Robert D. Rivard v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 30, 2017
• Docket: 84A04-1611-CR-2838
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 30 2017, 8:19 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office Attorney General of Indiana Brooklyn, Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert D. Rivard, March 30, 2017 Appellant-Defendant, Court of Appeals Case No. 84A04-1611-CR-2838 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable David R. Bolk, Appellee-Plaintiff. Judge Trial Court Cause No. 84D03-1603-F2-812

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2838 | March 30, 2017 Page 1 of 5 Statement of the Case [1] Robert D. Rivard appeals his sentence after he pleaded guilty to dealing in

methamphetamine, as a Level 2 felony. Rivard raises a single issue for our

review, namely, whether his sentence is inappropriate in light of the nature of

the offense and his character. We affirm.

Facts and Procedural History [2] On March 17, 2016, the Indiana State Police obtained a search warrant for

Rivard’s residence after having conducted two controlled drug buys there.

While executing that warrant, Rivard informed the searching officers that there

was methamphetamine in the middle drawer of his bedroom dresser. There,

officers found and seized 37.5 grams of methamphetamine. Officers also found

and seized a black digital scale with white residue on it, a glass smoking device,

and more than $5,000 in cash.

[3] The State charged Rivard with several offenses. On September 16, Rivard

pleaded guilty, pursuant to a written plea agreement, to dealing in

methamphetamine, as a Level 2 felony. In exchange, the State agreed to

dismiss four other charges and an habitual offender allegation. The parties

further agreed that Rivard would not be sentenced to more than twenty-five

years executed.

[4] The trial court accepted Rivard’s plea agreement and held a sentencing hearing.

At the conclusion of that hearing, the court stated as follows:

Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2838 | March 30, 2017 Page 2 of 5 [T]he aggravating factor here is . . . Mr. Rivard’s criminal history. [H]e has nine prior felony convictions . . . many of them are alcohol and drug related . . . . I find no other statutory aggravating . . . factors. . . . [W]ith respect to . . . the mitigating factors . . . I’m not go[ing] to give much weight to the fact that he ple[aded] guilty because the habitual was dismissed as part of this proceeding . . . [,] but he did plead guilty, has taken responsibility and ple[aded], and has pl[eaded] to a significant and . . . serious . . . offense . . . . [B]ut he received a significant benefit because had he been convicted of a Level Two . . . it’s a mandatory minimum non-suspendible . . . on . . . the habitual portion. . . . Mr. Rivard clearly has some health and medical issues that are more significant than . . . the Court usually sees. He’s had a stroke, he’s had . . . difficulty reading and writing, has difficulty using the right side of his body. . . . He was cooperative [during the execution of the search warrant]. . . . Mr. Rivard is not addicted to methamphetamine. . . . He’s impoverished. He’d make [sic] an economic business decision . . . to sell methamphetamine. . . . [H]e’s apologized for it, but it’s clear that this is not a person who’s using a little bit, selling a little bit. There was a significant amount of methamphetamine here . . . and Mr. Rivard . . . wasn’t using. He has substance abuse issues . . . I mean, alcohol addiction probably, marijuana addiction admittedly . . . . [I]n light of Mr. Rivard’s criminal history . . . this requires a slightly aggravated sentence over and above the advisory, so I’m go[ing] to impose a sentence of nineteen years. I’m going to order that six be executed at the Indiana Department of Correction[.] I’m go[ing to] order that Mr. Rivard be placed in a Therapeutic Community; specifically the Court’s recommending G.R.I.P. or P.L.U.S. That upon successful completion of G.R.I.P. or P.L.U.S. . . . the Court will immediately suspend the balance of the six years and place him on formal probation . . . . With respect to the fourteen years suspended, I’m going to order that . . . [six and one-half years] be formal [probation], [six and one-half years] informal.

Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2838 | March 30, 2017 Page 3 of 5 Tr. Vol. IV at 21-24. This appeal ensued.

Discussion and Decision [5] Rivard contends that his sentence is inappropriate. Indiana Appellate Rule 7(B)

permits an Indiana appellate court to “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.” We assess the trial court’s recognition or nonrecognition 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). The principal role of appellate review is to “leaven the

outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). A defendant

must persuade the appellate court that his or her sentence has met the

inappropriateness standard of review. Roush v. State, 875 N.E.2d 801, 812 (Ind.

Ct. App. 2007).

[6] According to Rivard, his nineteen-year sentence is inappropriate in light of the

nature of the offense because, while he was in possession of a large amount of

methamphetamine and cash, he was cooperative with police during the

execution of the warrant, he was not in possession of firearms or other

weapons, and he did not act “in a violent or aggressive manner at any time.”

Appellant’s Br. at 7. And, with respect to his character, Rivard contends that

his sentence is inappropriate because, while he has a lengthy criminal history,

he suffers from several health problems, he is impoverished, he cooperated with

police, and he pleaded guilty. Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2838 | March 30, 2017 Page 4 of 5 [7] We cannot agree with Rivard that his sentence is inappropriate. The trial court,

having already considered all the factors raised on appeal, balanced them and

imposed a nuanced sentence. In particular, the court ordered Rivard to serve

nineteen years total, which is one and one-half years above the advisory term

for a Level 2 felony. See Ind. Code § 35-50-2-4.5 (2016). But the court ordered

only six of those nineteen years to be executed—well below the twenty-five

years the court could have imposed under the plea agreement—and of those six

years the court instructed Rivard that it would immediately suspend any

portion of that time that remained once Rivard successfully completed a

therapeutic community program. Of the other thirteen years, the court ordered

that they be evenly split between formal and informal probation.

[8] Considering the amount of methamphetamine discovered in Rivard’s residence,

which was nearly quadruple the amount needed to convict him of the Level 2

felony offense, and his extensive criminal history, we cannot say that Rivard’s

sentence is inappropriate in light of the nature of the offense or his character.

The trial court’s carefully crafted sentence is not an “outlier” that requires

appellate revision. See Cardwell, 895 N.E.2d at 1225. We affirm Rivard’s

sentence.

[9] Affirmed.

Riley, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2838 | March 30, 2017 Page 5 of 5