Opinion
24A-CR-36
06-13-2024
Andrew C. Abbott, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Alexandria Sons Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Henry Circuit Court The Honorable Bob A. Witham, Judge Trial Court Cause Nos. 33C01-2102-F5-13 33C01-2309-F5-88
ATTORNEY FOR APPELLANT Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Alexandria Sons Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Tavitas, Judge.
Case Summary
[¶1] Andrew Abbott was sentenced to ten and one-half years for his convictions in two cases. In one case, Abbott pleaded guilty to possession of methamphetamine, a Level 6 felony, and admitted to being an habitual offender. In the other case, Abbott pleaded guilty to possession of methamphetamine, a Level 5 felony, and resisting law enforcement, a Level 6 felony. Abbott argues that his sentence is inappropriate. We disagree and, accordingly, affirm.
Issue
[¶2] Abbott raises one issue, which we restate as whether Abbott's sentence is inappropriate in light of the nature of his offense and his character.
Facts
[¶3] On February 10, 2021, Abbott was driving his vehicle and was stopped by an officer with the New Castle Police Department for various traffic violations. During the stop, Abbott admitted to the officer that he had a syringe when asked if he had anything sharp on his person. The officer found the following in Abbott's fanny pack: a used hypodermic needle; small bags with a white crystal substance within them; loose pieces of medium-sized crystal substance; and a large amount of small plastic bags. The crystal substance was later identified as methamphetamine.
[¶4] In Cause Number 33C01-2102-F5-13 ("Cause No. F5-13"), the State charged Abbott with dealing in methamphetamine, a Level 5 felony, and unlawful possession of syringe, a Level 6 felony. The State also alleged that Abbott was an habitual offender. In June 2022, Abbott pleaded guilty to possession of methamphetamine, a Level 6 felony, as a lesser included offense of the original charge, and admitted to being an habitual offender. The trial court took the "plea agreement under advisement, pending House of Hope placement." Appellant's App. Vol. II p. 86. Abbott entered House of Hope ("HOH"), but due to Abbott's "strange behaviors," Abbott was required to take a drug test, and he tested positive for three separate substances. Id. at 91. Abbott was discharged from HOH on November 21, 2022.
House Of Hope is a halfway house program or transitional residential facility for adult males addicted to alcohol and/or drugs. See https://andhouseofhope.org/description [https://perma.cc/DR7U-B9MJ].
[¶5] As a result, Abbott was sent to the Henry County Jail, and in February 2023, he was readmitted to HOH. In August 2023, Abbott relapsed again and tested positive for methamphetamine. Abbott left HOH, and the trial court issued a warrant for his arrest.
[¶6] In September 2023, a New Castle police officer spotted Abbott's vehicle and tried to initiate a traffic stop, but Abbott drove away at speeds of up to 100 miles per hour. Eventually, Abbott crashed his vehicle and was arrested. The police officer found a syringe, a prescription-only narcotic, and methamphetamine in the vehicle.
[¶7] In Cause Number 33C01-2309-F5-88 ("Cause F5-88"), the State charged Abbott with possession of methamphetamine, a Level 5 felony; resisting law enforcement, a Level 6 felony; unlawful possession of a legend drug, a Level 6 felony; unlawful possession of a syringe, a Level 6 felony; and reckless driving, a Class C misdemeanor. In October 2023, Abbott pleaded guilty to possession of methamphetamine, a Level 5 felony, and resisting law enforcement, a Level 6 felony; the State dismissed the remaining charges. Abbott agreed that the sentences for possession of methamphetamine and resisting law enforcement would be served concurrently, and that the sentence in Cause F5-88 would be served consecutive to the sentence in Cause F5-13.
[¶8] At the sentencing hearing for both causes in December 2023, the trial court found the following aggravating factors: (1) Abbott violated a condition of probation, parole, or pardon; (2) Abbott has a history of criminal or delinquent activity; (3) Abbott was arrested again after leaving treatment at HOH; and (4) Abbott scored high on the Indiana Risk Assessment System ("IRAS"). The trial court found Abbott's acceptance of responsibility as a mitigating factor.
[¶9] In Cause No. F5-13, the trial court sentenced Abbott to two years in the Department of Correction ("DOC"), enhanced by four years for Abbott's status as a habitual offender. In Cause No. F5-88, the trial court sentenced Abbott to four and one-half years for possession of methamphetamine and two years for resisting law enforcement. The sentences in that cause were ordered to be served concurrently for a total sentence of four and one-half years in the DOC. The trial court also ordered that the sentence in Cause No. F5-88 be served consecutively to the sentence in Cause No. F5-13, for an aggregate sentence of ten and one-half years in the DOC. Abbott now appeals.
