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 Apr 09 2014, 6:16 am establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LEANNA WEISSMANN GREGORY F. ZOELLER Lawrenceburg, Indiana Attorney General of Indiana
RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
MATTHEW McKINNEY, ) ) Appellant-Defendant, ) ) vs. ) No. 15A01-1309-CR-399 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE DEARBORN SUPERIOR COURT The Honorable Sally A. Blankenship, Judge Cause No. 15D02-1302-FA-8
April 9, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge Appellant-defendant Matthew McKinney appeals the thirty-year aggregate
sentence imposed by the trial court after he pleaded guilty to Count I, Dealing in a
Schedule II Controlled Substance,1 a class A felony, Count II, Dealing in a Schedule II
Controlled Substance,2 a class B felony, and Count III, Dealing in Marijuana,3 a class C
felony. More particularly, McKinney argues that the cumulative sentence was
inappropriate in light of the nature of his offense and his character. Concluding that
McKinney’s sentence was not inappropriate, we affirm the judgment of the trial court.
FACTS
In April 2012, the Dearborn County Special Crimes Unit received tips that
McKinney was dealing drugs from his apartment and at a park in Lawrenceburg.
Consequently, an undercover officer made contact with McKinney and purchased
hydrocodone and marijuana from him on several occasions, including January 3, 2013,
January 4, 2013, January 8, 2013, January 11, 2013, January 17, 2013, January 24, 2013,
and February 6, 2013. On February 13, 2013, the State charged McKinney with Count I,
dealing in a schedule II controlled substance within 1,000 feet of a family housing
complex as a class A felony; Count II dealing in a schedule II controlled substance as a
class B felony; and Count III dealing in marijuana within 1,000 feet of a family housing
complex as a class C felony.
1 Ind. Code § 35-48-4-2(a)(1)(C), (b)(2)(B)(iii) 2 I.C. § 35-48-4-2(a)(1)(C) 3 I.C. § 35-48-4-10(b)(2)(B)(ii) 2 On July 10, 2013, McKinney pleaded guilty to all counts. The trial court held a
sentencing hearing on August 20, 2013. At the hearing, McKinney testified that he could
neither read nor write, and that, while he had been able to briefly work at jobs where
reading was not required, he had trouble holding down a job. McKinney and his mother
both testified that his literacy difficulties might be the result of a childhood injury to his
head caused by a two-story fall. McKinney further testified that he was injured while
working at Midwest Cylinder and that the injury led to his addiction to painkillers, as he
was prescribed Vicodin for pain, though McKinney never sought effective treatment for
his drug addiction. Additionally, McKinney had prior convictions for possession of
marijuana in 2004 and possession of paraphernalia in 2006. McKinney received
probation for both convictions.
On August 21, 2013, the trial court held a pronouncement of sentencing hearing.
At the hearing, the trial court considered McKinney’s limited I.Q. and learning
disabilities as mitigating factors. However, the trial court also found that McKinney’s
ability to participate in an ongoing illegal drug operation showed an ability to plan,
coordinate, and communicate. The trial court believed this ability showed that McKinney
did indeed have the ability to pursue a legal vocational career and instead chose to
participate in illegal activities. The court considered as aggravating factors McKinney’s
criminal history, that he sold illegal substances in a family housing complex, and that
McKinney failed to effectively seek drug treatment. After weighing the mitigating and
aggravating factors, the trial court sentenced McKinney to thirty years of incarceration
3 with ten years suspended and the final two years to be served on probation on Count I, to
ten years on Count II, and to four years on Count III with all sentences to be served
concurrently for an aggregate of thirty years with ten years suspended.
McKinney now appeals.
DISCUSSION AND DECISION
McKinney argues that the sentence imposed by the trial court is inappropriate in
light of the nature of his offenses and his character pursuant to Indiana Appellate Rule
7(B). More particularly, McKinney argues that, as his longest sentence is for dealing in a
schedule II controlled substance within 1,000 feet of a family housing complex as a class
A felony, this court should consider the fact that the legislature has revised the criminal
code concerning drug offenses. McKinney points the Court to revised Indiana Code
section 38-48-4-2(a), effective July 1, 2014, which classifies the sale of a schedule II
controlled substance, absent enhancing circumstances, as a Level 5 felony with an
advisory sentence of two years. Additionally, McKinney argues that the trial court did
not adequately consider his level of mental functioning when it decided to give him the
advisory sentence. McKinney asks that this Court reverse the trial court’s order
sentencing him to the advisory terms for each of his offenses and resentence him to the
minimum term of imprisonment to be served concurrently.
