Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of Sep 04 2014, 9:36 am establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: JEREMY K. NIX GREGORY F. ZOELLER Matheny, Hahn, Denman, & Nix, LLP Attorney General of Indiana Huntington, Indiana LARRY D. ALLEN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
KEVIN I. COLON, SR., ) ) Appellant-Petitioner, ) ) vs. ) No. 90A04-1403-CR-142 ) STATE OF INDIANA, ) ) Appellee-Respondent. )
APPEAL FROM THE WELLS CIRCUIT COURT The Honorable Kenton W. Kiracofe Cause No. 90C01-1310-FB-00015
September 4, 2014 MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge Kevin Colon (“Colon”) pleaded guilty in Wells Circuit Court to Class B felony
dealing in methamphetamine. He was ordered to serve a twelve-year executed sentence
in the Department of Correction. Colon appeals and argues that the trial court abused its
discretion in sentencing him and that his sentence is inappropriate in light of the nature of
the offense and the character of the offender.
We affirm.
Facts and Procedural History
On August 12, 2013, Colon provided methamphetamine to a confidential
informant who was working with the Bluffton Police Department. In exchange for the
methamphetamine, the confidential informant gave Colon a box containing ninety-six
pseudoephedrine1 pills. On August 15, 2013, Colon again exchanged methamphetamine
for pseudoephedrine with the same confidential informant. Both transactions were audio
recorded by the informant.
On October 16, 2013, the State charged Colon with two counts of Class B felony
dealing in methamphetamine. Three months later, on January 14, 2014, Colon pleaded
guilty to one count of Class B felony dealing in methamphetamine. In exchange for
Colon’s guilty plea, the State agreed to dismiss the second Class B felony count and that
Colon’s sentence would be capped at fifteen years.
1 Pseudoephedrine is an ingredient commonly used to manufacture methamphetamine. 2 Colon has four prior misdemeanor convictions for domestic battery, check deception, driving without a 2 The trial court held a sentencing hearing on March 17, 2014. At the hearing, the
trial court found as aggravating Colon’s criminal history2 and the fact that he committed
the offenses while released on bond awaiting trial for a charge of driving with a
suspended license. The trial court found as mitigating Colon’s guilty plea, but assigned it
little weight in light of the weight of the evidence against him. The trial court then
sentenced Colon to twelve years in the Department of Correction and recommended that
Colon participate in the Clean Lifestyle Is Freedom Forever (CLIFF) program for
methamphetamine abuse. Colon now appeals.
I. Abuse of Discretion
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 (Ind. 2007).
So long as the sentence is within the statutory range, it is subject to review only for an
abuse of discretion. Id. An abuse of discretion will be found where 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. We review the
presence or absence of reasons justifying a sentence for an abuse of discretion, but we
cannot review the relative weight given to these reasons. Id. at 491.
Colon argues that the trial court abused its discretion when it failed to find as
mitigating that (1) he was likely to respond affirmatively to probation and (2) he was
unlikely to reoffend due to his character and attitude. When an allegation is made that
2 Colon has four prior misdemeanor convictions for domestic battery, check deception, driving without a driver’s license, and driving while suspended. 3 the trial court failed to find a mitigating factor, the defendant is required to establish that
the mitigating evidence is both significant and clearly supported by the record. Id. at 493.
However, a trial court is not obligated to accept a defendant’s claim as to what constitutes
a mitigating circumstance. Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000).
Colon contends that the fact that he has a “minimal criminal history which
consisted entirely of misdemeanor offenses for domestic battery, check deception, and
driving while suspended”; the fact that he has only violated probation once before, by
failing to pay probation fees; and his statement that “his arrest saved his life and he
welcomed the opportunity for [drug abuse] treatment and probation” shows that he is
likely to respond affirmatively to probation and that he is unlikely to reoffend.
Appellant’s Br. at 5; Tr. p. 10.
However, the record indicates that the trial court did acknowledge and consider
Colon’s claims of mitigating circumstances when it imposed his sentence. The trial court
was in the best position to judge Colon’s credibility and rejected Colon’s self-serving
statements that he was unlikely to reoffend and that he would respond well to probation.
The trial court observed that Colon attempted to minimize his culpability at his
sentencing hearing when he stated that he did not believe that he had been dealing drugs
and that he was never “a menace to society.” Tr. pp. 12-13. Colon also initially denied
having any prior convictions, later admitting to his criminal history on cross-examination.
