Timmothy Flora v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 27, 2018
• Docket: 18A-CR-600
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 27 2018, 10:19 am regarded as precedent or cited before any 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 Chad A. Montgomery Curtis T. Hill, Jr. Montgomery Law Office Attorney General of Indiana Lafayette, Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Timmothy Flora, August 27, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-600 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Randy Williams, Appellee-Plaintiff. Judge Trial Court Cause No. 79D01-1711-F2-25

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-600 | August 27, 2018 Page 1 of 8 Case Summary and Issue [1] Following his guilty plea to dealing in methamphetamine, a Level 2 felony;

neglect of a dependent committed during a drug offense, a Level 5 felony;

carrying a handgun without a license, a Class A misdemeanor; and his

admission to being an habitual offender, the trial court sentenced Timmothy

Flora to an aggregate sentence of twenty-eight years with the Indiana

Department of Correction. Flora raises one issue for our review, namely

whether the trial court abused its discretion when it considered the extreme

youth of the victim of the neglect offense to be an aggravating circumstance.

Concluding that the trial court did not abuse its discretion, we affirm the trial

court’s sentencing order.

Facts and Procedural History [2] On November 15, 2017, Officer Strah of the Lafayette Police Department

initiated a traffic stop of a vehicle driven by Flora. Flora’s twenty-three-month-

old son, J.F., and J.F.’s mother were also in the car. Flora, who initially

provided an inaccurate name and several inaccurate dates of birth to Officer

Strah, eventually admitted that he was in possession of a pipe used to ingest

methamphetamine. Flora was also found to be driving on a suspended license.

[3] Officers subsequently searched Flora’s vehicle and found a Diamondback nine-

millimeter handgun, over 69 grams of methamphetamine, 58.81 grams of a

powdery substance which Flora indicated was used to adulterate the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-600 | August 27, 2018 Page 2 of 8 methamphetamine, 13.06 grams of marijuana, twelve alprazolam pills, four

Adderall pills (which contain amphetamine), eleven morphine sulfate pills, five

hydrocodone pills, an Oxycodone pill, small sized baggies, and digital scales.

Next to J.F., who was in the back seat, officers found a case holding a Tec-9

handgun and two loaded high capacity magazines as well as a backpack

containing syringes, digital scales, more small plastic baggies, and an unknown

powdery substance.

[4] The State charged Flora with a number of offenses, including dealing in

methamphetamine, a Level 2 felony; neglect of a dependent committed during

a drug offense, a Level 5 felony; and carrying a handgun without a license, a

Class A misdemeanor. The State also filed a separate information in which it

alleged that Flora was an habitual offender, having prior convictions for forgery

and dealing in marijuana. On January 23, 2018, Flora pleaded guilty to dealing

in methamphetamine, neglect of a dependent, handgun possession, and the

habitual offender enhancement pursuant to an agreement with the State

whereby the State would dismiss the other charges against Flora. The State

also agreed to recommend that Flora serve all of his sentences concurrently,

with the exception of the habitual offender enhancement.

[5] Flora’s sentencing hearing was held March 6, 2018. The trial court admitted

into evidence a laboratory report which showed that, after the offenses, J.F.

tested positive for an extraordinarily high amount of methamphetamine.

Confidential Exhibits, Volume 1, State’s Exhibit #2. Flora confirmed at the

hearing that J.F. had a life-threatening illness during the summer of 2017.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-600 | August 27, 2018 Page 3 of 8 During its sentencing statement, the trial court noted that J.F.’s repeated

exposure to methamphetamine could not have been helpful in addressing J.F.’s

pre-existing medical condition. As to J.F.’s age, the trial court found as

follows:

I think when we look to the neglect charge, the Neglect of a Dependent, when you have neglect because of where the child was at the time I think that, as charged, but given the nature of the offense that takes it up to a level 5. However here, not only is that child in this car with the number of drugs while the defendant’s being charged with dealing methamphetamine, but that child also, as has been stated twice already, when tested had an extraordinary high level of methamphetamine in his system. I think that’s it for different issues. I can use the age, the age of 2 as an aggravating factor recognizing that Count VIII was neglect of dependent, but I think the - the young age of 2 of the dependent at the time of the commission of these offenses is important.

Transcript, Volume 2 at 42-43.

[6] The trial court found Flora’s criminal history, his substance abuse history, “the

age of the victim,” and previous failed attempts at rehabilitation as aggravating

factors. Appellant’s Appendix, Volume II at 33. The trial court found as

mitigating circumstances that Flora had pleaded guilty and accepted

responsibility and that Flora had mental health issues. The trial court sentenced

Flora to twenty-two years for the dealing in methamphetamine offense, four

years for the neglect of a dependent offense, and 365 days for the possession of

a handgun offense and ordered these sentences to be served concurrently. The

trial court enhanced Flora’s sentence for dealing methamphetamine by six years

Court of Appeals of Indiana | Memorandum Decision 18A-CR-600 | August 27, 2018 Page 4 of 8 for being an habitual offender, resulting in an aggregate sentence of twenty-

eight years.

