Steven A. Trusty v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 9, 2020
• Docket: 19A-CR-2982
• 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 Jul 09 2020, 9:11 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Christopher Sturgeon Curtis T. Hill, Jr. Clark County Public Defender Office Attorney General of Indiana Jeffersonville, Indiana Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Steven A. Trusty, July 9, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2982 v. Appeal from the Clark Circuit Court State of Indiana, The Honorable Bradley B. Jacobs, Appellee-Plaintiff. Judge Trial Court Cause No. 10C02-1708-F2-32

Mathias, Judge.

[1] Steven Trusty (“Trusty”) was convicted in Clark Circuit Court of Level 5 felony

possession of methamphetamine, Level 5 felony possession of cocaine, Level 5

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2982 | July 9, 2020 Page 1 of 11 felony possession of a narcotic drug, and Level 6 felony unlawful possession of

a legend drug. The trial court imposed a three-year aggregate sentence, with

two years executed and one year suspended. Trusty appeals his sentence and

raises two issues:

I. Whether the trial court abused its discretion when it failed to find two proposed mitigating circumstances; and

II. Whether Trusty’s three-year sentence is inappropriate in light of the nature of the offense and the character of the offender.

[2] We affirm.

Facts and Procedural History [3] On August 8, 2017, law enforcement officers observed Trusty and a female

passenger unconscious in a vehicle parked in a motel parking lot in Clark

County, Indiana. The officers roused Trusty and his passenger by knocking on

the car windows. The female passenger gave the officers a false identity. While

searching the vehicle for the passenger’s identification, the officers found

several plastic bags containing powdery and rock-like substances that were later

identified as methamphetamine and cocaine. The officers found syringes and

pills later identified as Carisoprodol, Hydrocodone, and Gabapentin. They

found a digital scale, straw, and spoons all containing white residue. They also

discovered a loaded firearm behind the driver’s seat of the vehicle. Trusty

admitted that he was at the motel to sell methamphetamine.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2982 | July 9, 2020 Page 2 of 11 [4] The State charged Trusty with seven counts including Level 3 felony dealing in

methamphetamine, Level 5 felony possession of methamphetamine, Level 5

felony possession of cocaine, Level 5 felony possession of a narcotic drug, Level

6 felony possession of a controlled substance, and two counts of Level 6 felony

possession of a legend drug. In October 2018, Trusty filed a motion to suppress

the property seized during the warrantless search of his vehicle. The trial court

denied the motion.

[5] Shortly thereafter, Trusty entered into a plea agreement with the State. He

agreed to plead guilty to Level 5 felony possession of methamphetamine, Level

5 felony possession of cocaine, Level 5 felony possession of a narcotic drug, and

Level 6 felony unlawful possession of a legend drug. In exchange for Trusty’s

guilty plea, the State dismissed the remaining charges, including the Level 3

felony dealing charge. The plea agreement did not provide any terms

concerning Trusty’s sentence. The trial court accepted Trusty’s guilty plea on

December 10, 2018.

[6] Trusty’s sentencing hearing was continued and set for March 12, 2019. Trusty

failed to appear for the hearing, and a warrant was issued for his arrest. Trusty

was taken into custody in August 2019.1 After several continuances were

granted, his sentencing hearing was held on November 20, 2019.

1 From reviewing the record, we conclude that it is reasonably likely that Trusty was absent from Indiana due to pending criminal charges in Kentucky.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2982 | July 9, 2020 Page 3 of 11 [7] At the sentencing hearing, the trial court considered Trusty’s criminal history.

In 2014, Trusty was convicted in Florida of three counts of Violation of the

Uniform Code of Military Justice-Indecent Act with a Child and one count of

Uniform Code of Military Justice-Assault on a Child. Trusty also had ten

pending charges in Kentucky for various crimes including burglary, possession

of heroin, and possession of a firearm. The court did not consider Trusty’s

military service when imposing the sentence because Trusty received a bad

conduct discharge from the Navy.

