Joseph L. Leszcynski v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 20, 2018
• Docket: 03A01-1710-CR-2350
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Mar 20 2018, 10:35 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 and Tax Court collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jane Ann Noblitt Curtis T. Hill, Jr. Columbus, Indiana Attorney General of Indiana

Lee M. Stoy, Jr. Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Joseph L. Leszcynski, March 20, 2018

Appellant-Defendant, Court of Appeals Case No. 03A01-1710-CR-2350 v. Appeal from the Bartholomew Superior Court. The Honorable James D. Worton, State of Indiana, Judge. Appellee-Plaintiff. Trial Court Cause No. 03D01-1703-F5-1848

Shepard, Senior Judge

[1] Joseph Leszcynski twice sold heroin to a confidential informant, pleaded guilty

to dealing in a narcotic drug as a Level 5 felony, and was sentenced to five years

executed in the Indiana Department of Correction. The trial court

Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2350 | March 20, 2018 Page 1 of 5 recommended he be placed in a therapeutic community while serving his

sentence. He appeals, arguing his sentence is inappropriate. We affirm.

Facts and Procedural History [2] On May 17 and 19, 2016, a confidential informant (CI) contacted a Columbus

Police Department detective and informed him that the CI could purchase

heroin from Leszcynski. Controlled buys were arranged. The CI, accompanied

by another detective, drove to the buy locations. On each occasion, when they

arrived, Leszcynski approached the window of the vehicle; the CI gave

Leszcynski the buy money; and Leszcynski gave the CI less than one gram of

heroin.

1 [3] The State charged two counts of dealing in a narcotic drug as Level 5 felonies.

Leszcynski pleaded guilty and, as a part of the plea agreement, the State agreed

to dismiss the second count and not file charges in an unrelated case. The trial

court accepted the plea agreement and sentenced Leszcynski to five years

executed with a recommendation that he be placed in a therapeutic community

while serving the sentence. The court indicated it would consider a sentence

modification upon Leszcynski’s successful completion of the therapeutic

community.

1 Ind. Code § 35-48-4-1(a)(1) (2014).

Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2350 | March 20, 2018 Page 2 of 5 Issue [4] The sole issue Leszcynski raises on appeal is whether his sentence is

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

Discussion and Decision [5] Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized

by statute if, after due consideration of the trial court’s decision, we find 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 persuasion in this

court. Childress v. State, 848 N.E.2d 1073 (Ind. 2006). Whether we regard a

sentence as inappropriate turns on 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).

“[S]entencing is principally a discretionary function in which the trial court’s

judgment should receive considerable deference.” Id. at 1222.

[6] When determining whether a sentence is inappropriate, we acknowledge that

the advisory sentence is the starting point the General Assembly has selected as

an appropriate sentence for the crime committed. Childress, 848 N.E.2d 1073.

Here, Leszcynski was convicted of a Level 5 felony, for which the sentencing

range is between one and six years, with an advisory sentence of three

years. See Ind. Code § 35-50-2-6 (2014). Leszcynski’s sentence is thus above

the advisory but below the maximum allowed under the statute.

Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2350 | March 20, 2018 Page 3 of 5 [7] As to the nature of Leszcynski’s offense, he admitted to selling heroin on two

separate occasions to a confidential informant. The trial court was justified in

observing that selling heroin represents a danger to others.

[8] Regarding character, Leszcynski has a history of delinquency and criminal

offenses. He has been convicted of six misdemeanors and three felonies; his

felony convictions are drug-related; and his probation has been “closed

unsuccessfully” four times and fully or partially revoked four times. Moreover,

he was on probation at the time he committed the instant offense. Leszcynski

postulates that he suffers from a drug addiction and has not had the opportunity

to participate in a comprehensive drug treatment program outside DOC.

However, on several occasions, he was ordered by the trial court to undergo 2 drug treatment, but failed to complete the programs.

[9] Leszcynski intersperses his inappropriate sentence argument with assertions

that reference an abuse of discretion standard, specifically, that the trial court

should have found as mitigating factors that his offense did not cause harm to

persons or property, that he suffers from drug addiction, and that, at sentencing,

he asked the court for help with his drug addiction. However, our Supreme

Court has made clear that inappropriate sentence and abuse of discretion claims

2 We note the trial court was not unsympathetic to Leszcynski’s substance abuse problems as it recommended placement in a therapeutic community in the DOC where he would be afforded intensive substance abuse treatment. See INDIANA DEPARTMENT OF CORRECTION, https://www.in.gov/idoc/2798.htm (last visited March 8, 2018).

Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2350 | March 20, 2018 Page 4 of 5 are to be analyzed separately. See Anglemyer v. State, 868 N.E.2d 482 (Ind.

2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). Leszcynski does not fully

develop his arguments concerning the trial court’s assessment of mitigating

factors. As such, any claims of error of this nature are not preserved. See Foutch

v. State, 53 N.E.3d 577, 580 n.1 (Ind. Ct. App. 2016) (noting that party must

make cogent argument regarding abuse of discretion in sentencing separate

from inappropriateness analysis to preserve claim for appellate review).

Conclusion [10] Leszcynski’s five-year sentence is not inappropriate in light of his offense and

his character.

[11] Affirmed.

Bailey, J., and Barnes, J., concur.

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