Discussion and Decision
[¶10] Abbot argues that his ten and one-half year sentence is inappropriate. The Indiana Constitution authorizes independent appellate review and revision of sentences imposed by a trial court. Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (citing Ind. Const. art. 7, §§ 4, 6). This authority, as implemented through Appellate Rule 7(B) enables this Court to "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." Deference to the trial court's sentence should prevail unless "overcome by compelling evidence portraying in a positive light the nature of the offense and the defendant's character." Oberhansley v. State, 208 N.E.3d 1261, 1267 (Ind. 2023) (internal quotations omitted). A defendant, however, need not show that both the nature of the offense and his or her character warrant revision; rather, "a strong showing on one prong" may "outweigh a weak showing" on the other prong. Lane, 232 N.E.3d at 127.
[¶11] Additionally, in determining whether a sentence is inappropriate, we are not limited to the aggravating and mitigating circumstances found by the trial court. Oberhansley, 208 N.E.3d at 1271. Our role is primarily to "leaven the outliers and identify guiding principles for sentencers, rather than to achieve the perceived correct result in each case." Lane, 232 N.E.3d at 122 (internal quotations omitted). "Ultimately, we rely on our collective judgment as to the balance of all the relevant considerations involved, which include 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." Id. (internal quotations omitted).
[¶12] When determining whether a sentence is inappropriate, the advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed. Fullerv. State, 9 N.E.3d 653, 657 (Ind. 2014). In Cause No. F5-13, Abbott was convicted of possession of methamphetamine, a Level 6 felony, and he was sentenced to two years. Indiana Code Section 35-50-2-7(b) provides that a person who is convicted of a Level 6 felony may be sentenced to six months to two and one-half years of imprisonment with an advisory sentence of one year. Abbott also admitted to being an habitual offender. Sentencing of an habitual offender is governed by Indiana Code Section 35-50-2-8(i), which provides that a court will enhance the sentence by three to six years for a person who was convicted of a Level 5 or Level 6 felony. Here, the trial court enhanced Abbott's sentence by four years based upon Abbott's status as an habitual offender.
[¶13] In Cause No. F5-88, Abbott was convicted of possession of methamphetamine, a Level 5 felony, and was sentenced to four and one-half years. Indiana Code Section 35-50-2-6(b) provides that a person who is convicted of a Level 5 felony "shall be imprisoned for a fixed term of between one (1) and six (6) years, with the advisory sentence being three (3) years." Additionally, Abbott was convicted of resisting law enforcement, a Level 6 felony, and the trial court sentenced him to two years to be served concurrently with the possession of methamphetamine sentence. Per the plea agreement, the trial court ordered the sentence in Cause No. F5-88 to be served consecutively to the sentence in Cause No. F5-13, for an aggregate sentence of ten and one-half years.
Nature of the Offense
[¶14] Our analysis of the "nature of the offense" requires us to look at the extent, brutality, and heinousness of the offense. See Wilson v. State, 157 N.E.3d 1163, 1182 (Ind. 2020). Abbott argues that his offenses were not egregious. During a traffic stop, Abbott was found to have methamphetamine in his possession. Abbott was given many chances for rehabilitation, but he repeatedly relapsed. Later, Abbott led the police on a chase going over 100 miles per hour, and he ran multiple vehicles off the road while trying to escape. Abbott crashed his car and fled on foot; he was again arrested for possessing methamphetamine.
Character of the Offender
[¶15] Our analysis of the character of the offender involves a broad consideration of a defendant's qualities, including the defendant's age, criminal history, background, past rehabilitative efforts, and remorse. See Harris v. State, 165 N.E.3d 91, 100 (Ind. 2021); McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020). The significance of a criminal history in assessing a defendant's character and an appropriate sentence vary based on the "gravity, nature, and number of prior offenses as they relate to the current offense." McElfresh v. State, 51 N.E.3d 103, 112 (Ind. 2016). "Even a minor criminal history is a poor reflection of a defendant's character." Prince v. State, 148 N.E.3d 1171, 1174 (Ind.Ct.App. 2020).
[¶16] Abbott argues that he accepted responsibility for his actions and has struggled with a long-term addiction. Abbott has a long criminal history with multiple felony convictions, including five convictions for burglary and other convictions for escape, theft, and possession of methamphetamine. Abbott also has eleven prior misdemeanor convictions, which include criminal mischief, resisting law enforcement, minor consuming alcohol, criminal trespass, visiting a common nuisance, possession of marijuana, and possession of a controlled substance. The trial court gave Abbott two chances to address his substance abuse issues at HOH, but Abbott relapsed both times. Abbott's lengthy criminal history and failure to commit to rehabilitation opportunities reflect poorly on his character.
[¶17] Given Abbott's substantial criminal history and failure to take advantage of the rehabilitation chances Abbott was given, we cannot say that the sentence of ten and one-half years is inappropriate in light of the nature of Abbott's offenses and Abbott's character.
Conclusion
[¶18] Abbott's sentence was not inappropriate in light of the nature of his offenses and his character. Accordingly, we affirm.
[¶19] Affirmed.
Mathias, J., and Weissmann, J., concur.