On appeal, 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.” Ind.
4 Appellate Rule 7(B). However, this court does not substitute its judgment for that of the
trial court. Foster v. State, 795 N.E.2d 1078, 1092 (Ind. Ct. App. 2003). Under
Appellate Rule 7(B), the question is not whether it is more appropriate to impose a
different sentence upon the defendant, but whether the defendant’s sentence is
appropriate. Steinberg v. State, 941 N.E.2d 515, 535 (Ind. Ct. App. 2011). The
defendant bears the burden of persuasion on appeal that the sentence he received is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
We start by noting that, when considering the nature of the offense, “the advisory
sentence is the starting point the Legislature has selected as an appropriate sentence for
the crime committed.” Anglemyer v. State, 868 N.E2d 482, 494 (Ind. 2007). McKinney
pleaded guilty to Count I, II, and III, and on each was given the advisory sentence: thirty
years is the advisory sentence for a class A felony under Indiana Code section 35-50-2-4,
ten years is the advisory sentence for a class B felony under Indiana Code section 35-50-
2-5, and four years is the advisory sentence for a class C felony under Indiana Code
section 35-50-2-6.
McKinney argues that these advisory sentences should be eschewed by this Court
as a result of the recent revisions the legislature has made concerning drug offenses.
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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 Apr 09 2014, 6:16 am establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LEANNA WEISSMANN GREGORY F. ZOELLER Lawrenceburg, Indiana Attorney General of Indiana
RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
MATTHEW McKINNEY, ) ) Appellant-Defendant, ) ) vs. ) No. 15A01-1309-CR-399 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE DEARBORN SUPERIOR COURT The Honorable Sally A. Blankenship, Judge Cause No. 15D02-1302-FA-8
April 9, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge Appellant-defendant Matthew McKinney appeals the thirty-year aggregate
sentence imposed by the trial court after he pleaded guilty to Count I, Dealing in a
Schedule II Controlled Substance,1 a class A felony, Count II, Dealing in a Schedule II
Controlled Substance,2 a class B felony, and Count III, Dealing in Marijuana,3 a class C
felony. More particularly, McKinney argues that the cumulative sentence was
inappropriate in light of the nature of his offense and his character. Concluding that
McKinney’s sentence was not inappropriate, we affirm the judgment of the trial court.
FACTS
In April 2012, the Dearborn County Special Crimes Unit received tips that
McKinney was dealing drugs from his apartment and at a park in Lawrenceburg.
Consequently, an undercover officer made contact with McKinney and purchased
hydrocodone and marijuana from him on several occasions, including January 3, 2013,
January 4, 2013, January 8, 2013, January 11, 2013, January 17, 2013, January 24, 2013,
and February 6, 2013. On February 13, 2013, the State charged McKinney with Count I,
dealing in a schedule II controlled substance within 1,000 feet of a family housing
complex as a class A felony; Count II dealing in a schedule II controlled substance as a
class B felony; and Count III dealing in marijuana within 1,000 feet of a family housing
complex as a class C felony.
1 Ind. Code § 35-48-4-2(a)(1)(C), (b)(2)(B)(iii) 2 I.C. § 35-48-4-2(a)(1)(C) 3 I.C. § 35-48-4-10(b)(2)(B)(ii) 2 On July 10, 2013, McKinney pleaded guilty to all counts. The trial court held a
sentencing hearing on August 20, 2013. At the hearing, McKinney testified that he could
neither read nor write, and that, while he had been able to briefly work at jobs where
reading was not required, he had trouble holding down a job. McKinney and his mother
both testified that his literacy difficulties might be the result of a childhood injury to his
head caused by a two-story fall. McKinney further testified that he was injured while
working at Midwest Cylinder and that the injury led to his addiction to painkillers, as he
was prescribed Vicodin for pain, though McKinney never sought effective treatment for
his drug addiction. Additionally, McKinney had prior convictions for possession of
marijuana in 2004 and possession of paraphernalia in 2006. McKinney received
probation for both convictions.
On August 21, 2013, the trial court held a pronouncement of sentencing hearing.
At the hearing, the trial court considered McKinney’s limited I.Q. and learning
disabilities as mitigating factors. However, the trial court also found that McKinney’s
ability to participate in an ongoing illegal drug operation showed an ability to plan,
coordinate, and communicate. The trial court believed this ability showed that McKinney
did indeed have the ability to pursue a legal vocational career and instead chose to
participate in illegal activities. The court considered as aggravating factors McKinney’s
criminal history, that he sold illegal substances in a family housing complex, and that
McKinney failed to effectively seek drug treatment. After weighing the mitigating and
aggravating factors, the trial court sentenced McKinney to thirty years of incarceration
3 with ten years suspended and the final two years to be served on probation on Count I, to
ten years on Count II, and to four years on Count III with all sentences to be served
concurrently for an aggregate of thirty years with ten years suspended.
