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Atkins v. State

Court of Appeals of Indiana
Aug 28, 2023
No. 23A-CR-659 (Ind. App. Aug. 28, 2023)

Opinion

23A-CR-659

08-28-2023

Patrick L. Atkins, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.

ATTORNEY FOR APPELLANT Lisa Johnson Brownsburg, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Robert M. Yoke 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Franklin Circuit Court The Honorable J. Steven Cox, Judge Trial Court Cause No. 24C01-2202-F2-130

ATTORNEY FOR APPELLANT Lisa Johnson Brownsburg, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Robert M. Yoke Deputy Attorney General Indianapolis, Indiana

Judges Crone and Felix concur.

MEMORANDUM DECISION

Brown, Judge.

[¶1] Patrick L. Atkins appeals his sentence for dealing in methamphetamine as a level 2 felony, dealing in a narcotic drug as a level 5 felony, resisting law enforcement, obstruction of justice, and unlawful possession of a syringe as level 6 felonies, driving while suspended as a class A misdemeanor, possession of marijuana as a class B misdemeanor, and reckless driving as a class C misdemeanor, and he asserts his sentence is inappropriate. We affirm.

Facts and Procedural History

[¶2] On February 26, 2022, Franklin County Sheriff's Deputy Kyle Hartman noticed a leaky muffler on a vehicle driven by Atkins and activated his emergency lights and siren to initiate a traffic stop. Atkins did not pull the vehicle over immediately, drove erratically by crossing into the lane for oncoming traffic, threw flooring out of the window, and eventually stopped the vehicle to flee on foot.

Although the guilty plea transcript reveals little about the nature of the offenses, Atkins cites portions of the probable cause affidavit on appeal.

[¶3] Deputy Hartman caught and detained Atkins, stood him up, and found a small bag of "a green plant substance" underneath him. Appellant's Appendix Volume II at 23. When questioned by Deputy Hartman, Atkins stated that he fled because he believed he had a warrant for his arrest. After a search of Atkins's person, officers found four small, clear plastic bags containing "a clear and white crystalline substance." Id. Further search of Atkins yielded another small clear plastic bag containing "a white crystalline substance . . . along with two burnt marijuana cigarettes." Id. at 23-24. Deputy Hartman saw a syringe on the vehicle's passenger seat, and after searching Atkins's vehicle, he discovered heroin in a small plastic bag. Atkins admitted to possessing methamphetamine and heroin, and he stated that he had thrown an "8 Ball" of heroin out of the window as he fled. Id. at 24. In a later interview, Atkins admitted he possessed heroin and methamphetamine on his person and in his vehicle at the time of his arrest and that he was "transporting and selling methamphetamines [and] heroin ...." Id. The seized drugs amounted to one- half gram of heroin and approximately seventeen grams of methamphetamine.

[¶4] On February 28, 2022, the State charged Atkins with Count I, dealing in methamphetamine as a level 2 felony; Count II, dealing in a narcotic drug as a level 5 felony; Count III, resisting law enforcement as a level 6 felony; Count IV, obstruction of justice as a level 6 felony; Count V, unlawful possession of a syringe as a level 6 felony; Count VI, driving while suspended as a class A misdemeanor; Count VII, possession of marijuana as a class B misdemeanor; and Count VIII, reckless driving as a class C misdemeanor. On January 11, 2023, Atkins pled guilty as charged without a plea agreement.

[¶5] At the sentencing hearing, Atkins's sister testified that their home life growing up had been "difficult," they moved around a lot, "every time [they] moved, [they] had to leave [their] stuff," their mother worked a lot, and their father was "there but not there." Transcript Volume II at 59-60. Atkins's nephew testified that Atkins "made dumb decisions, and obviously, he has an addiction problem," "I do believe that he should go get help for that," and "we should not give up on that no matter how many times he has gone to get help for that." Id. at 75. Atkins testified he had been a drug addict "for about 30 years," desired to participate in a rehabilitation program, was "tired" of being a drug addict and wanted to change, and asked for the court's mercy. Id. at 76. Atkins's counsel requested that the trial court consider mitigating factors including Atkins's remorse, accepting responsibility by pleading guilty, his "growing up and background," and his willingness to accept help. Id. at 85.

[¶6] The court noted it did not "have any concern for what [Atkins] may do out and around about [in the community]," and Atkins's drug usage in the past had been "victimless, unless you count himself as a victim," but "[t]he prior record alone outweighs the mitigation that has been indicated here by leaps and bounds." Id. at 85-87. It stated that a conviction for dealing presents problems "because the person involved not only can't get control of their own behavior, but they exploit the behavior to spread that among the rest of the community," Atkins has an extensive criminal history, "[a]n extended term of probation . . . is not one of those things that makes any sense to the Court," "[n]othing that any Court . . . has done, in relation to [Atkins], has affected . . . a change in the behavior," and "when is enough enough." Id. It sentenced him to twenty-five years with five years suspended to probation on Count I; six years on Count II; thirty months on Count III; thirty months on Count IV; thirty months on Count V; one year on Count VI; 180 days on Count VII; and sixty days on Count VIII. The court ordered that all counts be served concurrently, for an aggregate sentence of twenty-five years with five years suspended to probation.

