Tony R. Brockway v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 5, 2016
• Docket: 02A04-1512-CR-2244
• Status: Published

Opinion

MEMORANDUM DECISION FILED Aug 05 2016, 7:53 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court

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 Stanley L. Campbell Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Tony R. Brockway, August 5, 2016 Appellant-Defendant, Court of Appeals Case No. 02A04-1512-CR-2244 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff Judge Trial Court Cause No. 02D05-1504-F6-302

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A04-1512-CR-2244 | August 5, 2016 Page 1 of 5 [1] Tony Brockway appeals the sentence he received for Level 6 Felony Possession

of a Synthetic Drug.1 He asks us to revise his sentence. Finding his sentence

not inappropriate, we affirm.

Facts [2] On April 6, 2015, a Fort Wayne police officer recognized Brockway, and knew

that he had an active warrant for a probation violation. The officer arrested

him, and, in a search incident to that arrest, found a baggie containing 3.5

grams of “Spice,” a synthetic drug. Brockway had a previous conviction for

possession of a synthetic drug in October 2014.

[3] On April 10, 2015, the State charged Brockway with possession of a synthetic

drug, which becomes a Level 6 felony if the defendant has a prior conviction for

the same offense. I.C. § 35-48-4-11.5(c). On April 27, 2015, Brockway was

accepted into the drug court program, after the trial court preliminarily entered

a guilty plea.

[4] Brockway began residing at the Freedom House on May 25, 2015, but was

unsuccessfully discharged one month later because he continued to do drugs

and failed to return to the facility. Brockway was then taken to the Potter’s

House rehabilitation facility on July 30, 2015, but left that facility and failed to

return by September 26, 2015. Brockway also failed to show up to a

1 Ind. Code § 35-48-4-11.5.

Court of Appeals of Indiana | Memorandum Decision 02A04-1512-CR-2244 | August 5, 2016 Page 2 of 5 compliance hearing on September 28, 2015. As a result, the trial court issued a

bench warrant for his arrest, revoked his drug court agreement, and scheduled

the case for the entry of a conviction and sentencing.

[5] The pre-sentence investigation report (PSI) used by the trial court detailed an

extensive criminal history, including significant involvement with illegal drugs.

At a November 17, 2015, sentencing hearing, the trial court found this history

to be an aggravating circumstance, but found Brockway’s guilty plea and

acceptance of responsibility to be mitigating circumstances. The trial court

sentenced Brockway to two years imprisonment. Brockway now appeals.

Discussion and Decision [6] Brockway has one argument on appeal, namely, that his sentence is

inappropriate. Indiana Appellate Rule 7(B) provides, “The 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.” The principal role of such

review is to attempt to leaven the outliers, but not to achieve a perceived

“correct” sentence. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).

Sentencing is principally a discretionary function in which the trial court’s

judgment should receive considerable deference. Id. at 1222. The defendant

bears the burden of showing us that his sentence is inappropriate. Kennedy v.

State, 934 N.E.2d 779, 788 (Ind. Ct. App. 2010).

Court of Appeals of Indiana | Memorandum Decision 02A04-1512-CR-2244 | August 5, 2016 Page 3 of 5 [7] We initially note that Brockway pleaded guilty to a Level 6 felony, which

carries a sentence between six months and two and one-half years, with an

advisory sentence of one year. Ind. Code § 35-50-2-7. Thus, Brockway’s

sentence is above the advisory sentence, but below the maximum sentence.

[8] Turning to the nature of Brockway’s offense, Brockway was found in

possession of 3.5 grams of a synthetic drug while he was on probation for a

prior dealing offense. The record does not reveal anything else about the

circumstances of this possession of illegal drugs, and so Brockway has not

carried his burden of showing that the nature of his offense renders his two-year

sentence inappropriate.

[9] Turning to Brockway’s character, we find a young man experiencing many

difficulties with drugs and criminality. At twenty-four years of age, Brockway

has four juvenile delinquency adjudications, three adult misdemeanor

convictions, and two felony convictions. Among these are convictions for

possessing synthetic drugs, possessing cocaine, and dealing in synthetic drugs.

The PSI report also shows his involvement with alcohol, marijuana, heroin,

opiates, and Xanax. Moreover, Brockway has been given chances to reform:

the trial court initially admitted him into the drug court program, where he had

the opportunity to receive services from two rehabilitation facilities. He failed

to attend both services to their completion. While in the program, he amassed

five positive drug screens, two missed drug screens, and two diluted drug

screens. Like the trial court, we acknowledge Brockway’s guilty plea and

Court of Appeals of Indiana | Memorandum Decision 02A04-1512-CR-2244 | August 5, 2016 Page 4 of 5 acceptance of responsibility, but these are outweighed by his history of

misdeeds. We are not persuaded to revise his sentence.

[10] In short, neither the nature of Brockway’s offense, nor his character, satisfy the

burden of showing that his sentence is an outlier. His sentence is not

inappropriate.

[11] The judgment of the trial court is affirmed.

Vaidik, C.J., and Najam, J., concur.

Court of Appeals of Indiana | Memorandum Decision 02A04-1512-CR-2244 | August 5, 2016 Page 5 of 5