McKinney now appeals.
DISCUSSION AND DECISION
McKinney argues that the sentence imposed by the trial court is inappropriate in
light of the nature of his offenses and his character pursuant to Indiana Appellate Rule
7(B). More particularly, McKinney argues that, as his longest sentence is for dealing in a
schedule II controlled substance within 1,000 feet of a family housing complex as a class
A felony, this court should consider the fact that the legislature has revised the criminal
code concerning drug offenses. McKinney points the Court to revised Indiana Code
section 38-48-4-2(a), effective July 1, 2014, which classifies the sale of a schedule II
controlled substance, absent enhancing circumstances, as a Level 5 felony with an
advisory sentence of two years. Additionally, McKinney argues that the trial court did
not adequately consider his level of mental functioning when it decided to give him the
advisory sentence. McKinney asks that this Court reverse the trial court’s order
sentencing him to the advisory terms for each of his offenses and resentence him to the
minimum term of imprisonment to be served concurrently.
On appeal, 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.” Ind.
4 Appellate Rule 7(B). However, this court does not substitute its judgment for that of the
trial court. Foster v. State, 795 N.E.2d 1078, 1092 (Ind. Ct. App. 2003). Under
Appellate Rule 7(B), the question is not whether it is more appropriate to impose a
different sentence upon the defendant, but whether the defendant’s sentence is
appropriate. Steinberg v. State, 941 N.E.2d 515, 535 (Ind. Ct. App. 2011). The
defendant bears the burden of persuasion on appeal that the sentence he received is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
We start by noting that, when considering the nature of the offense, “the advisory
sentence is the starting point the Legislature has selected as an appropriate sentence for
the crime committed.” Anglemyer v. State, 868 N.E2d 482, 494 (Ind. 2007). McKinney
pleaded guilty to Count I, II, and III, and on each was given the advisory sentence: thirty
years is the advisory sentence for a class A felony under Indiana Code section 35-50-2-4,
ten years is the advisory sentence for a class B felony under Indiana Code section 35-50-
2-5, and four years is the advisory sentence for a class C felony under Indiana Code
section 35-50-2-6.
McKinney argues that these advisory sentences should be eschewed by this Court
as a result of the recent revisions the legislature has made concerning drug offenses.
However, McKinney committed his crimes and was sentenced before the legislature
made these revisions, and while McKinney is correct that, “had McKinney committed his
crime after July 1, 2014, he would no longer be eligible” for the enhancement for selling
within 1,000 feet of a housing complex, he fails to note that he might still be eligible for
5 an enhancement for selling within 500 feet of a public park while a person under eighteen
years of age was reasonably expected to be present under the Indiana Code section 35-48-
1-16.5, effective July 1, 2014. Appellant’s Br. p. 11. Regardless, Courts must generally
sentence defendants under the sentencing statutes in effect at the time the defendant
committed the offense.4 Barber v. State, 863 N.E.2d 1199, 1209 (Ind. Ct. App. 2007).
Therefore, McKinney’s argument concerning the nature of his offenses avails him of
nothing.
McKinney also contends that his sentence is inappropriate in light of his character
and avers that the trial court did not give apt consideration to the possibility of a lesser
rehabilitative sentence in light of McKinney’s mental struggles. However, the record
shows that the court did indeed consider McKinney’s mental problems and that it
recognized his educational struggles and low I.Q. Tr. p. 71. However, after considering
McKinney’s criminal history and his extensive pattern of selling illegal controlled
substances, the trial court determined that he was “not likely to respond to short term
incarceration.” Id. at 72. In light of McKinney’s criminal history and pattern of selling
drugs, we do not find that the trial court’s sentence was inappropriate.
The judgment of the trial court is affirmed.
BAILEY, J., and MATHIAS, J., concur.
4 An exception to this rule exists. The doctrine of amelioration provides that “a defendant who is sentenced after the effective date of a statute providing for more lenient sentencing is entitled to be sentenced pursuant to that statute rather than the sentencing statute in effect at the time of the commission or conviction of the crime.” Richards v. State, 681 N.E.2d 208, 213 (Ind. 1997). However, McKinney was sentenced before the effective date of the revised Indiana Code section 38-48-4-2(a), which is effective July 1, 2014. Thus, the doctrine of amelioration does not apply. 6