improper as a matter of law. Id. at 490-91. Because trial courts are no longer
obligated to weigh aggravating and mitigating factors when imposing a
sentence, a trial court cannot be said to have abused its discretion in failing to
properly weigh such factors. Id. at 491.
[8] Jones’s first argument heading asserts that the trial court “abused its discretion
in issuing the maximum sentence under the terms of the plea agreement, albeit
with one year suspended, and was not commensurate with the offense and the
Defendant’s criminal history.” Appellant’s Brief at 9. The totality of his
argument follows:
While the Court took into a account [sic] a light prior criminal record as a mitigating circumstance, it improperly balanced that out against that he did not have a stable home if was [sic] released and did not know the names of persons who could
Court of Appeals of Indiana | Memorandum Decision 51A04-1606-CR-1420 | April 12, 2017 Page 4 of 8 provide him with a residence. However, he gave the name “Pee Wee Jacob Tussey,” as a person from whom he may be able to secure housing, near the river in Shoals.
Id.
[9] We find his brief argument difficult to decipher. To the extent Jones is asserting
that the trial court weighed the factors improperly, this argument is not
available on appeal. See Anglemyer, 868 N.E.2d at 491.
[10] Jones might also be arguing that the court’s finding regarding his housing
instability is not supported by the evidence. On the contrary, the record amply
supports a finding that Jones had made no plans for housing upon his release to
probation. Other than his co-defendant son, Jones reported having no friends
and no contact with family members. He had been determined to be ineligible
for the community corrections program due to his lack of employment and
housing. Although he claimed at the sentencing hearing to have two available
housing options, his testimony made clear that he had not established any
arrangements with these individuals. He simply planned to talk with one of
them upon his release. Jones has failed to establish an abuse of discretion.
2. Appropriateness
[11] Jones next argues that his sentence is inappropriate in light of his character and
the nature of his offense. Although a trial court may have acted within its
lawful discretion in imposing a sentence, Article 7, Sections 4 and 6 of the
Indiana Constitution authorize independent appellate review and revision of a
Court of Appeals of Indiana | Memorandum Decision 51A04-1606-CR-1420 | April 12, 2017 Page 5 of 8 sentence imposed by the trial court. Alvies v. State, 905 N.E.2d 57, 64 (Ind. Ct.
App. 2009) (citing Anglemyer, 868 N.E.2d at 491). This appellate authority is
implemented through Indiana Appellate Rule 7(B), which provides that a court
“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.” Anglemyer, 868
N.E.2d at 491. Nevertheless, “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 appellant bears the
burden of persuading us that his sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
[12] The determination of whether we regard a sentence as inappropriate “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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008)). “The principal role of such review is
to attempt to leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259
(Ind. 2013). It is not our goal in this endeavor to achieve the perceived
“correct” sentence in each case. Knapp v. State, 9 N.E.3d 1274, 1292 (Ind.
2014). Accordingly, “the question under Appellate Rule 7(B) is not whether
another sentence is more appropriate; rather, the question is whether the
Court of Appeals of Indiana | Memorandum Decision 51A04-1606-CR-1420 | April 12, 2017 Page 6 of 8 sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct.
App. 2008) (emphasis in original).
[13] To assess the appropriateness of a sentence, we look first to the statutory range
established for the classification of the relevant offense. A Level 5 felony has a
sentencing range of one to six years, with the advisory sentence being three
years. Ind. Code § 35-50-2-6. Jones received a four-year sentence with one of
those years suspended to probation. Thus, his sentence was not far from the
advisory sentence.
[14] With respect to the nature of the offense, Jones simply asserts that he had “a
‘one pot’ methamphetamine manufacture in his residence.” Appellant’s Brief at
10. But there was more. The probable cause affidavit attached to the PSI
reveals that in addition to the lab, police found multiple precursors throughout
the mobile home, as well as two smoking devices and aluminum foil with burnt
residue. Further, Jones’s co-defendant was his own adult son. Although Jones
pled guilty, he continued to complain that he was set up by his cousin. He also
obtained a favorable sentencing cap in exchange for his plea, as well as
dismissal of several additional counts.
[15] Turning to Jones’s character, we find significant – as did the trial court – his
denial of ever using illegal drugs until he finally admitted such use when
questioned by the State. Even then, he only acknowledged using
methamphetamine thirteen times in the two years leading up to his arrest.
Under the circumstances, his recent claim of wanting help with his drug
Court of Appeals of Indiana | Memorandum Decision 51A04-1606-CR-1420 | April 12, 2017 Page 7 of 8 problem rings hollow. Additionally, at the age of fifty-three, Jones lacks
employment and stable housing and has no relationship with his siblings, his
grandchildren, or four of his five children – the exception being his co-
defendant son with whom he was living at the time of the offense. On a
positive note, we do recognize Jones’s limited criminal history.
[16] Jones has not shown that his four-year sentence with one year suspended to
probation is inappropriate. We, therefore, affirm the sentence imposed.
[17] Judgment affirmed.
Kirsch, J. and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 51A04-1606-CR-1420 | April 12, 2017 Page 8 of 8