MEMORANDUM DECISION Jun 30 2015, 7:42 am
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 establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Laura Raiman Gregory F. Zoeller Alcorn Goering & Sage, LLP Attorney General of Indiana Madison, Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael A. Powers, June 30, 2015
Appellant-Defendant, Court of Appeals Case No. 03A01-1410-CR-450 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable James D. Worton, Appellee-Plaintiff. Judge
Cause Nos. 03D01-1309-FB-4921, 03D01-1309-FD-5043, and 03D01-1310-FB-5587
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 03A01-1410-CR-450| June 30, 2015 Page 1 of 7 Statement of the Case [1] In this consolidated appeal, Michael Powers appeals his sentence following his
conviction for dealing in methamphetamine, as a Class B felony, in Cause No.
03D01-1310-FB-5587 (“FB-5587”), and the revocation of his probation in
Cause No. 03D01-1309-FB-4921 (“FB-4921). Powers presents two issues for
our review:
1. Whether his sentence in FB-5587 is inappropriate in light of the nature of the offense and his character.
2. Whether the trial court abused its discretion when it ordered him to serve the balance of his suspended sentence after revoking his probation in FB-4921.
[2] We affirm.
Facts and Procedural History [3] On October 12, 2009, in FB-4921, the State charged Powers with distribution of
methamphetamine, as a Class B felony, and possession of chemical reagents or
precursors with intent to manufacture a controlled substance, as a Class D
felony. On August 3, 2010, Powers pleaded guilty to distribution of
methamphetamine, as a Class B felony. The trial court sentenced Powers to
twelve years in the Indiana Department of Correction. The court suspended
Powers’ sentence in FB-4921 to the Bartholomew County Forensic Diversion
Program, with five years’ probation.
Court of Appeals of Indiana | Memorandum Decision 03A01-1410-CR-450| June 30, 2015 Page 2 of 7 [4] On September 5, 2013, the State filed a petition to revoke probation alleging
Powers had violated probation by committing additional offenses. In
particular, on September 17, in Cause No. 03D01-1309-FD-5043 (“FD-5043”),
the State charged Powers with possession of methamphetamine, as a Class D
felony, and possession of chemical reagents or precursors with intent to
manufacture a controlled substance, as a Class D felony. In addition, on
October 16, in FB-5587, the State charged Powers with two counts of
distributing methamphetamine. Powers pleaded guilty to one count of
distribution of methamphetamine in FB-5587, and Powers pleaded guilty to the
violation of his probation in FB-4921.
[5] In FB-5587, the trial court sentenced Powers to sixteen years for distributing
methamphetamine, as a Class B felony. And the State revoked Powers’
probation and reinstated the suspended twelve year sentence in FB-4921. The
trial court ordered that the sentences in both causes be served consecutively.
This appeal ensued.
Discussion and Decision Issue One: Inappropriate Sentence
[6] Powers first contends that his sentence in FB-5587 is inappropriate in light of
the nature of the offense and his character. The trial court imposed a sixteen-
year sentence. The sentencing range for a Class B felony is six years to twenty
years, with the advisory sentence being ten years. Ind. Code § 35-50-2-5.
Court of Appeals of Indiana | Memorandum Decision 03A01-1410-CR-450| June 30, 2015 Page 3 of 7 [7] Although a trial court may have acted within its lawful discretion in
determining a sentence, Article VII, Sections 4 and 6 of the Indiana
Constitution “authorize[] independent appellate review and revision of a
sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind.
Ct. App. 2007) (alteration original). This appellate authority is implemented
through Indiana Appellate Rule 7(B). Id. Revision of a sentence under
Appellate Rule 7(B) requires the appellant to demonstrate that his sentence is
inappropriate in light of the nature of his offenses and his character. See App.
R. 7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We
assess the trial court’s recognition or non-recognition of aggravators and
mitigators as an initial guide to determining whether the sentence imposed was
inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006).
However, “a defendant must persuade the appellate court that his or her
sentence has met th[e] inappropriateness standard of review.” Roush, 875
N.E.2d at 812 (alteration original).
[8] Our supreme court has stated that “sentencing is principally a discretionary
function in which the trial court’s judgment should receive considerable
deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). Indiana’s
flexible sentencing scheme allows trial courts to tailor an appropriate sentence
to the circumstances presented. See id. at 1224. The principal role of appellate
review is to attempt to “leaven the outliers.” Id. at 1225. Whether we regard a
sentence as inappropriate at the end of the day turns on “our sense of the
Court of Appeals of Indiana | Memorandum Decision 03A01-1410-CR-450| June 30, 2015 Page 4 of 7 culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other facts that come to light in a given case.” Id. at 1224.