[8] The trial court declined to find aggravating and mitigating circumstances and

ordered Trusty to serve the advisory three-year sentence for each Level 5 felony

conviction, with two years executed in the Department of Correction and one

year suspended to probation. The court also ordered Trusty to serve one year

suspended to probation for the Level 6 felony conviction. All sentences were to

be served concurrent to each other resulting in an aggregate three-year sentence

with one year suspended to probation. The court also stated that it would

consider a modification to Trusty’s sentence if he successfully completed “the

clinically appropriate substance abuse treatment program as determined by” the

Department of Correction. Appellant’s App. p. 120. Trusty now appeals. 2

2 We do not agree with the State’s assertion that Trusty waived the right to appeal his sentence. The waiver provision in Trusty’s plea agreement vaguely stated that Trusty “waives right to appeal.” Appellant’s App. p. 71. During the guilty plea hearing, the trial court told Trusty he was waiving his right to appeal his conviction. Tr. p. 24. Trusty was not advised that he was waiving his right to appeal his sentence. And at his sentencing hearing, Trusty was advised that he had the right to appeal his sentence. Tr. p. 49. Under these

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2982 | July 9, 2020 Page 4 of 11 I. Mitigating Circumstances

[9] Trusty argues that the trial court abused its discretion by failing to consider his

proffered mitigating circumstances. In its sentencing order, “the trial court must

enter a statement including reasonably detailed reasons or circumstances for

imposing a particular sentence.” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.

2007), modified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2007). We review

the sentence for an abuse of discretion. Id. at 490. An abuse of discretion occurs

if “the decision is clearly against the logic and effect of the facts and

circumstances[.]” Id. A trial court abuses its discretion if it (1) fails “to enter a

sentencing statement at all[,]” (2) enters “a sentencing statement that explains

reasons for imposing a sentence—including a finding of aggravating and

mitigating factors if any—but the record does not support the reasons,” (3)

enters a sentencing statement that “omits reasons that are clearly supported by

the record and advanced for consideration,” or (4) considers reasons that “are

improper as a matter of law.” Id. at 490–91. However, the relative weight or

value assignable to reasons properly found, or to those which should have been

found, is not subject to review for abuse of discretion. Id. at 491.

[10] The advisory sentence is the starting point our legislature has selected as an

appropriate sentence for the crime committed. Gomillia v. State, 13 N.E.3d 846,

852 (Ind. 2014). A trial judge may impose any sentence within the statutory

circumstances, Trusty did not knowingly and voluntarily waive his right to appeal his sentence. See Johnson v. State, 145 N.E.3d 785, 787 (Ind. 2020).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2982 | July 9, 2020 Page 5 of 11 range without regard to the existence of aggravating or mitigating factors. Id.

However, if the trial court finds the existence of aggravating or mitigating

circumstances, then the court is required to give “a statement of the court’s

reasons for selecting the sentence that it imposes.” Id. (quoting Ind. Code § 35-

38-1-3).

[11] Here, the trial court acted within its discretion when it declined to find

aggravating and mitigating circumstances and imposed the advisory sentence.

Nevertheless, we will briefly address Trusty’s claim that the trial court abused

its discretion by failing to consider the following proffered mitigating

circumstances: 1) that Trusty is likely to respond affirmatively to probation or

short-term imprisonment, and 2) that Trusty suffers from post-traumatic stress

disorder (“PTSD”). “An allegation that the trial court failed to identify or find a

mitigating factor requires the defendant to establish that the mitigating evidence

is both significant and clearly supported by the record.” Anglemyer, 868 N.E.2d

at 493.

[12] Under the circumstances of this case, we cannot conclude that the trial court

failed to consider that Trusty is likely to respond affirmatively to short-term

imprisonment or probation. The executed portion of Trusty’s sentence is two

years, which is one year less than the advisory sentence and a relatively short

term of imprisonment. The court considered Trusty for an alternative

placement, but Trusty did not qualify because he is not an Indiana resident.

And the court stated that it would consider a modification to Trusty’s sentence

if he successfully completed “the clinically appropriate substance abuse

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2982 | July 9, 2020 Page 6 of 11 treatment program as determined by” the Department of Correction.

Appellant’s App. p. 120.

[13] Next, Trusty argues that the trial court abused its discretion when failed to find

that he suffers from PTSD as a mitigating circumstance. But Trusty did not ask

the trial court to find this mitigator, and therefore, the trial court did not abuse

its discretion by failing to consider it. See Anglemyer, 868 N.E.2d at 492; Koch v.

State, 952 N.E.2d 359, 375 (Ind. Ct. App. 2011), trans. denied. Moreover, this

alleged mitigating circumstance is not clearly supported by the record. Trusty

has never been diagnosed with PTSD and has never received treatment for it.

He merely speculated that he suffers from PTSD.

[14] For all of these reasons, we conclude that the trial court did not abuse its

discretion when it sentenced Trusty.