In light of Colon’s criminal history and his minimization of his offense at his sentencing
hearing, the trial court did not abuse its discretion by considering, then failing to identify
as mitigators that Colon is unlikely to reoffend and that he would respond affirmatively to
4 probation. See Comer v. State, 839 N.E.2d 721 (Ind. Ct. App. 2005) (holding that the
trial court did not abuse its discretion at sentencing by allegedly failing to consider
mitigating factors that defendant was unlikely to reoffend and that he would likely
respond to probation or short-term imprisonment where trial court acknowledged and
considered that defendant had no prior criminal record and had expressed remorse for his
crimes).
II. Inappropriate Sentence
Colon also appears to argue that his sentence is inappropriate in light of the nature
of the offense and the character of the offender. Under Indiana Appellate Rule 7(B), we
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.” Although we may review and revise a
sentence, “[t]he principal role of appellate review should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged with
improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in
each case.” Cardwell v.
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of Sep 04 2014, 9:36 am establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: JEREMY K. NIX GREGORY F. ZOELLER Matheny, Hahn, Denman, & Nix, LLP Attorney General of Indiana Huntington, Indiana LARRY D. ALLEN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
KEVIN I. COLON, SR., ) ) Appellant-Petitioner, ) ) vs. ) No. 90A04-1403-CR-142 ) STATE OF INDIANA, ) ) Appellee-Respondent. )
APPEAL FROM THE WELLS CIRCUIT COURT The Honorable Kenton W. Kiracofe Cause No. 90C01-1310-FB-00015
September 4, 2014 MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge Kevin Colon (“Colon”) pleaded guilty in Wells Circuit Court to Class B felony
dealing in methamphetamine. He was ordered to serve a twelve-year executed sentence
in the Department of Correction. Colon appeals and argues that the trial court abused its
discretion in sentencing him and that his sentence is inappropriate in light of the nature of
the offense and the character of the offender.
We affirm.
Facts and Procedural History
On August 12, 2013, Colon provided methamphetamine to a confidential
informant who was working with the Bluffton Police Department. In exchange for the
methamphetamine, the confidential informant gave Colon a box containing ninety-six
pseudoephedrine1 pills. On August 15, 2013, Colon again exchanged methamphetamine
for pseudoephedrine with the same confidential informant. Both transactions were audio
recorded by the informant.
On October 16, 2013, the State charged Colon with two counts of Class B felony
dealing in methamphetamine. Three months later, on January 14, 2014, Colon pleaded
guilty to one count of Class B felony dealing in methamphetamine. In exchange for
Colon’s guilty plea, the State agreed to dismiss the second Class B felony count and that
Colon’s sentence would be capped at fifteen years.
1 Pseudoephedrine is an ingredient commonly used to manufacture methamphetamine. 2 Colon has four prior misdemeanor convictions for domestic battery, check deception, driving without a 2 The trial court held a sentencing hearing on March 17, 2014. At the hearing, the
trial court found as aggravating Colon’s criminal history2 and the fact that he committed
the offenses while released on bond awaiting trial for a charge of driving with a
suspended license. The trial court found as mitigating Colon’s guilty plea, but assigned it
little weight in light of the weight of the evidence against him. The trial court then
sentenced Colon to twelve years in the Department of Correction and recommended that
Colon participate in the Clean Lifestyle Is Freedom Forever (CLIFF) program for
methamphetamine abuse. Colon now appeals.
I. Abuse of Discretion
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 (Ind. 2007).
So long as the sentence is within the statutory range, it is subject to review only for an
abuse of discretion. Id. An abuse of discretion will be found where 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. We review the
presence or absence of reasons justifying a sentence for an abuse of discretion, but we
cannot review the relative weight given to these reasons. Id. at 491.
Colon argues that the trial court abused its discretion when it failed to find as
mitigating that (1) he was likely to respond affirmatively to probation and (2) he was
unlikely to reoffend due to his character and attitude. When an allegation is made that
2 Colon has four prior misdemeanor convictions for domestic battery, check deception, driving without a driver’s license, and driving while suspended. 3 the trial court failed to find a mitigating factor, the defendant is required to establish that
the mitigating evidence is both significant and clearly supported by the record. Id. at 493.
