Patrick D. Keith v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 24, 2015
• Docket: 73A05-1412-CR-575
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Aug 24 2015, 9:30 am 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 Andrew B. Arnett Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana

Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Patrick D. Keith, August 24, 2015 Appellant-Defendant, Court of Appeals Cause No. 73A05-1412-CR-575 v. Appeal from the Shelby Circuit Court State of Indiana, The Honorable Charles D. Appellee-Plaintiff. O’Connor, Judge Trial Court Cause No. 73C01-1301-FD-13 and 73C01-1304-FB-27

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 73A05-1412-CR-575 | August 24, 2015 Page 1 of 6 Case Summary [1] Patrick Keith appeals his aggregate sentence of twenty and one-half years, three

of which were suspended to probation, for Class B felony possession of

methamphetamine, Class D felony possession of methamphetamine, Class D

felony possession of a controlled substance, Class A misdemeanor possession of

paraphernalia, and for being an habitual substance offender. We affirm.

Issue [2] Keith raises one issue, which we restate as whether his sentence is

inappropriate.

Facts [3] In January 2013, police executed a writ of attachment on Keith in Shelby

County for his failure to pay child support. During a pat down of Keith, the

arresting officer found a glass pipe, pills, and a baggie containing

methamphetamine in his pockets. The State charged Keith with Class D felony

possession of methamphetamine, Class D felony possession of a controlled

substance, and Class A misdemeanor possession of paraphernalia in Cause No.

73C01-1301-FD-13 (“FD-13”). After Keith was released on bond, an

information alleging he was an habitual substance offender was filed.

[4] In April 2013, while out on bond, police were investigating the purchase of

pseudoephedrine by a woman who indicated that she traded Keith

Court of Appeals of Indiana | Memorandum Decision 73A05-1412-CR-575 | August 24, 2015 Page 2 of 6 pseudoephedrine for methamphetamine, when they encountered Keith outside

of a family housing complex. During the encounter, Keith took a baggie

containing methamphetamine from his pocket and gave it to the officers. The

State charged Keith with Class B felony possession of methamphetamine and

alleged that he was an habitual substance offender in Cause No. 73C01-1304-

FB-27 (“FB-27”).

[5] Keith pled guilty to all the charges and he admitted to the habitual substance

offender allegations in an open plea. The trial court considered as aggravating

Keith’s criminal history and the fact that he was on bond when he committed

the FB-27 offense. The trial court considered Keith’s guilty plea as mitigating.

[6] For FD-13, the trial court sentenced Keith to two and one-half years on each of

the Class D felony charges and to one year on the misdemeanor charge. The

trial court enhanced the possession of methamphetamine charge by three years

for Keith’s status as an habitual substance offender and ordered the sentences to

be served concurrently for a total executed sentence of five and one-half years.

[7] For FB-27, the trial court sentenced Keith to twelve years, with three years

suspended to probation and enhanced by three years for his habitual substance

offender status, for a sentence of fifteen years executed and three years

suspended to probation. The trial court ordered the sentence to be served

consecutive to the FD-13 sentence for a total of twenty and one-half years, with

seventeen and one half years executed and three years suspended. Keith now

appeals.

Court of Appeals of Indiana | Memorandum Decision 73A05-1412-CR-575 | August 24, 2015 Page 3 of 6 Analysis [8] Keith argues that his sentence is inappropriate. Indiana Appellate Rule 7(B)

permits us to revise a sentence authorized by statute if, after due consideration

of the trial court’s decision, we find that the sentence is inappropriate in light of

the nature of the offense and the character of the offender. Although Appellate

Rule 7(B) does not require us to be “extremely” deferential to a trial court’s

sentencing decision, we still must give due consideration to that decision.

Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also

understand and recognize the unique perspective a trial court brings to its

sentencing decisions. Id. “Additionally, a defendant bears the burden of

persuading the appellate court that his or her sentence is inappropriate.” Id.

[9] The principal role of Appellate Rule 7(B) 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 “should focus on the forest—the aggregate sentence—rather

than the trees—consecutive or concurrent, number of counts, or length of the

sentence on any individual count.” Id. Whether a sentence is inappropriate

ultimately turns on the culpability of the defendant, the severity of the crimes,

the damage done to others, and myriad other factors that come to light in a

given case. Id. at 1224.

Court of Appeals of Indiana | Memorandum Decision 73A05-1412-CR-575 | August 24, 2015 Page 4 of 6 [10] Regarding the nature of the offenses, we acknowledge that Keith’s offenses are

not particularly egregious. However, Keith did commit the FB-27 offense while

out on bond from the FD-13 offense. Further, although he denied making

methamphetamine, Keith acknowledged that he was providing the ingredients

needed to make methamphetamine in exchange for the drug. Also, the

probable cause affidavit indicates that he engaged the help of others to obtain

the ingredients.

[11] Moreover, Keith’s character, particularly his criminal history, supports his

sentence notwithstanding his guilty pleas. Twenty-nine-year-old Keith’s

criminal history includes a juvenile adjudication for what would have been

misdemeanor possession of marijuana and adult criminal convictions for Class

D felony causing serious bodily injury while operating a motor vehicle while

intoxicated, Class A misdemeanor possession of marijuana, Class B

misdemeanor disorderly conduct, two counts of Class D felony resisting law

enforcement, Class B misdemeanor criminal mischief, Class B misdemeanor

public intoxication that endangers the person’s life, Class A misdemeanor

criminal trespass, and Class D felony possession of a controlled substance. A

review of his numerous criminal charges he faced over the years shows that

most of the offenses involved alcohol or drugs. Further, Keith was given the

benefit of probation three times in the past, and it was revoked every time.

Under these circumstances, we are not convinced that Keith’s aggregate

sentence of twenty and one-half years, with three years suspended, is

Court of Appeals of Indiana | Memorandum Decision 73A05-1412-CR-575 | August 24, 2015 Page 5 of 6 Conclusion [12] Keith has not established that his sentence is inappropriate in light of the nature

of the offenses and the character of the offender. We affirm.

[13] Affirmed.

Riley, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 73A05-1412-CR-575 | August 24, 2015 Page 6 of 6