John Palatas v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: August 29, 2014
• Docket: 89A05-1403-CR-134
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Aug 29 2014, 9:29 am 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:

RONALD J. MOORE GREGORY F. ZOELLER The Moore Law Firm, LLC Attorney General of Indiana Richmond, Indiana LYUBOV GORE Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

JOHN PALATAS, ) ) Appellant-Defendant, ) ) vs. ) No. 89A05-1403-CR-134 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE WAYNE CIRCUIT COURT The Honorable David A. Kolger, Judge Cause Nos. 89C01-1304-FA-12, 89C01-1312-FA-37

August 29, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge CASE SUMMARY

During the Spring of 2013, Appellant-Defendant John Palatas sold heroin on at least

four different occasions. On one of these occasions, Palatas sold more than three grams of

heroin, on another he sold the heroin within 1000 feet of a school property, and on another he

sold the heroin within 1000 feet of a youth program center. In addition, Palatas possessed 3.7

grams of marijuana at the time of his arrest, and a search of Palatas’s residence following his

arrest revealed that Palatas had a large sum of cash and 252.95 grams of heroin stored in his

residence. As a result of his criminal actions, Palatas was charged, under two separate cause

numbers, with numerous crimes. He subsequently pled guilty as charged and was sentenced

to an aggregate forty-five-year sentence. On appeal, Palatas contends that the trial court

abused its discretion in sentencing him and that his sentence is inappropriate. Finding no

abuse of discretion by the trial court and concluding that Palatas’s sentence is not

inappropriate, we affirm.

FACTS AND PROCEDURAL HISTORY

The factual basis entered during the January 28, 2014 guilty plea hearing outlines

Palatas’s relevant criminal actions. On March 23, 2013, Palatas knowingly or intentionally

delivered heroin to another person. On March 27, 2013, Palatas knowingly or intentionally

delivered heroin to another person, with said offense being committed in, on, or within 1000

feet of a school property, i.e., the Elizabeth Starr Academy. On March 28, 2013, Palatas

knowingly or intentionally delivered heroin to another person, with said offense being

committed in, on, or within 1000 feet of a youth program center, i.e., a Boys and Girls Club.

2 On April 9, 2013, Palatas (1) possessed, with the intent to deliver, more than three grams of

heroin; (2) knowingly or intentionally maintained a building, structure, or other place that

was used one or more times for unlawfully keeping a controlled substance and/or items of

drug paraphernalia; and (3) knowingly or intentionally possessed marijuana.

As a result of Palatas’s actions, Appellee-Plaintiff the State of Indiana (the “State”)

subsequently charged Palatas with several criminal charges under two separate cause

numbers. Specifically, with respect to Palatas’s actions on March 23, 27, and 28, 2013, the

State charged Palatas under Cause Number 89C01-1312-FA-37 (“Cause No. FA-37”) with

one count of Class B felony dealing in a narcotic drug and two counts of Class A felony

dealing in a narcotic drug. With respect to Palatas’s actions on April 9, 2013, the State

charged Palatas under Cause Number 89C01-1304-FA-12 (“Cause No. FA-12”) with one

count of Class A felony dealing in a narcotic drug, one count of Class D felony maintaining a

common nuisance, and one count of Class A misdemeanor possession of marijuana.

On January 28, 2014, Palatas entered into a plea agreement under which he agreed to

plead guilty as charged. In exchange for Palatas’s plea, the State agreed that his sentence

imposed for each charge should be run concurrently to his sentences for the remaining

charges, including those charged under the separate cause number. On February 27, 2014,

the trial court accepted the plea agreement and sentenced Palatas to an aggravated forty-five-

year executed sentence. Because Cause No. FA-37 and Cause No. FA-12 were joined

together below when Palatas pled guilty and was sentenced, Cause No. FA-37 and Cause No.

FA-12 have been consolidated on appeal.