[9] Powers first contends that his sentence is inappropriate in light of the nature of
the offense. While we agree with Powers that there is nothing particularly
aggravating about the nature of his offense, that is not conclusive to our
analysis. Rather, we consider both the nature of the offense and the defendant’s
character. App. R. 7(B).
[10] Powers also contends that his sentence is inappropriate in light of his character.
Powers acknowledges that he violated his probation when he distributed
methamphetamine in July 2013. But Powers contends that most of his criminal
history is relatively minor given that his history consists of offenses that are
unrelated to the distribution of methamphetamine. Powers further contends
that his criminal history is not aggravating because his previous offenses were
committed more than ten years prior.
[11] We are not persuaded. Powers committed the offense in FB-5587 while on
probation, which is a substantial consideration in the assessment of his
character. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 2008) (citing Ryle v.
State, 842 N.E.2d 320, 325 n. 5 (Ind. 2005)). Further, Powers has a long history
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MEMORANDUM DECISION Jun 30 2015, 7:42 am
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 establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Laura Raiman Gregory F. Zoeller Alcorn Goering & Sage, LLP Attorney General of Indiana Madison, Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael A. Powers, June 30, 2015
Appellant-Defendant, Court of Appeals Case No. 03A01-1410-CR-450 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable James D. Worton, Appellee-Plaintiff. Judge
Cause Nos. 03D01-1309-FB-4921, 03D01-1309-FD-5043, and 03D01-1310-FB-5587
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 03A01-1410-CR-450| June 30, 2015 Page 1 of 7 Statement of the Case [1] In this consolidated appeal, Michael Powers appeals his sentence following his
conviction for dealing in methamphetamine, as a Class B felony, in Cause No.
03D01-1310-FB-5587 (“FB-5587”), and the revocation of his probation in
Cause No. 03D01-1309-FB-4921 (“FB-4921). Powers presents two issues for
our review:
1. Whether his sentence in FB-5587 is inappropriate in light of the nature of the offense and his character.
2. Whether the trial court abused its discretion when it ordered him to serve the balance of his suspended sentence after revoking his probation in FB-4921.
[2] We affirm.
Facts and Procedural History [3] On October 12, 2009, in FB-4921, the State charged Powers with distribution of
methamphetamine, as a Class B felony, and possession of chemical reagents or
precursors with intent to manufacture a controlled substance, as a Class D
felony. On August 3, 2010, Powers pleaded guilty to distribution of
methamphetamine, as a Class B felony. The trial court sentenced Powers to
twelve years in the Indiana Department of Correction. The court suspended
Powers’ sentence in FB-4921 to the Bartholomew County Forensic Diversion
Program, with five years’ probation.
Court of Appeals of Indiana | Memorandum Decision 03A01-1410-CR-450| June 30, 2015 Page 2 of 7 [4] On September 5, 2013, the State filed a petition to revoke probation alleging
Powers had violated probation by committing additional offenses. In
particular, on September 17, in Cause No. 03D01-1309-FD-5043 (“FD-5043”),
the State charged Powers with possession of methamphetamine, as a Class D
felony, and possession of chemical reagents or precursors with intent to
manufacture a controlled substance, as a Class D felony. In addition, on
October 16, in FB-5587, the State charged Powers with two counts of
distributing methamphetamine. Powers pleaded guilty to one count of
distribution of methamphetamine in FB-5587, and Powers pleaded guilty to the
violation of his probation in FB-4921.
[5] In FB-5587, the trial court sentenced Powers to sixteen years for distributing
methamphetamine, as a Class B felony. And the State revoked Powers’
probation and reinstated the suspended twelve year sentence in FB-4921. The
trial court ordered that the sentences in both causes be served consecutively.
This appeal ensued.
Discussion and Decision Issue One: Inappropriate Sentence
[6] Powers first contends that his sentence in FB-5587 is inappropriate in light of
the nature of the offense and his character. The trial court imposed a sixteen-
year sentence. The sentencing range for a Class B felony is six years to twenty
years, with the advisory sentence being ten years. Ind. Code § 35-50-2-5.
Court of Appeals of Indiana | Memorandum Decision 03A01-1410-CR-450| June 30, 2015 Page 3 of 7 [7] Although a trial court may have acted within its lawful discretion in
determining a sentence, Article VII, Sections 4 and 6 of the Indiana
Constitution “authorize[] independent appellate review and revision of a
sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind.