II. Inappropriate Sentence

[15] Trusty also argues that his aggregate three-year sentence, with two years

executed in the Department of Correction and one year suspended to probation,

is inappropriate in light of the nature of the offense and the character of the

offender. Pursuant to Indiana Appellate Rule 7(B), “[t]he 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.” We must exercise deference to

a trial court’s sentencing decision because Rule 7(B) requires us to give due

consideration to that decision, and we understand and recognize the unique

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2982 | July 9, 2020 Page 7 of 11 perspective a trial court brings to its sentencing decisions. Rose v. State, 36

N.E.3d 1055, 1063 (Ind. Ct. App. 2015). “Such deference should prevail unless

overcome by compelling evidence portraying in a positive light the nature of the

offense (such as accompanied by restraint, regard, and lack of brutality) and the

defendant’s character (such as substantial virtuous traits or persistent examples

of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[16] The determination of whether we regard a sentence as inappropriate “turns on

our sense of the culpability of the defendant, the severity of the crime, the

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

case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell v.

State, 895 N.E.2d 1219, 1224 (Ind. 2008)). The appropriate question is not

whether another sentence is more appropriate, but whether the sentence

imposed is inappropriate. Rose, 36 N.E.3d at 1063.

[17] Although we have the power to review and revise sentences, the principal role

of appellate 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, 895 N.E.2d at 1225. Our review under Rule 7(B) 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. And it is the defendant’s burden on appeal to persuade us that the

sentence imposed by the trial court is inappropriate. Childress v. State, 848

N.E.2d 1073, 1080 (Ind. 2006).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2982 | July 9, 2020 Page 8 of 11 [18] A person convicted of a Level 5 felony “shall be imprisoned for a fixed term of

between one (1) and six (6) years, with the advisory sentence being three (3)

years.” Ind. Code § 35-50-2-6. For his three Level 5 felony convictions, Trusty

was ordered to serve concurrent terms of the advisory three-year sentence. The

trial court ordered him to serve two years executed and suspended one year to

probation.3 To determine whether Trusty’s sentence is inappropriate, we

consider all aspects of the penal consequences imposed by the trial court in

sentencing the defendant, including whether a portion of the sentence is ordered

suspended “or otherwise crafted using any of the variety of sentencing tools

available to the trial judge.” Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.

2010).

[19] Trusty argues that his sentence is inappropriate because his offenses were non-

violent, he is sober and willing to treat his substance abuse issues, and he took

responsibility for his offenses by pleading guilty. Trusty also claims his sentence

is inappropriate because he is well-educated and served fourteen years in the

Navy.

[20] Trusty had five illegal substances in his possession when he was arrested:

cocaine, methamphetamine, Carisoprodol, Hydrocodone, and Gabapentin. He

also had a loaded handgun in his vehicle and admitted to law enforcement

3 Trusty was also ordered to serve one year suspended to supervised probation for his Level 6 felony conviction to be served concurrent to the sentences imposed for his Level 5 felony convictions. The advisory sentence for a Level 6 felony conviction is one year. See Ind. Code § 35-50-2-7.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2982 | July 9, 2020 Page 9 of 11 officers that he was planning to sell the methamphetamine. Trusty has not met

his burden of establishing that his three-year sentence is inappropriate in light of

the nature of his offenses.

[21] Trusty has issues with substance abuse but has not taken any steps to address

his addiction. His recent sobriety is likely the result of the period of

incarceration he served in Kentucky before he was sentenced in this case. His

service in the Navy reflects positively on his character, but only minimally.

Trusty received a “bad conduct discharge” from the military after he was found

guilty of four violations of the Uniform Code of Military Justice. Appellant’s

Conf. App. p. 85. And his decision to plead guilty was likely pragmatic after his

motion to suppress the evidence found during the search of his vehicle was

denied. The State also dismissed the Level 3 felony dealing charge in exchange

for Trusty’s guilty plea.

[22] Recognizing that Trusty’s offenses were committed at least in part due to his

substance abuse issues, the trial court is allowing Trusty to serve one year of his

three-year sentence on probation. The court also stated that it will consider

modifying Trusty’s sentence if he completes an appropriate substance abuse

program. Trusty’s three-year aggregate sentence, with one year suspended to

probation, is not inappropriate in light of his character.

[23] Trusty has not met his burden of persuading us that his sentence is an outlier

that warrants revision. For all of these reasons, we conclude that Trusty’s

aggregate three-year sentence, with two years executed and one year suspended

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2982 | July 9, 2020 Page 10 of 11 to probation, is not inappropriate in light of the nature of the offenses and the

character of the offender.

Conclusion [24] The trial court did not abuse its discretion when it sentenced Trusty. And

Trusty’s aggregate three-year sentence, with two years executed and one year

suspended to probation, is not inappropriate in light of the nature of the

offenses and the character of the offender.

[25] Affirmed.

Riley, J. and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2982 | July 9, 2020 Page 11 of 11