Morgan Perona v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 5, 2020
• Docket: 20A-CR-274
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Aug 05 2020, 9:39 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 David L. Joley Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana Benjamin J. Shoptaw Deputy Attorney General Alexandria Sons Certified Legal Intern Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Morgan Perona, August 5, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-274 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff Judge Trial Court Cause No. 02D05-1905-F5-143

Baker, Senior Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-274 | August 5, 2020 Page 1 of 4 [1] Morgan Perona appeals the sentence imposed by the trial court after Perona

pleaded guilty to Level 5 felony possession of methamphetamine and Class A

misdemeanor resisting law enforcement. Perona argues that the sentence is

inappropriate in light of the nature of the offenses and his character. Finding

the sentence not inappropriate, we affirm.

[2] On May 7, 2019, Perona was a passenger in a vehicle that was pulled over by a

Fort Wayne police officer. Perona was found to be in possession of a small bag

that contained a substance later determined to be 6.3 grams of

methamphetamine. The officer grabbed Perona’s wrists and asked him to place

his hands behind his back. Perona resisted, another officer came to assist, and

both officers deployed their tasers.

[3] On May 13, 2019, the State charged Perona with Level 5 felony possession of

methamphetamine and Class A misdemeanor resisting law enforcement. On

June 3, 2019, Perona pleaded guilty as charged and was accepted into the Drug

Court Diversion Program. Perona violated the rules of Drug Court on four

occasions; on the fourth occasion, Perona was terminated from Drug Court.

On January 7, 2020, the trial court sentenced Perona to three years for

possession of methamphetamine and to one year for resisting law enforcement,

to be served concurrently. Perona now appeals.

[4] Perona argues that the sentence imposed by the trial court is inappropriate in

light of the nature of the offenses and his character pursuant to Indiana

Appellate Rule 7(B). We must “conduct [this] review with substantial

Court of Appeals of Indiana | Memorandum Decision 20A-CR-274 | August 5, 2020 Page 2 of 4 deference and give ‘due consideration’ to the trial court’s decision—since the

‘principal role of [our] review is to attempt to leaven the outliers,’ and not to

achieve a perceived ‘correct’ sentence.” Knapp v. State, 9 N.E.3d 1274, 1292

(Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013))

(internal citations omitted).

[5] Perona pleaded guilty to a Level 5 felony, for which he faced a sentence of one

to six years, with an advisory term of three years. Ind. Code § 35-50-2-6(b).

The trial court imposed an advisory three-year term, as well as a concurrent

one-year term for the Class A misdemeanor conviction, for an aggregate term of

three years imprisonment. The trial court denied Perona’s request to serve the

sentence in community corrections. This Court has observed that it is “quite

difficult for a defendant to prevail on a claim that the placement of his sentence

is inappropriate.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008).

[6] With respect to the nature of the offenses, Perona possessed over six grams of

methamphetamine and resisted the officers who were trying to place him in

custody. We agree that these offenses are not the worst of the worst, but the

trial court did not sentence him as such—instead, it imposed the advisory three-

year term.

[7] With respect to Perona’s character, he has a relevant and lengthy history of

drug crimes. As an adult, he has been convicted of two felonies and three

misdemeanors; he also had multiple contacts with the juvenile system. The

trial court noted that over the course of Perona’s history with the criminal

Court of Appeals of Indiana | Memorandum Decision 20A-CR-274 | August 5, 2020 Page 3 of 4 justice system, he has been given “short jail sentences, longer jail sentences,

unsupervised probation, community corrections treatment, active adult

probation, and then the Drug Court Program.” Sent. Hrg. Tr. p. 7. Regardless

of the leniency of the sentences imposed, Perona has continued to commit

crimes. In fact, in this very case, he was afforded leniency at the outset with the

Drug Court Diversion Program, but after four violations of the program rules,

he lost that privilege.

[8] We acknowledge that Perona is struggling with a significant substance abuse

problem. But given that multiple past attempts at leniency have failed, we

cannot say that the trial court’s imposition of an advisory three-year term or

denial of the privilege of serving the sentence in community corrections are

inappropriate.

[9] The judgment of the trial court is affirmed.

Bailey, J., and Vaidik, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-274 | August 5, 2020 Page 4 of 4