3 DISCUSSION AND DECISION

Palatas challenges his sentence on appeal, claiming both that the trial court abused its

discretion in sentencing him and that his aggregate forty-five-year sentence is inappropriate

in light of the nature of his offenses and his character.1

I. Abuse of Discretion

Sentencing decisions rest within the sound discretion of the trial court and are

reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490

(Ind. 2007), modified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2007). “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. (quotation omitted).

One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Other examples include entering 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, or the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or the reasons given are improper as a matter of law. Under those circumstances, remand for resentencing may be the appropriate remedy if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that

1 Initially, we note that Palatas presents his argument on appeal in terms of a presumptive sentencing scheme. However, we observe that Indiana’s sentencing scheme was amended effective April 25, 2005, to incorporate advisory sentences rather than presumptive sentences and comply with the holdings in Blakely v. Washington, 542 U.S. 296 (2004), and Smylie v. State, 823 N.E.2d 679 (Ind. 2005). The Indiana Supreme Court has subsequently held that upon review of a defendant’s sentence, we apply the sentencing scheme in effect at the time of the defendant’s offense. Upton v. State, 904 N.E.2d 700, 702 (Ind. Ct. App. 2009); see also Robertson v. State, 871 N.E.2d 280, 286 (Ind. 2007) (“Although Robertson was sentenced after the amendments to Indiana’s sentencing scheme, his offense occurred before the amendments were effective so the pre-Blakely sentencing scheme applies to Robertson’s sentence.”). Here, Palatas committed the instant offenses in March and April of 2013, well after the 2005 amendments to Indiana’s sentencing scheme took effect. Consequently, the post-April 25, 2005 advisory sentencing scheme applies to Palatas’s convictions. 4 enjoy support in the record.

Id. at 490-91. A single aggravating factor may support an enhanced sentence. Fugate v.

State, 608 N.E.2d 1370, 1374 (Ind. 1993).

A. Whether the Trial Court Erroneously Found Certain Aggravating Factors

Palatas claims that the trial court abused its discretion in imposing an enhanced

sentence because the trial court erroneously found certain factors to be aggravating during

sentencing.

1. Criminal History

Palatas argues that the trial court erroneously found his criminal history, which

includes four prior felony convictions, twenty-two prior misdemeanor convictions, two

probation revocations, and one unsuccessful probation termination, to be an aggravating

factor at sentencing. However, because Indiana Code section 35-38-1-7.1(a)(2) provides that

a person’s criminal history is a valid aggravating factor, we conclude that the trial court did

not err in considering Palatas’s criminal history to be an aggravating factor at sentencing.

2. Placement on Probation at the Time He Committed Instant Offenses

Palatas also argues that the trial court erred in finding the fact that he was on probation

at the time he committed the instant offenses to be an aggravating factor at sentencing. The

fact that a defendant committed a crime while on probation is a factor distinct from the

defendant’s criminal history and is a proper aggravating factor at sentencing. See Barber v.

State, 863 N.E.2d 1199, 1208 (Ind. Ct. App. 2007) (providing that the fact that the defendant

was on probation when he committed the underlying offense because the defendant was still

5 serving a court-imposed sentence when he committed the criminal acts in question), trans.

denied. In making this argument, Palatas claims that the record does not support the trial

court’s determination that he was on probation when he committed the instant offenses. We

disagree.

Palatas admitted that the pre-sentence investigation report (“PSI”), which was

generated prior to sentencing, was accurate. The PSI indicates that Palatas was sentenced to

five years of probation in Montgomery County, Ohio on September 23, 2009. Palatas

committed the underlying offenses in March and April of 2013, less than five years after

Palatas was sentenced to five years of probation in Ohio. Further, Palatas points to no

evidence and nothing in the record indicates that Palatas was released early from the five-

year probationary term in Ohio. Accordingly, we conclude that the trial court did not err in

finding the fact that Palatas was on probation when he committed the instant offenses to be

an aggravating factor because the record sufficiently establishes that Palatas was on

probation in a case stemming from Ohio at the time he committed the underlying offenses.

3. Weight of Heroin Found in Palatas’s Home

In addition, Palatas argues that the trial court erred in finding the fact that 252.95

grams of heroin were recovered from his residence to be an aggravating factor at sentencing.

