Ted E. Geisleman v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 29, 2020
• Docket: 20A-CR-4
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any May 29 2020, 10:51 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 ATTORNEY FOR APPELLEE Donald C. Swanson Matthew B. MacKenzie Haller & Colvin, P.C. Deputy Attorney General Fort Wayne, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ted E. Geisleman, May 29, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-4 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge Trial Court Cause No. 02D05-1712-F3-77

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-4 | May 29, 2020 Page 1 of 9 STATEMENT OF THE CASE [1] Appellant-Defendant, Ted E. Geisleman (Geisleman), appeals the trial court’s

sentence following his guilty plea to dealing in cocaine, a Level 3 felony, Ind.

Code § 35-48-4-1(a)(2); three Counts of dealing in cocaine, Level 4 felonies, I.C.

§ 35-48-4-1(a)(1); dealing in a narcotic drug, a Level 5 felony, I.C. § 35-48-4-

1(a)(1); operating a motor vehicle after a lifetime suspension, a Level 5 felony,

I.C. § 9-30-10-17(a)(1); maintaining a common nuisance, a Level 6 felony, I.C.

§ 35-48-1-5(c); possession of marijuana, a Class B misdemeanor, I.C. § 35-48-4-

11(a)(1); and possession of paraphernalia, a Class C misdemeanor, I.C. § 35-48-

8.3(b)(1).

[2] We affirm.

ISSUES [3] Geisleman presents two issues on appeal, which we restate as:

(1) Whether the trial court abused its discretion by failing to properly

recognize certain mitigating circumstances; and

(2) Whether Geisleman’s sentence is inappropriate in light of his character

and the nature of the offenses.

FACTS AND PROCEDURAL HISTORY [4] During November and December 2017, Geisleman sold drugs on six different

occasions to a confidential informant. On December 28, 2017, as a result of

these undercover buys, the State filed an Information, charging Geisleman with

Court of Appeals of Indiana | Memorandum Decision 20A-CR-4 | May 29, 2020 Page 2 of 9 a Level 3 felony dealing in cocaine; three Level 4 felonies dealing in cocaine; a

Level 5 felony dealing in a narcotic drug; a Level 5 felony operating a motor

vehicle after a lifetime suspension, a Level 6 felony maintaining a common

nuisance, a Class B misdemeanor possession of marijuana; and a Class C

misdemeanor possession of paraphernalia. On February 18, 2018, Geisleman

entered a plea agreement to all Counts, which provided him with an

opportunity to participate in a Drug Court diversion program.

[5] On September 23, 2019, the trial court terminated Geisleman from the

diversion program. On December 5, 2019, the trial court conducted a

sentencing hearing. During the hearing, Geisleman noted that he had made it

to the third phase of the program before “he completely fell apart and these new

offenses he had over in circuit court happened,” and that he did not “have a

whole lot to add other than” briefly referring, without identifying or explaining,

the application of certain mitigating factors that he had listed in two written

sentencing memoranda submitted to the trial court. (Transcript pp. 4-5). In its

review, the trial court identified two mitigating factors: (1) Geisleman’s guilty

plea, and (2) his expressed remorse. Contrary to his claim that he did not harm

the community, the trial court noted that he was selling drugs and therefore was

“poisoning members of our community.” (Tr. p. 7). The court further

observed Geisleman’s lengthy criminal history and the likelihood that he would

not respond positively to probation. Given that he was charged with a new

offense, the trial court stated that Geisleman’s attitude and character reveal that

he is likely to commit another crime. The trial court found as additional

Court of Appeals of Indiana | Memorandum Decision 20A-CR-4 | May 29, 2020 Page 3 of 9 aggravating factors: (1) prior failed efforts at rehabilitation, and (2) the nature

and circumstances of the crimes. At the conclusion of the hearing, the trial

court imposed twelve years on the Level 3 felony; ten years each on the Level 4

felonies; five years each on the Level 5 and Level 6 felonies;180 days on the

Class B misdemeanor, and sixty days on the Class C misdemeanor, for a total

term of 57 years and 240 days. All Counts were ordered to be served

concurrently, resulting in a twelve-year sentence at the Department of

Correction.

[6] Geisleman now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION I. Mitigating Circumstances

[7] Geisleman contends that the trial court abused its discretion when it failed to

identify certain mitigating factors. So long as a sentence imposed by a trial

court is within the statutory range for the offense, it is subject to review only for

an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),

clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of the trial court’s

sentencing discretion occurs if its decision is clearly against the logic and effect

of the facts and circumstances before the court, or the reasonable, probable, and

actual deductions to be drawn therefrom. Id. A trial court abuses its discretion

when it fails to enter a sentencing statement at all, its stated reasons for

imposing sentence are not supported by the record, its sentencing statement

omits reasons that are clearly supported by the record and advanced for

Court of Appeals of Indiana | Memorandum Decision 20A-CR-4 | May 29, 2020 Page 4 of 9 consideration, or its reasons for imposing sentence are improper as a matter of

law. Id. at 490-91.

[8] Geisleman now contends that the trial court abused its discretion when it failed

to properly recognize the mitigating circumstances proposed in the two written

sentencing memoranda he had submitted to the trial court prior to the

sentencing hearing. We remind Geisleman that “[i]t is the appellant’s duty to

provide the reviewing court with an adequate record for review.” Johnson v.

State, 747 N.E.2d 623, 627 (Ind. Ct. App. 2001). As such, Indiana Appellate

Rule 50(B)(1) provides that the appellant’s appendix “shall contain a table of

contents and copies of the following documents, if they exist: . . . (e) any record

material relied on in the brief unless the material is already included in the

transcript[.]” Geisleman did not include the two sentencing memoranda in his

appellate appendix.

