Tyler Allen Whitesell v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 12, 2017
• Docket: 90A02-1612-CR-2768
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), May 12 2017, 8:13 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court 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 Jeremy K. Nix Curtis T. Hill, Jr. Matheny, Hahn, Denman & Nix, LLP Attorney General of Indiana Huntington, Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Tyler Allen Whitesell, May 12, 2017 Appellant-Defendant, Court of Appeals Case No. 90A02-1612-CR-2768 v. Appeal from the Wells Circuit Court State of Indiana, The Honorable Kenton W. Appellee-Plaintiff. Kiracofe, Judge Trial Court Cause No. 90C01-1605-F5-20 90C01-1510-F5-29

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2768 | May 12, 2017 Page 1 of 6 Case Summary [1] Tyler Allen Whitesell (“Whitesell”) appeals his aggregate six-year sentence

imposed following his pleas of guilty to Dealing in a Narcotic Drug, as a Level

5 felony,1 two counts of Dealing in a Substance Represented to be a Controlled

Substance, Level 6 felonies,2 and Theft, as a Class A misdemeanor.3 He

presents the sole issue of whether the sentence is inappropriate pursuant to

Indiana Appellate Rule 7(B). We affirm.

Facts and Procedural History [2] On October 13, 2015, Whitesell delivered acetaminophen to a confidential

informant. Whitesell represented the substance as heroin. On October 18,

2015, a confidential informant gave cash to Whitesell for a heroin purchase.

However, Whitesell kept the cash and did not deliver heroin to the confidential

informant. Whitesell was arrested and charged with criminal offenses (in Cause

No. 90C01-1510-F5-29 (“F5-29”)) because of those transactions but was

released on bond. While he was out on bond, on April 20, 2016, Whitesell

delivered heroin to a confidential informant. On May 8, 2016, Whitesell

delivered acetaminophen to a confidential informant. Again, Whitesell

represented the substance as heroin. Whitesell was again arrested and was

1 Ind. Code § 35-48-4-1. 2 I. C. § 35-48-4-4.5. 3 I. C. § 35-43-4-2.

Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2768 | May 12, 2017 Page 2 of 6 charged with additional criminal offenses (in Cause No. 90C01-1605-F5-20

(“F5-20”)).

[3] On September 28, 2016, without the benefit of a plea bargain, Whitesell pled

guilty to Dealing in a Narcotic Drug, two counts of Dealing in a Substance

Represented to be a Controlled Substance, and Theft. On November 9, 2016,

Whitesell was sentenced. In Cause No. F5-29, he received concurrent

sentences of one and one-half years for Dealing in a Substance Represented to

be a Controlled Substance and one year for Theft. The sentences were entirely

suspended to probation. In Cause No. F5-20, Whitesell received concurrent

sentences of six years for Dealing in a Narcotic Drug and one and one-half

years for Dealing in a Substance Represented to be a Controlled Substance.

Pursuant to Indiana Code Section 35-50-1-2(e),4 the sentences imposed in F5-20

were mandatory consecutive sentences to those imposed in F5-29.

Accordingly, Whitesell received an aggregate sentence of six years

imprisonment. He now appeals.

Discussion and Decision [4] Indiana Code Section 35-50-2-6 provides that a person convicted of a Level 5

felony faces a sentencing range of between one and six years, with the advisory

4 Pursuant to this statute, a sentence imposed for a crime committed while the defendant is out on bond for another offense must be consecutive to the sentence imposed for the prior offense, regardless of the timing of sentencing.

Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2768 | May 12, 2017 Page 3 of 6 sentence being three years. Indiana Code Section 35-50-2-7 provides that a

person convicted of a Level 6 felony faces a sentencing range of between six

months and two and one-half years, with the advisory sentence being one year.

Indiana Code Section 35-50-3-2 provides that a person convicted of a Class A

misdemeanor may be imprisoned for not more than one year.

[5] Under Indiana Appellate Rule 7(B), this “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.” In performing our review, we assess “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.” Cardwell v.

State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of such review is

to attempt to leaven the outliers. Id. at 1225.

[6] When considering whether a sentence is inappropriate, we need not be

“extremely” deferential to a trial court’s sentencing decision, but we accord due

consideration to that decision, recognizing the unique perspective of the trial

court. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007).

Accordingly, a defendant ‘“must persuade the appellate court that his or her

sentence has met th[e] inappropriateness standard of review.”’ Anglemyer v.

State, 868 N.E.2d 482, 494 (Ind. 2007) (quoting Childress v. State, 848 N.E.2d

1073, 1080 (Ind. 2006)). We “should focus on the forest – the aggregate

sentence – rather than the trees – consecutive or concurrent, number of counts,

or length of the sentence of any individual count.” Cardwell, 895 N.E.2d at

Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2768 | May 12, 2017 Page 4 of 6 1225. In our review, we may consider all aspects of the penal consequences

imposed by the trial court at sentencing, including whether a portion of the

sentence was suspended. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).

[7] As for the nature of the offenses, Whitesell once delivered heroin to a

confidential informant. He twice delivered acetaminophen while representing

that it was heroin. He took cash upon the promise of providing heroin; instead,

he kept the cash and did not give something of value in return. During at least

some of these offenses, Whitesell involved the mother of his children.

[8] Whitesell pled guilty, which speaks well of his character. However, Whitesell

has a significant history of delinquency and criminal offenses. Whitesell was

adjudicated delinquent in 2000. He was placed on probation for an offense that

would be Criminal Mischief if committed by an adult. Between 2002 and 2007,

Whitesell was found to have committed seven additional acts that were status

offenses or would be criminal if committed by an adult. He violated his

juvenile probation. In 2006, he was committed to the Indiana Department of

Correction. As an adult, Whitesell was convicted of Criminal Mischief,

Operating a Vehicle While Intoxicated, Illegal Possession of Alcohol, Hit and

Run, Obstruction of Justice, Battery, and Resisting Law Enforcement. He

violated the terms of his probation and home detention. He was out on bond

for offenses charged in F5-29 when he committed the offenses charged in F5-20.

[9] Having reviewed the matter, we conclude that the trial court did not impose an

inappropriate sentence under Appellate Rule 7(B), and the sentence does not

Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2768 | May 12, 2017 Page 5 of 6 warrant appellate revision. Accordingly, we decline to disturb the sentence

imposed by the trial court.

Conclusion [10] The aggregate six-year sentence is not inappropriate.

[11] Affirmed.

Vaidik, C.J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2768 | May 12, 2017 Page 6 of 6