Opinion
22A-CR-2199
02-01-2023
Justin R. Blevans, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
Attorney for Appellant Jennifer A. Joas Madison, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Megan M. Smith 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Ripley Circuit Court Trial Court Cause No. 69C01-2106-F3-2 The Honorable Ryan J. King, Judge
Attorney for Appellant Jennifer A. Joas Madison, Indiana
Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Megan M. Smith Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Bailey, Judge
Case Summary
[¶1] Justin Blevans appeals his sentence following his guilty plea for possession of methamphetamine, as a Level 3 felony. Blevans raises one issue for our review, namely, whether his sentence is inappropriate in light of the nature of the offense and his character. We affirm.
Ind. Code § 35-48-4-6.1(d) (2022)
Facts and Procedural History
[¶2] On June 24, 2021, an officer conducted a traffic stop on Blevans after he observed Blevans "fail[] to signal." Tr. at 23. Blevans then consented to a search of his vehicle, and another officer conducted a pat down search of Blevans. During that search, an officer found "baggies" in Blevans' pocket. Id. Blevans "admitted" that the baggies contained methamphetamine, and subsequent testing revealed that the amount of methamphetamine was in excess of thirty-one grams. Id.
The facts presented at the guilty plea hearing were limited. However, we have obtained additional information from the probable cause affidavit and the arguments by counsel at the sentencing hearing. See Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (stating that, unless evidence is forbidden by the plea agreement, the trial court may consider all evidence properly before it).
[¶3] The State charged Blevans with possession of methamphetamine, as a Level 3 felony (Count 1), and possession of methamphetamine, as a Level 4 felony (Count 2). In addition, the State alleged that Blevans was a habitual offender.On July 19, the State and Blevans entered into a plea agreement. Pursuant to that agreement, Blevans agreed to plead guilty to Count 1 and admit to his status as a habitual offender in exchange for the State dismissing Count 2. The parties also agreed that Blevans "shall be sentenced at the discretion of the Court with a maximum possible sentence of 10 years" for each Count 1 and the sentencing enhancement. Appellant's App. Vol. 2 at 15.
I.C. § 35-48-4-6.1(c) (2022)
I.C. § 35-50-2-8.
[¶4] The court accepted the plea agreement and entered judgment of conviction against Blevans accordingly. Following a sentencing hearing, the court identified as aggravating factors Blevans' criminal history, that he had been placed on parole for a prior offense twenty-three days prior to the commission of the instant offense, and that he has a history of violating probation. And the court identified as mitigating the fact that Blevans cooperated with the investigation. The court declined to identify Blevans' guilty plea as mitigating because "he already received a benefit pursuant to the Plea Agreement" in that "his exposure is capped at 20 years." Id. at 34. The court then found that the aggravators "significantly outweigh[ed]" the mitigators and sentenced Blevans to ten years on Count 1, enhanced by 10 years on the habitual offender adjudication, for an aggregate term of twenty years in the Department of Correction. Id. This appeal ensued.
Discussion and Decision
[¶5] Blevans contends that his aggregate twenty-year sentence is inappropriate in light of the nature of the offense and his character. Indiana Appellate Rule 7(B) provides that "[t]he 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." This Court has recently held that "[t]he advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed." Sanders v. State, 71 N.E.3d 839, 844 (Ind.Ct.App. 2017). And the Indiana Supreme Court has recently explained that:
The principal role of appellate review should be to attempt to leaven the outliers . . . but not achieve a perceived "correct" result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007), decision clarified on reh'g, 875 N.E.2d 218 (Ind. 2007).Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).
[¶6] Indiana's flexible sentencing scheme allows trial courts to tailor an appropriate sentence to the circumstances presented, and the trial court's judgment "should receive considerable deference." Cardwell, 895 N.E.2d at 1222. Whether we regard a sentence as inappropriate at the end of the day turns on "our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other facts that come to light in a given case." Id. at 1224. The question is not whether another sentence is more appropriate, but rather whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind.Ct.App. 2008). Deference to the trial court "prevail[s] 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).
[¶7] The sentencing range for a Level 3 felony conviction is three years to sixteen years, with an advisory sentence of nine years. I.C. § 35-50-2-5(b). And Blevans faced a possible additional fixed term of six to twenty years for his habitual offender adjudication. I.C. § 35-50-2-8(i)(1). At sentencing, the court identified as aggravators Blevans' criminal history, that he had violated his parole for a prior offense within twenty-three days of his release, and that he has a history of violating the terms of his probation. And the court identified as mitigating that Blevans cooperated with the investigation. The court then found that the aggravators significantly outweighed the mitigators and sentenced Blevans to the maximum term allowed under the plea agreement: ten years on Count 1 enhanced by 10 years for the habitual offender enhancement, for an aggregate sentence of twenty years.
[¶8] On appeal, Blevans contends that his sentence in inappropriate in light of the nature of the offense because he possessed an amount "just barely over the requisite quantity" to support a Level 3 felony conviction, he was "fully cooperative with law enforcement," and "nobody was harmed in the commission of the crime[.]" Appellant's Br. at 10. And he maintains that his sentence is inappropriate in light of his character because his criminal history consists mostly of "minor, non-violent crimes," which were "dissimilar" in nature to the instant offense, and because he accepted responsibility and "saved the State and the Court substantial time and expenses in conducting a trial." Id. at 11.
[¶9] However, Blevans has not met his burden on appeal to demonstrate that his sentence is inappropriate. With respect to the nature of the offense, Blevans possessed in excess of thirty-one grams of methamphetamine, which is three grams above the amount required to support his Level 3 conviction. See I.C. § 35-48-4-6.1(d). And, while we acknowledge that Blevans' crime was not one of violence, he has not presented any evidence to show any restraint or regard on his part. He has not presented compelling evidence portraying the nature of the offenses in a positive light. See Stephenson, 29 N.E.3d at 122.
[¶10] As for his character, at only thirty-three years old, Blevans has a criminal history that dates back to 2003 and includes two adjudications as a juvenile delinquent, four felony convictions, and three misdemeanor convictions. In addition, he has previously been placed on probation three times, and he has violated the terms of his probation three times. Further, and importantly, Blevans had only been on parole for twenty-three days for a prior offense at the time he committed the instant offense. And Blevans has a lengthy history of substance-abuse issues for which he has not received treatment, which reflects poorly on his character.
[¶11] Still, Blevans contends that his agreement to plead guilty "should be taken into consideration[.]" Appellant's Br. at 11. But the trial court did take the guilty plea agreement into consideration and expressly found that it was not a mitigating factor because he "already received a benefit" in that "his exposure is capped at 20 years." Appellant's App. Vol. 2 at 34. Indeed, as the parties pointed out at sentencing, without the plea agreement Blevans faced a maximum possible sentence of thirty-six years. And, pursuant to the plea agreement, Blevans only faced a sentence one year above the advisory sentence for Count 1 and a fixed term only four years higher than the minimum for the habitual offender enhancement. Blevans has not demonstrated that his aggregate sentence-which was the maximum allowed under the plea agreement but far below what he could have otherwise faced-is inappropriate in light of his character.
Conclusion
[¶12] Blevans has not demonstrated that his twenty-year sentence is inappropriate in light of the nature of the offense and his character. We therefore affirm his sentence.
[¶13] Affirmed.
Brown, J., and Weissmann, J., concur.