Tristan Pinkston v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 30, 2020
• Docket: 20A-CR-982
• 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 Sep 30 2020, 8:23 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 Chad A. Montgomery Curtis T. Hill, Jr. Montgomery Law Office Attorney General Lafayette, Indiana Benjamin J. Shoptaw Deputy Attorney General

Samuel J. Sendrow Certified Legal Intern Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Tristan Pinkston, September 30, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-982 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Randy J. Williams, Appellee-Plaintiff Judge

Trial Court Cause No. 79D01-1908-F4-37

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-982| September 30, 2020 Page 1 of 5 Case Summary [1] Tristan Pinkston pled guilty to level 4 felony dealing in methamphetamine and

was sentenced to seven years, with four years executed in the Indiana

Department of Correction (DOC), one year executed in community

corrections, and two years suspended to probation. On appeal, Pinkston argues

that his DOC placement is inappropriate in light of the nature of his offense and

his character. We affirm.

Facts and Procedural History [2] According to the probable cause affidavit, which both parties have relied on in

their briefs, on August 22, 2019, Tippecanoe County Police Department officers

were dispatched to a home on a report of suspicious activity. A moped was

parked in front of the home. The officers determined that the moped’s

registered owner was Pinkston, who was wanted on an outstanding warrant.

The officers knocked on the door, and a woman answered. The officers saw

Pinkston inside and asked him to come outside, which he did. They arrested

him pursuant to the warrant, and he admitted that he had methamphetamine in

his pants pocket. The officers found a plastic baggie with 3.6 grams of

methamphetamine and a pipe used to consume controlled substances in

Pinkston’s pocket. Pinkston told the officers that he had come to the home to

pick up methamphetamine to sell.

[3] The State charged Pinkston with level 4 felony dealing in methamphetamine,

level 6 felony possession of methamphetamine, and class C misdemeanor

Court of Appeals of Indiana | Memorandum Decision 20A-CR-982| September 30, 2020 Page 2 of 5 possession of paraphernalia. In February 2020, Pinkston signed a plea

agreement, pursuant to which he agreed to plead guilty to the level 4 felony

charge in exchange for the dismissal of the remaining charges. The agreement

provided for an executed sentence of no less than four years, which could be

served in either the DOC or community corrections. The agreement further

provided that any sentence between four and seven years could be served in the

DOC or community corrections or on probation, and that any sentence above

seven years would be served on probation. In April 2020, the trial court

accepted Pinkston’s plea and sentenced him to seven years, with four years

executed in the DOC, one year executed in community corrections, and two

years suspended to probation. Pinkston now appeals his sentence.

Discussion and Decision [4] Pinkston does not challenge the length of his sentence, but he does assert that

the trial court should have ordered him to serve the entire executed portion of

his sentence in community corrections. Article 7, Section 6 of the Indiana

Constitution authorizes this Court to conduct independent appellate review and

revision of sentences pursuant to Indiana Appellate Rule 7(B), which provides

that we “may revise a sentence authorized by statute if, after due consideration

of the trial court’s decision, [we find] that the sentence is inappropriate in light

Court of Appeals of Indiana | Memorandum Decision 20A-CR-982| September 30, 2020 Page 3 of 5 of the nature of the offense and the character of the offender.” 1 “The location

where a sentence is to be served is an appropriate focus for application of our

review and revise authority.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App.

2008). “[I]t will be quite difficult for a defendant to prevail on a claim that the

placement of his sentence is inappropriate. This is because the question under

Appellate Rule 7(B) is not whether another sentence is more appropriate; rather,

the question is whether the sentence imposed is inappropriate.” Id. at 267-68

(citation omitted). “A defendant challenging the placement of a sentence must

convince us that the given placement is itself inappropriate.” Id. at 268.

[5] Our supreme court has explained,

“[S]entencing is principally a discretionary function in which the trial court’s judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). 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).

1 Citing McMahon v. State, 856 N.E.2d 743 (Ind. Ct. App. 2006), Pinkston asserts that we “must merge the trial court’s finding of aggravators and mitigators under Ind. Code § 35-38-1-7.1 into the review for inappropriateness under Ind. App. Rule 7(B).” Appellant’s Br. at 10. We disagree, for the reasons given in Turkette v. State, No. 20A-CR-87, 2020 WL 4198371, at *4 n.5 (Ind. Ct. App. July 22, 2020), pet. for trans. filed (Sept. 8, 2020).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-982| September 30, 2020 Page 4 of 5 [6] We agree with Pinkston that the nature of his offense was not especially

egregious, in that he was cooperative during his encounter with the police and

possessed a relatively modest amount of methamphetamine. See Ind. Code §

35-48-4-1.1(c) (dealing in methamphetamine is a level 4 felony if defendant

possesses with intent to deliver at least one but less than five grams of drug).

But Pinkston’s character leaves a lot to be desired: he was wanted on an

outstanding warrant when he was found with methamphetamine in his pocket;

at age twenty-eight, he has accumulated six misdemeanor convictions and

failed to appear in three of those proceedings; four of the convictions are for

operating a motor vehicle without ever receiving a license, which, as the trial

court noted, demonstrates “disdain for the law,” Tr. Vol. 2 at 37; he was found

to have violated probation, apparently by committing the current offense; he

has a lengthy history of using and abusing substances, including alcohol and

illegal drugs; and he has participated in substance-related programs and classes,

which obviously had no lasting effect. Given all this, we cannot say that

Pinkston has convinced us that his DOC placement is inappropriate.

Therefore, we affirm.

[7] Affirmed.

Robb, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-982| September 30, 2020 Page 5 of 5