Kenneth Jaquin Washington v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 18, 2015
• Docket: 45A03-1501-CR-11
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Aug 18 2015, 9:17 am Memorandum Decision shall not be regarded as precedent or cited before 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 Marce Gonzalez, Jr. Gregory F. Zoeller Dyer, Indiana Attorney General of Indiana

Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kenneth Jaquin Washington, August 18, 2015

Appellant-Defendant, Court of Appeals Case No. 45A03-1501-CR-11 v. Appeal from the Lake County Superior Court; The Honorable Salvador Vasquez, State of Indiana, Judge; Appellee-Plaintiff. 45G01-1401-FA-4

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 45A03-1501-CR-11 | August 18, 2015 Page 1 of 4 [1] Kenneth Jaquin Washington appeals his five-year sentence for Class C felony

possession of cocaine. 1 As his sentence is not inappropriate, we affirm.

Facts and Procedural History [2] On April 3, 2013, Washington sold cocaine to a confidential informant.

Washington was charged with three counts of Class B felony dealing in

cocaine, 2 two counts of Class D felony possession of cocaine, 3 and one count of

Class C felony possession of cocaine. Washington agreed to plead guilty to

Class C felony possession of cocaine with a sentencing cap of six years. The

remaining charges were dismissed.

[3] At sentencing, the trial court found as mitigators that Washington took

responsibility and agreed to plead guilty. As aggravators, the trial court

considered Washington’s criminal history, which included two prior felony

convictions involving cocaine, and it noted prior judicial leniency had no

deterrent effect on Washington’s behavior. The trial court sentenced

Washington to five years in the Department of Correction.

Discussion and Decision [4] When a defendant enters a plea agreement but the trial court retains sentencing

discretion, even within an agreed-upon cap, a defendant “is entitled to contest

1 Ind. Code § 35-48-4-6(a)(b)(1)(A) (2006). 2 Ind. Code § 35-48-4-1 (2006). 3 Ind. Code § 35-48-4-6(a) (2006).

Court of Appeals of Indiana | Memorandum Decision 45A03-1501-CR-11 | August 18, 2015 Page 2 of 4 the merits of a trial court’s sentencing discretion.” Tumulty v. State, 666 N.E.2d

394, 396 (Ind. 1996). We may revise a sentence if it is inappropriate in light of

the nature of the offense and the character of the offender. Williams v. State, 891

N.E.2d 621, 633 (Ind. Ct. App. 2008) (citing Ind. Appellate Rule 7(B)). We

consider not only the aggravators and mitigators found by the trial court, but

also any other factors appearing in the record. Roney v. State, 872 N.E.2d 192,

206 (Ind. Ct. App. 2007), trans. denied. The appellant bears the burden of

demonstrating his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073,

1080 (Ind. 2006).

[5] When considering the nature of the offense, the advisory sentence is the starting

point to determine the appropriateness of a sentence. Anglemyer v. State, 868

N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The

sentencing range for a Class C felony is “a fixed term of between two (2) and

eight (8) years, with the advisory sentence being four (4) years.” Ind. Code §

35-50-2-6 (2005). Washington requests we reduce his five-year sentence to the

advisory four years.

[6] Regarding the nature of his offense, Washington was contacted by a

confidential informant wanting to purchase cocaine. Washington employed the

services of third parties to be “his mules.” (Tr. at 5.) He was trying to “ga[me]

the system.” (Id.) In this way, he sought to protect himself from prosecution.

[7] When considering the character of the offender, one relevant fact is the

defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.

Court of Appeals of Indiana | Memorandum Decision 45A03-1501-CR-11 | August 18, 2015 Page 3 of 4 App. 2007). The significance of a criminal history in assessing a defendant’s

character varies based on the gravity, nature, and number of prior offenses in

relation to the current offense. Id. Washington’s criminal history includes

felony convictions of dealing and possession of cocaine, along with various

misdemeanors. Washington was sentenced to two years in a work release

program for one felony and seven years in DOC for the other. Neither deterred

him from reoffending.

[8] Washington’s assertion that his cocaine addiction is a mitigator is not supported

by the record. Washington states he uses cocaine only “in his cigarettes and

smoke[s] it once a month.” (App. at 70.) 4 Washington has not sought

treatment despite two previous convictions involving cocaine. See Caraway v.

State, 959 N.E.2d 847, 952 (Ind. Ct. App. 2011) (no error when trial court found

as an aggravator that Caraway recognized addiction but did not seek

treatment), trans. denied.

[9] Washington has not demonstrated his five-year sentence is inappropriate in

light of his character and his offense. Accordingly, we affirm.

Crone, J., and Bradford, J., concur.

4 Per Indiana Administrative Rule 9(G)(2)(b), the presentence investigation (PSI) report must be excluded from public access. We have included confidential information in this decision only to the extent it “is essential to the resolution” of Washington’s claim on appeal. Ind. Admin. Rule 9(G)(7)(a)(ii)(c).

Court of Appeals of Indiana | Memorandum Decision 45A03-1501-CR-11 | August 18, 2015 Page 4 of 4