John T. Pitcher v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 12, 2018
• Docket: 18A-CR-791
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 12 2018, 6:12 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer A. Joas Curtis T. Hill, Jr. Madison, Indiana Attorney General of Indiana Lee M. Stoy, Jr. Angela N. Sanchez Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

John T. Pitcher, September 12, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-791 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Sally A. Appellee-Plaintiff. McLaughlin, Judge Trial Court Cause No. 15D02-1611-F4-48

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-791 | September 12, 2018 Page 1 of 8 Case Summary and Issues [1] John Pitcher pleaded guilty to one count of carrying a handgun without a

license by a convicted felon, a Level 5 felony, and the State dismissed seven

other charges. Sentencing was left to the discretion of the trial court, which

sentenced Pitcher to six years in the Indiana Department of Correction. Pitcher

appeals his sentence, raising one issue for our review: whether his sentence is

inappropriate in light of the nature of the offense and his character. Concluding

that his sentence is not inappropriate in light of the nature of the offense and his

character, we affirm.

Facts and Procedural History [2] On November 11, 2016, Captain Brian Miller of the Lawrenceburg Police

Department was dispatched to a local hotel in which a housekeeper reported

finding drug paraphernalia and a gun in an unoccupied room. Captain Miller

observed syringes, a burnt pipe with residue, empty plastic bags, electronic

scales, cotton swabs, a cigarette containing a green leafy substance he believed

to be marijuana, a rock-like substance he believed to be methamphetamine, and

a revolver. He also found credit and debit cards belonging to Pitcher’s co-

defendant and Pitcher’s casino card. Captain Miller confirmed with the hotel

that Pitcher and his co-defendant were the last occupants of the room and

observed video surveillance of the two entering the room. The State charged

Pitcher with the following: Count I, possession of methamphetamine, a Level 6

felony; Count II, possession of marijuana, a Class A misdemeanor; Count III,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-791 | September 12, 2018 Page 2 of 8 possession of paraphernalia with a prior, a Class A misdemeanor; Count IV,

possession of paraphernalia, a Class C misdemeanor; Count V, possession of a

syringe, a Level 6 felony; Count VI, maintaining a common nuisance, a Level 6

felony; and Count VII, possession of a firearm by a serious violent felon, a

Level 4 felony. In February of 2018, the State amended the charges by adding

Count VIII, carrying a handgun without a license by a convicted felon, a Level

5 felony.

[3] As part of a plea agreement, Pitcher agreed to plead guilty to Count VIII, and

the State agreed to dismiss the remaining counts. Sentencing was left to the

trial court’s discretion. The trial court found no mitigating circumstances. As

for aggravating circumstances, the trial court noted Pitcher’s criminal history

consists of several prior felony and misdemeanor convictions, including firearm

and drug offenses. The trial court classified Pitcher as a “multi-state offender”

as he has convictions in Indiana, Texas, Kentucky, and Georgia. Transcript,

Volume I at 22. The trial court also noted Pitcher had an active felony warrant

for burglary of a habitat in Texas at the time of sentencing. Given Pitcher’s

criminal history, his failure to respond to lawful detention, the trial court’s

concern for community safety, and the absence of mitigating circumstances, the

trial court sentenced Pitcher to six years in the Department of Correction.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-791 | September 12, 2018 Page 3 of 8 Discussion and Decision I. Standard of Review [4] Pitcher argues that his sentence is inappropriate in light of the nature of the

offense and his character because his offense and character “do not warrant the

maximum sentence.” Appellant’s Brief at 8. Indiana Rule of Appellate

Procedure 7(B) provides that this 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.” The defendant bears the burden of persuading this

court that his or her sentence is inappropriate under the standard. Childress v.

State, 848 N.E.2d 1073, 1080 (Ind. 2006).

II. Inappropriate Sentence [5] Sentencing is considered a discretionary function of the trial court and is

entitled to considerable deference. Cardwell v. State, 895 N.E.2d 1219, 1222

(Ind. 2008). Upon review, our principal role is to “attempt to leaven the

outliers . . . but not to achieve a perceived ‘correct’ result in each case.” Id. at

1225. Whether a defendant’s sentence is inappropriate is grounded in “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.” Id.

at 1224. We evaluate the trial court’s recognition or non-recognition of

mitigators and aggravators to guide our determination. Stephenson v. State, 53

N.E.3d 557, 561 (Ind. Ct. App. 2016).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-791 | September 12, 2018 Page 4 of 8 [6] Pitcher pleaded guilty to a Level 5 felony, the sentence for which is 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). The advisory sentence “is the

starting point the Legislature has selected as an appropriate sentence for the

crime committed.” Childress, 848 N.E.2d at 1081. Pitcher received the

maximum sentence allowed by statute.