Discussion

[¶7] Atkins argues his sentence is inappropriate in light of the nature of the offenses and his character. He argues that a sentence above the advisory term is not justified because the act was "not any more egregious or damaging than other acts which fit the statutory definition," he accepted responsibility, had a childhood "fraught with neglect and dysfunction," his criminal history does not include a conviction for "an act of violence," and "[t]he offenses in this case were the result of [his] addiction to drugs." Appellant's Brief at 7, 10.

[¶8] Ind. Appellate Rule 7(B) 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 of the nature of the offense and the character of the offender." Under this rule, the burden is on the defendant to persuade the appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). "[A]ppellate review should focus on the forest-the aggregate sentence-rather than the trees-consecutive or concurrent, number of counts, or length of the sentence on any individual count." Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).

[¶9] Ind. Code § 35-50-2-4.5 provides that a person who commits a level 2 felony shall be imprisoned for a fixed term of between ten and thirty years with the advisory sentence being seventeen and one-half years. Ind. Code § 35-50-2-6 provides that a person who commits a level 5 felony shall be imprisoned for a fixed term of between one and six years, with the advisory sentence being three years. Ind. Code § 35-50-2-7 provides that a person who commits a level 6 felony shall be imprisoned for a fixed term of between six months and two and one-half years, with the advisory sentence being one year. Ind. Code § 35-50-32 provides that a person who commits a Class A misdemeanor shall be imprisoned for a fixed term of not more than one year. Ind. Code § 35-50-3-3 provides that a person who commits a Class B misdemeanor shall be imprisoned for a fixed term of not more than 180 days. Ind. Code § 35-50-34 provides that a person who commits a Class C misdemeanor shall be imprisoned for a fixed term of not more than sixty days.

[¶10] Our review of the nature of the offenses reveals that Atkins possessed, with intent to deliver, methamphetamine of at least ten grams; possessed, with intent to deliver, heroin; fled in a vehicle from a visibly identified law enforcement officer after being ordered to stop; altered, damaged, or removed methamphetamine to prevent it from being produced or used as evidence in a legal proceeding; possessed a hypodermic syringe adapted for use of injecting an alleged drug or controlled substance; possessed marijuana; and operated a vehicle recklessly.

[¶11] Our review of the character of the offender reveals that Atkins pled guilty as charged without an agreement with the State. According to the presentence investigation report ("PSI"), Atkins's criminal history included convictions for nonsupport of a dependent child as a class D felony, driving while suspended as a class A misdemeanor, driving while suspended as a class A misdemeanor, and public intoxication as a class B misdemeanor in 1995; attempted purchase of cocaine in 1999; forgery with intent to defraud as a level 6 felony in 2000; grand theft and uttering a forged instrument in 2001; nonsupport of a dependent child as a class C felony, resisting law enforcement as a class D felony, possession of marijuana/hash oil/hashish and the failure to destroy growing plants as a class A misdemeanor, and driving while suspended as a class A misdemeanor in 2006; criminal trespass as a class A misdemeanor in 2010; "possessing two or more chemical reagents/precursors w[ith] intent to manu[facture a] controlled subst[ance]" as a class D felony in 2011; driving while suspended with a knowing violation and prior conviction within ten years as a class A misdemeanor, and conspiracy to commit burglary as a class C felony in 2015; and dealing in cocaine or a narcotic drug as a level 5 felony in 2016. Appellant's Supplemental Appendix Volume II at 7. The PSI indicated that Atkins violated his probation in 2015. The PSI stated that Atkins's overall risk assessment score using the Indiana Risk Assessment System placed him in the high risk to reoffend category.

[¶12] With respect to mental health and substance abuse, Atkins has previously attended treatment programs but has not successfully completed any such program. Atkins had referrals to Hope House in 2009, Centerstone in 2013 for weekly "outpatient services for substance abuse," id. at 10, and Grace Recovery and Wellness from December 11, 2019 through January 7, 2020, from which he was discharged for refusing to sit in a group and being "very aggressive toward staff." Id. at 4. As for substance use, the PSI reported Atkins first drank alcohol and tried marijuana at age fifteen and that he has not consumed alcohol in the past two years but has been an everyday user of marijuana up until the present offenses. It reported that he started using cocaine at an early age and last used two years ago, used heroin in 2014 and would use a couple times a week up until the present offenses, and used methamphetamine in 2007 or 2008 daily "for a long time" up until the present offenses. Id. at 10. Atkins sought to explain his continued substance use as a product of "not having received the type of treatment or care to warrant [sic] him from continued illegal substance use." Id.

[¶13] After due consideration, we conclude Atkins has not sustained his burden of establishing that his sentence is inappropriate in light of the nature of the offenses and his character.

[¶14] For the foregoing reasons, we affirm Atkins's sentence.

[¶15] Affirmed.

Crone, J., and Felix, J., concur.


Summaries of

Atkins v. State

Court of Appeals of Indiana
Aug 28, 2023
No. 23A-CR-659 (Ind. App. Aug. 28, 2023)
Case details for

Atkins v. State

Case Details

Full title:Patrick L. Atkins, Appellant-Defendant, v. State of Indiana…

Court:Court of Appeals of Indiana

Date published: Aug 28, 2023

Citations

No. 23A-CR-659 (Ind. App. Aug. 28, 2023)