However, a trial court is not obligated to accept a defendant’s claim as to what constitutes
a mitigating circumstance. Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000).
Colon contends that the fact that he has a “minimal criminal history which
consisted entirely of misdemeanor offenses for domestic battery, check deception, and
driving while suspended”; the fact that he has only violated probation once before, by
failing to pay probation fees; and his statement that “his arrest saved his life and he
welcomed the opportunity for [drug abuse] treatment and probation” shows that he is
likely to respond affirmatively to probation and that he is unlikely to reoffend.
Appellant’s Br. at 5; Tr. p. 10.
However, the record indicates that the trial court did acknowledge and consider
Colon’s claims of mitigating circumstances when it imposed his sentence. The trial court
was in the best position to judge Colon’s credibility and rejected Colon’s self-serving
statements that he was unlikely to reoffend and that he would respond well to probation.
The trial court observed that Colon attempted to minimize his culpability at his
sentencing hearing when he stated that he did not believe that he had been dealing drugs
and that he was never “a menace to society.” Tr. pp. 12-13. Colon also initially denied
having any prior convictions, later admitting to his criminal history on cross-examination.
In light of Colon’s criminal history and his minimization of his offense at his sentencing
hearing, the trial court did not abuse its discretion by considering, then failing to identify
as mitigators that Colon is unlikely to reoffend and that he would respond affirmatively to
4 probation. See Comer v. State, 839 N.E.2d 721 (Ind. Ct. App. 2005) (holding that the
trial court did not abuse its discretion at sentencing by allegedly failing to consider
mitigating factors that defendant was unlikely to reoffend and that he would likely
respond to probation or short-term imprisonment where trial court acknowledged and
considered that defendant had no prior criminal record and had expressed remorse for his
crimes).
II. Inappropriate Sentence
Colon also appears to argue that his sentence is inappropriate in light of the nature
of the offense and the character of the offender. Under Indiana Appellate Rule 7(B), we
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.” Although we may review and revise a
sentence, “[t]he principal role of appellate review should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged with
improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in
each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We must give
“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.” Trainor v. State, 950
N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied (quoting Stewart v. State, 866
N.E.2d 858, 866 (Ind. Ct. App. 2007)) (internal quotation marks omitted).
5 When we review the appropriateness of a sentence, we consider “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, 895 N.E.2d at 1224. The defendant
has the “burden to persuade us that the sentence imposed by the trial court is
inappropriate.” Shell v. State, 927 N.E.2d 413, 422 (Ind.Ct.App.2010).
The sentencing range for a Class B felony is between six and twenty years, with an
advisory sentence of ten years. Ind. Code § 35-50-2-5. Colon’s plea agreement capped
his sentence at fifteen years. He received a sentence of twelve years, two years more than
the advisory sentence for a Class B felony and three years less than the capped sentence
pursuant to his plea agreement.
We first note that Colon neither provides a statement of the applicable standard of
review nor points to any legal authority to support his arguments. Therefore, pursuant to
Indiana Appellate Rule 46(A)(8), Colon has waived this issue for review. See Jackson v.
State, 758 N.E.2d 1030, 1037 (Ind. Ct. App. 2001) (noting that failure to comply with
Indiana Code Appellate Rule 46(A)(8)(b), which requires that an appellant’s brief include
a statement of the applicable standard of review for each issue, results in waiver of that
issue for appellate review); see also Hollowell v. State, 707 N.E.2d 1014, 1025 (Ind. Ct.
App. 1999) (providing that failure to support each contention with citation to relevant
legal authority results in waiver of that issue on appeal).
Waiver notwithstanding, Colon’s claim still fails. Colon sold methamphetamine
in two separate controlled buys, and he was released on bond awaiting trial for a previous
charge at the time of the offenses. He has four previous convictions. At his sentencing
6 hearing, he made statements minimizing his responsibility for his actions. Therefore,
waiver notwithstanding, Colon has not met his burden of showing that his sentence is
inappropriate in light of the nature of the offense and the character of the offender.
Conclusion
For all of these reasons, we conclude that the trial court did not abuse its discretion
in sentencing Colon and that Colon’s twelve-year executed sentence is not inappropriate
in light of the nature of the offense and the character of the offender.
Affirmed.
RILEY, J., and CRONE, J., concur.