[7] To determine the nature of the offense, we examine the details and

circumstances surrounding the offense. Washington v. State, 940 N.E.2d 1220,

1222 (Ind. Ct. App. 2011), trans. denied. Pitcher argues there is nothing so

egregious about his offense that distinguishes it from the typical offense

considered by the legislature in setting the advisory sentence. He contends that

maximum sentences should be reserved for the worst offenses and although he

acknowledges he possessed a firearm in the hotel, he contends there was no

evidence that it was loaded, that he took it into the casino, pulled it out and

waved it, or that he intended to use it. He argues that there are no facts to

suggest that his possession of the firearm is more egregious than any other

possession of a firearm by a felon case and “[a]t most, the nature of [his] offense

warrants an advisory sentence[.]” Appellant’s Br. at 11. However, as noted by

the State, Captain Miller discovered the firearm in a hotel room with evidence

suggesting that Pitcher was dealing methamphetamine. The trial court found

Pitcher’s possession of drug paraphernalia and a firearm “an additional concern

for community safety and an aggravating circumstance” to merit a deviation

Court of Appeals of Indiana | Memorandum Decision 18A-CR-791 | September 12, 2018 Page 5 of 8 from the advisory sentence. Appendix of Appellant, Volume Two at 48. The

nature of the offense does not render Pitcher’s sentence inappropriate.

[8] A defendant’s life and conduct are illustrative of his or her character.

Washington, 940 N.E.2d at 1222. As to Pitcher’s character, he argues that as a

high school and college graduate who had been employed for sixteen years, he

is a “contributing member of society.” Appellant’s Br. at 12. Although the

attributes Pitcher cites are favorable, one factor in determining a defendant’s

character is his or her criminal history, the significance of which “varies based

on the gravity, nature, and number of prior offenses in relation to the current

offense.” Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013). “Even a

minor criminal record reflects poorly on a defendant’s character.” Reis v. State,

88 N.E.3d 1099, 1105 (Ind. Ct. App. 2017).

[9] Pitcher has felony and misdemeanor convictions in various states for possession

of methamphetamine with the intent to distribute, possession of a firearm

during the commission of a felony, theft, possession of a handgun without a

license, operating a motor vehicle with a Schedule I or II controlled substance

in his body, possession of marijuana, and battery resulting in bodily injury. The

number and nature of Pitcher’s prior convictions are significant in relation to

his current offense. In addition, he also had an active felony warrant for

burglary of a habitat in Texas, a pending charge for making terroristic threats in

Texas, and a pending probation violation in Georgia at the time he was

sentenced for the instant offense. The trial court’s sentencing order

acknowledged Pitcher’s criminal history and found that the community’s safety

Court of Appeals of Indiana | Memorandum Decision 18A-CR-791 | September 12, 2018 Page 6 of 8 would be best served by his incarceration because despite prior lawful

detention, he continues to commit serious crimes.

[10] Pitcher also argues that his guilty plea reflects well on his character because it

alleviated the need for a trial, saving the court and the State time and money

and demonstrating he accepted responsibility for his actions. However, the

State refutes this contention by arguing that it rendered a “significant benefit” to

Pitcher when it dismissed the Level 4 felony possession of a firearm charge in

exchange for Pitcher’s guilty plea to a lower charge, a Level 5 felony. Tr., Vol.

I at 17. The State argues that had Pitcher been found guilty of all charges at a

trial, he would have faced a much higher maximum possible sentence and

possibly been ordered to serve his sentences consecutively.1 Although Pitcher’s

guilty plea did alleviate the need for a trial, his decision to plead guilty was a

practical one when considering the evidence, the numerous charges against

him, and the sentencing exposure he faced. Because Pitcher received a

“substantial benefit” in pleading guilty, we agree that his plea does not make his

maximum sentence inappropriate. Anglemyer v. State, 875 N.E.2d 218, 221 (Ind.

2007) (holding that the defendant’s guilty plea, which reduced a potential

1 The State argued that had Pitcher been found guilty of all charges, he could have faced a maximum possible sentence of fourteen and one half years and points out that “the trial court could have ordered the sentences for all other charges that Pitcher potentially could have been convicted of to be served consecutively to this conviction[,]” as the Level 4 felony constituted a crime of violence. Brief of Appellee at 11 (citing Ind. Code § 35-50-1-2).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-791 | September 12, 2018 Page 7 of 8 maximum sentence of twenty-eight years by twelve years, “alone was a

substantial benefit”).

Conclusion [11] For the foregoing reasons, we conclude that Pitcher’s sentence is not

inappropriate in light of the nature of the offense and character of the offender.

[12] Affirmed.

Baker, J., and May, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-791 | September 12, 2018 Page 8 of 8