In making this argument, Palatas simply states that “[t]he quantity of drugs involved is an

inappropriate aggravator.” Appellant’s Br. p. 14. Palatas does not provide any citation to

relevant authority or any argument in support of this statement. However, even if we were to

assume that the trial court did err in considering this factor, we must still conclude that the

6 trial court acted within its discretion in imposing an enhanced sentence because the existence

of a single aggravator may support an enhanced sentence. Fugate, 608 N.E.2d at 1374. The

trial court properly considered two other aggravating factors, i.e., Palatas’s criminal history

and the fact that he was on probation at the time he committed the instant offenses, and these

aggravating factors are sufficient to support Palatas’s enhanced sentence.

B. Whether the Trial Court Failed to Apply Proper Weight to Certain Aggravating and Mitigating Factors

Palatas claims that the trial court abused its discretion in imposing enhanced

sentences. In making this claim, Palatas argues that the trial court applied improper

aggravating weight to his criminal history. He also argues that the trial court failed to give

proper mitigating weight to his guilty plea, his life history, and his remorse.

The Indiana Supreme Court has long held that a trial court is not required to weigh or

credit aggravating and mitigating factors the way an appellant suggests it should be weighed

or credited. Fugate, 608 N.E.2d at 1374. Further, because the trial court no longer has any

obligation to “weigh” aggravating and mitigating factors against each other when imposing a

sentence, unlike the pre-Blakely statutory regime, a trial court cannot now be said to have

abused its discretion in failing to “properly weigh” such factors. Anglemyer, 868 N.E.2d at

491. As such, the trial court did not abuse its discretion in this regard.

II. Appropriateness of Sentence

Indiana Appellate Rule 7(B) provides that “The Court may revise a sentence

authorized by statute if, after due consideration of the trial court’s decision, the Court finds

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

offender.” In analyzing such claims, we “‘concentrate less on comparing the facts of [the

case at issue] to others, whether real or hypothetical, and more on focusing on the nature,

extent, and depravity of the offense for which the defendant is being sentenced, and what it

reveals about the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.

2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied).

The defendant bears the burden of persuading us that his sentence is inappropriate. Sanchez

v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).

In the instant matter, Palatas pled guilty to three counts of Class A felony dealing in a

narcotic drug, one count of Class B felony dealing in a narcotic drug, one count of Class D

felony maintaining a common nuisance, and one count of Class A misdemeanor possession

of marijuana. The record demonstrates that Palatas sold heroin on numerous occasions. On

one occasion, Palatas sold an amount of heroin weighing more than three grams. On two

other separate occasions, Palatas sold drugs within 1000 feet of both a school and a youth

program center. Law enforcement discovered 252.95 grams of heroin in Palatas’s residence

during a search of the residence following Palatas’s arrest. Law enforcement also recovered

over $10,000.00 in cash from Palatas’s residence. These facts support an inference that

Palatas was not a “small time” drug dealer as he claimed, but rather was heavily involved in

drug dealing.

With respect to Palatas’s character, the record demonstrates that Palatas has shown an

ongoing disregard for the laws of this State. Palatas’s criminal history includes four prior

8 felony convictions, twenty-two prior misdemeanor convictions, two probation revocations,

and one unsuccessful probation termination because Palatas absconded. The prior

convictions include convictions relating to drug and alcohol use and theft. His criminal

history includes convictions arising from both Indiana and Ohio. The record indicates that

Palatas has failed to reform his criminal behavior despite routine leniency from the trial

court. In addition, Palatas’s criminal actions also appear to be escalating in seriousness.

Palatas has failed to prove that his aggregate forty-five-year sentence is inappropriate in light

of the nature of Palatas’s offenses and his character.

CONCLUSION

The trial court did not abuse its discretion in sentencing Palatas. In addition, Palatas

has failed to prove that his aggregate forty-five-year sentence is inappropriate in light of his

actions and his character.

The judgment of the trial court is affirmed.

BARNES, J., and BROWN, J., concur.