Discussion and Decision [7] Flora contends that the trial court abused its discretion when it found J.F.’s age

to be an aggravating circumstance. Specifically, Flora argues that the trial

court’s use of J.F.’s age as an aggravator was improper because it was an

element of the offense of neglect of a dependent and was insufficient to impose

an aggravated sentence in this case.

I. Standard of Review [8] After our supreme court’s decision in Anglemyer v. State, 868 N.E.2d 482, 490

(Ind. 2007), aff’d on reh’g, 875 N.E.2d 218 (Ind. 2007), we review a trial court’s

sentencing decisions only for an abuse of discretion. A trial court may only be

said to have abused its sentencing discretion by: (1) failing to enter a sentencing

statement; (2) entering a sentencing statement that includes reasons not

supported by the record; (3) entering a sentencing statement that omits reasons

clearly supported by the record and advanced for consideration; or (4) entering

a sentencing statement that includes reasons which are improper as a matter of

law. Id. at 490-91. An abuse of discretion occurs where “the decision is clearly

against the logic and effect of the facts and the circumstances before the trial

court, or the reasonable, probable, and actual deductions to be drawn

therefrom.” Phelps v. State, 914 N.E.2d 283, 290 (Ind. Ct. App. 2009).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-600 | August 27, 2018 Page 5 of 8 II. Age as Aggravator [9] Flora pleaded guilty to neglect of a dependent as a Level 5 felony. One of the

elements of the offense is that the victim is a dependent. Ind. Code § 35-46-1-

4(a)(1). A “dependent” is defined in relevant part as “an unemancipated person

who is under eighteen (18) years of age[.]” Ind. Code § 35-46-1-1(1). As a

general rule, it is proper for a trial court to consider the particularized nature

and circumstances of a crime as an aggravating factor. Miller v. State, 720

N.E.2d 696, 706 (Ind. 1999). As this concept relates to the sentencing for the

offense of neglect of a dependent, this court has held that “[w]hile the victim’s

age may not constitute an aggravating circumstance to support an enhanced

sentence when it also comprises a material element of the crime for which

conviction was obtained, the trial court may properly consider particularized

circumstances of the factual elements as aggravating factors.” Mallory v. State,

563 N.E.2d 640, 647 (Ind. Ct. App. 1990) (upholding the trial court’s

reasonable consideration that neglect of an extremely young child is worse that

the same neglect directed towards an older dependent), trans. denied.

[10] Here, the trial court found that “the young age of 2 of the dependent at the time

of the commission of these offenses is important.” Tr., Vol. 2 at 43. While

initially arguing that the trial court’s use of J.F.’s age was improper as a matter

of law, Flora does recognize the principle that a trial court may use the

particularized factual circumstances of a case as an aggravating circumstance.

Appellant’s Brief at 18. Nevertheless, he contends that the trial court’s finding

is insufficient to impose an aggravated sentence under the facts of this case

Court of Appeals of Indiana | Memorandum Decision 18A-CR-600 | August 27, 2018 Page 6 of 8 because J.F.’s extreme youth made him less physically capable of accessing the

gun and drugs found near him. However, it was within the trial court’s

discretion to conclude that placing a two-year-old, who is entirely dependent on

his caretakers and incapable of fleeing or seeking assistance, in an environment

of drugs and guns is worse than placing an older child in the same environment.

Such consideration was certainly borne out in this case where J.F., a toddler

who had recently been gravely ill, tested positive for high levels of

methamphetamine after being in Flora’s care.

[11] However, even if the trial court had abused its discretion in considering J.F.’s

age, it would not be fatal to the sentence imposed in this case. Even “[a] single

aggravating circumstance is enough to justify an enhancement or the imposition

of consecutive sentences.” Williams v. State, 690 N.E.2d 162, 172 (Ind. 1997).

The trial court found three additional aggravating circumstances, namely

Flora’s criminal history, his substance abuse history, and his previous failed

attempts at rehabilitation. Flora does not challenge the propriety any of these

other aggravating circumstances on appeal. Finding no reversible error, we

leave the trial court’s sentencing order intact.

Conclusion [12] Concluding that the trial court acted within its discretion in considering J.F.’s

extreme youth as an aggravating circumstance in this case, we affirm.

[13] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-600 | August 27, 2018 Page 7 of 8 Baker, J., and May, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-600 | August 27, 2018 Page 8 of 8