[9] As Geisleman did not advance the mitigating factors for consideration on the

record but merely requested the trial court to consider the two memoranda that

had been filed, these documents are necessary for this court to evaluate

Geisleman’s claim. The record indicates that on February 17, 2020, the State

filed a motion for conforming appendix, informing this court that Geisleman’s

appendix did not include the two sentencing memoranda. Geisleman objected

to the State’s motion, asserting that he was only required to provide appendices

containing information from the record on appeal that are “necessary and

relevant to the issues on appeal,” and that he raised only two issues, “none of

which have to do with evidence presented at the hearing.” (Def. motion Feb.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-4 | May 29, 2020 Page 5 of 9 28, 2020). In response to the parties’ motions, we observed in our March 4,

2020 order, that “an Appellant who fails to include the materials necessary for

this [c]ourt’s review risks waiver of the affected issues or dismissal of the

appeal.” (Crt. Order March 4, 2020). Accordingly, as a result of failing to

provide the only portion of the record enumerating Geisleman’s proposed

mitigating circumstances, we are unable to consider his claim and we conclude

that he has waived appellate review. See, e.g., Nasser v. State, 727 N.E.2d 1105,

1110 (Ind. Ct. App. 2000) (finding that appellant waived sentencing argument

because he failed to include the pre-sentence report in the record).

II. Inappropriateness of Sentence

[10] Geisleman also requests that we independently review the appropriateness of

his sentence. “Even when a trial court imposes a sentence within its discretion,

the Indiana Constitution authorizes independent appellate review and revision

of this sentencing decision.” Hoak v. State, 113 N.E.3d 1209, 1209 (Ind. 2019).

Thus, we may alter a sentence 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. Id. The principal role of such review

is to attempt to leaven the outliers. Cardwell v. State, 895 N.E.2d 1219, 1225

(Ind. 2008). The defendant bears the burden to persuade the reviewing court

that the sentence imposed is inappropriate. Robinson v. State, 91 N.E.3d 574,

577 (Ind. 2018).

[11] In considering the appropriateness of a sentence, we recognize the advisory

sentence is the starting point the Legislature selected as appropriate for the

Court of Appeals of Indiana | Memorandum Decision 20A-CR-4 | May 29, 2020 Page 6 of 9 crime committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). Geisleman

was sentenced to a total term of 57 years and 240 days. This aggregate term is

composed of a bevy of concurrent sentences, not one of which was a maximum

sentence for its particular Level of offense. Specifically, the trial court ordered

all Counts to be served concurrently, resulting in a twelve-year sentence at the

Department of Correction. Geisleman now requests this court to decrease his

sentence to the minimum aggregate sentence of three years. We decline to do

so.

[12] With respect to the nature of the crimes, we do not turn a blind eye to “facts of

the incident that brought the defendant before” us or the “nature and

circumstances of the crime as well as the manner in which the crime is

committed.” Bethea v. State, 893 N.E.2d 1134, 1145 (Ind. 2013). Geisleman

flooded the community with illegal drugs and sold narcotics to a confidential

information for a profit on at least six different occasions. See Evans v. State, 725

N.E. 2d 850, 851 (Ind. 2000) (holding that purveyors of illegal drugs are “a

menace to society,” and as such acknowledged by the legislature by classifying

those offenses as serious felonies).

[13] Likewise, Geisleman’s character does not warrant a downward revision of his

sentence. A defendant’s willingness to continue committing crimes is relevant

for analysis of his character under Appellate Rule 7(B). Garcia v. State, 47 N.E.

3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied. Geisleman has a significant

criminal history spanning almost three decades, from 1990 to 2019, and

involving juvenile, misdemeanor, and felony offenses. His juvenile history

Court of Appeals of Indiana | Memorandum Decision 20A-CR-4 | May 29, 2020 Page 7 of 9 included adjudications for, among others, possession of paraphernalia and

possession of marijuana; while his adult history includes charges for, among

others, burglary, battery, resisting law enforcement, and being a habitual traffic

violator. As the trial court noted during sentencing:

[Geisleman] had three adjudications as a juvenile with time in the Wood Youth Center. [He] has been given short jail sentences, intermediate jail sentences, and longer jail sentences. [He] has been assessed fines and costs. [He] has been through the Center for Non-Violence. [He] had time in the Department of Correction. [He] has been on active adult probation. [He] had home detention. [He] had the benefit of suspended sentences, time through the Alcohol Abuse Deterrent Program. [He] has been on parole. [He] has been through Criminal Division Services. [He] had multiple attempts at substance abuse treatment through the system, and ultimately, the Drug Court Program.

(Tr. p. 8). He repeatedly failed to take advantage of rehabilitative programs,

and he did not respond positively to probation. While participating in the Drug

Court program, Geisleman committed a new offense. Geisleman has not

shown that his character, as evidenced by his criminal history and probation

violations, warrants the minimum sentence that he requested. Therefore, in

light of the facts before us, we conclude that trial court’s imposed sentence is

not inappropriate.

CONCLUSIONS [14] Based on the foregoing, we hold that Geisleman’s sentence is not inappropriate

in light of the offense and his character.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-4 | May 29, 2020 Page 8 of 9 [15] Affirmed.

[16] Mathias, J. and Tavitas, J. concur

Court of Appeals of Indiana | Memorandum Decision 20A-CR-4 | May 29, 2020 Page 9 of 9