Ct. App. 2007) (alteration original). This appellate authority is implemented
through Indiana Appellate Rule 7(B). Id. Revision of a sentence under
Appellate Rule 7(B) requires the appellant to demonstrate that his sentence is
inappropriate in light of the nature of his offenses and his character. See App.
R. 7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We
assess the trial court’s recognition or non-recognition of aggravators and
mitigators as an initial guide to determining whether the sentence imposed was
inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006).
However, “a defendant must persuade the appellate court that his or her
sentence has met th[e] inappropriateness standard of review.” Roush, 875
N.E.2d at 812 (alteration original).
[8] Our supreme court has stated that “sentencing is principally a discretionary
function in which the trial court’s judgment should receive considerable
deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). Indiana’s
flexible sentencing scheme allows trial courts to tailor an appropriate sentence
to the circumstances presented. See id. at 1224. The principal role of appellate
review is to attempt to “leaven the outliers.” Id. at 1225. Whether we regard a
sentence as inappropriate at the end of the day turns on “our sense of the
Court of Appeals of Indiana | Memorandum Decision 03A01-1410-CR-450| June 30, 2015 Page 4 of 7 culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other facts that come to light in a given case.” Id. at 1224.
[9] Powers first contends that his sentence is inappropriate in light of the nature of
the offense. While we agree with Powers that there is nothing particularly
aggravating about the nature of his offense, that is not conclusive to our
analysis. Rather, we consider both the nature of the offense and the defendant’s
character. App. R. 7(B).
[10] Powers also contends that his sentence is inappropriate in light of his character.
Powers acknowledges that he violated his probation when he distributed
methamphetamine in July 2013. But Powers contends that most of his criminal
history is relatively minor given that his history consists of offenses that are
unrelated to the distribution of methamphetamine. Powers further contends
that his criminal history is not aggravating because his previous offenses were
committed more than ten years prior.
[11] We are not persuaded. Powers committed the offense in FB-5587 while on
probation, which is a substantial consideration in the assessment of his
character. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 2008) (citing Ryle v.
State, 842 N.E.2d 320, 325 n. 5 (Ind. 2005)). Further, Powers has a long history
of substance abuse, and he admitted to having used methamphetamine and
cocaine on the day of his arrest in FB-4921. Powers was also found to be at a
very high risk to reoffend under the Indiana Risk Assessment System. We
Court of Appeals of Indiana | Memorandum Decision 03A01-1410-CR-450| June 30, 2015 Page 5 of 7 cannot say that Powers’ sixteen-year sentence is inappropriate in light of the
nature of the offense and his character.
Issue Two: Abuse of Discretion in Imposing Sentence
[12] Powers also contends that the trial court abused its discretion when it reinstated
the balance of his twelve-year suspended sentence after revoking his probation.
Probation revocation is a two-step process. Alford v. State, 965 N.E.2d 133, 134
(Ind. Ct. App. 2012). First the court must determine whether a violation of a
condition of probation has occurred. Id. Upon determining that a violation of
a condition of probation has occurred, a trial court may impose one or more of
the following sanctions:
(1) Continue the person on probation, with or without modifying or enlarging the conditions.
(2) Extend the persons probationary period for not more than one year beyond the original probationary period.
(3) Order execution on all or part of the sentence that was suspended at the time of initial sentencing.
Ind. Code § 35-38-2-3(g). We review a trial court’s sentencing decisions for
probation violations for an abuse of discretion. Alford, 965 N.E.2d at 135. An
abuse of discretion occurs where the decision is clearly against the logic and
effect of the facts and circumstances. Id.
[13] Powers contends that the evidence supports a lesser sanction for his probation
violation. In particular, Powers references his completion of the Bartholomew
Court of Appeals of Indiana | Memorandum Decision 03A01-1410-CR-450| June 30, 2015 Page 6 of 7 County jail additions program, his family and community support, and his
“candid” confession to his probation violation. Appellant’s Br. 9. But Powers
ignores the evidence that he was given leniency after his first conviction for
distribution of methamphetamine but then violated his probation by again
distributing methamphetamine. We hold that the trial court did not abuse its
discretion when it reinstated Powers’ twelve-year suspended sentence.
[14] Affirmed.
Baker, J., and Friedlander, J., concur.
Court of Appeals of Indiana | Memorandum Decision 03A01-1410-CR-450| June 30, 2015 Page 7 of 7