Opinion
22A-CR-660
01-30-2023
Devante King, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Jessica R. Merino LaPorte County Public Defender's Office Wyatt, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Nicole D. Wiggins 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 LaPorte Superior Court The Honorable Michael Bergerson, Judge Trial Court Cause No. 46D01-2004-F1-485
ATTORNEY FOR APPELLANT
Jessica R. Merino LaPorte County Public Defender's Office Wyatt, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General of Indiana
Nicole D. Wiggins Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Bailey Judge 1
Case Summary
[¶1] Devante King challenges as inappropriate the sentence imposed upon his conviction of Dealing in a Narcotic, as a Level 4 felony. The State cross-appeals, seeking dismissal for lack of jurisdiction. Concluding that we have jurisdiction, we affirm.
Facts and Procedural History
[¶2] On April 22, 2020, the State of Indiana charged King, in a single Information, with Dealing a Narcotic Resulting in Death, as a Level 1 felony, and two counts of Dealing a Narcotic, as Level 4 felonies. On November 20, 2020, a jury convicted King of one count of Dealing a Narcotic, as a Level 4 felony. The jury was unable to reach a verdict on the remaining two counts; the trial court declared a mistrial and scheduled a retrial on the remaining counts. On February 22, 2022, King was sentenced to ten years imprisonment on the one count for which he was convicted. He now appeals.
I.C. § 35-42-1-1.5.
Discussion and Decision 2 Cross Appeal Alleging Lack of Jurisdiction
[¶3] The Indiana Court of Appeals has jurisdiction in all appeals from final judgments. Ind. Appellate Rule 5(A). As set forth in Indiana Appellate Rule 2(H):
A judgment is a final judgment if:
(1) it disposes of all claims as to all parties;
(2) the trial court in writing expressly determines under Trial Rule 54(B) or Trial Rule 56(C) that there is no just reason for delay and in writing expressly directs the entry of judgment (i) under Trial Rule 54(B) as to fewer than all the claims or parties, or (ii) under Trial Rule 56(C) as to fewer than all the issues, claims or parties;
(3) it is deemed final under Trial Rule 60(C);
(4) it is a ruling on either a mandatory or permissive Motion to Correct Error which was timely filed under Trial Rule 59 or Criminal Rule 16; or
(5) it is otherwise deemed final by law.
[¶4] A final judgment disposes of all issues as to all parties, thereby ending the particular case and leaving nothing for future determination. Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003). Whether an order is a final judgment governs our subject matter jurisdiction, and it can be raised at any time by any party or by the court itself. Id. 3
[¶5] The State contends that the sentencing order being appealed is not a final judgment under Appellate Rule 2(H) because it did not end the case, leaving nothing for future determination. King faces retrial on two of the three counts included in the charging Information filed on April 22, 2020. The State correctly observes that we consider the aggregate sentence when considering whether a challenged sentence is inappropriate. See Gleason v. State, 965 N.E.2d 702, 712 (Ind.Ct.App. 2012). But that is in the context of Appellate Rule 7(B) review of sentences actually imposed. King may or may not have other sentences imposed upon him in the future.
[¶6] In the circumstances before us, we do not construe Appellate Rule 2(H) so as to deprive this Court of jurisdiction in this matter. Unlike a civil case where remaining issues may be litigated without loss of liberty, here King's liberty interests were implicated. That is, he is subject to a final order to serve a discrete sentence. He is subject to that sentence regardless of whether he is convicted or acquitted of another criminal charge. We proceed to consider the merits of King's appeal.
Appropriateness of King's Sentence
[¶7] Upon conviction of a Level 4 felony, King was subject to a sentence of between two and twelve years, with an advisory sentence of six years. I.C. § 35-50-2-5.5. King received an enhanced sentence of ten years. In selecting that sentence, the trial court considered King's reported diagnosis of post-traumatic stress disorder to be a mitigating circumstance. As aggravators, the trial court considered King's criminal history, which included three felony convictions (2011 4 aggravated unlawful use of a weapon; 2013 robbery; and 2017 unlawful transport of a firearm), the fact that he was on supervised release from federal custody at the time of the current offense, and the failure of prior rehabilitative efforts.
[¶8] King maintains that his sentence is inappropriate in light of the nature of the offense and his character. Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent appellate review and revision of a trial court's sentencing order. E.g., Livingston v. State, 113 N.E.3d 611, 613 (Ind. 2018). This appellate authority is implemented through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule 7(B) requires the appellant to demonstrate that his sentence is inappropriate in light of the nature of his offenses and his character. See Ind. Appellate Rule 7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind.Ct.App. 2007). We consider not only the aggravators and mitigators found by the trial court, but also any other factors appearing in the record. Baumholser v. State, 62 N.E.3d 411, 417 (Ind.Ct.App. 2016), trans. denied. It is the defendant's burden to "persuade the appellate court that his or her sentence has met th[e] inappropriateness standard of review." Roush v. State, 875 N.E.2d 801, 812 (Ind.Ct.App. 2007).
[¶9] 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 v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of appellate review is to attempt to "leaven the outliers." Id. at 1225. Whether we regard a sentence as inappropriate at the 5 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 factors 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).
[¶10] As to the nature of the offense, King sold 2.7 grams of heroin to a confidential informant. He was subject to a Level 4 felony for selling as little as one gram. King points out that the offense involved no brutality. True, but King was not charged with a violent offense. Nor does King's character support a sentence revision. In addition to his convictions for three felonies and his violation of the terms of his release from federal custody, King was facing new criminal charges for dealing cocaine by the time that he was sentenced for dealing heroin. We perceive no "substantial virtuous traits or persistent examples of good character." Id.
[¶11] King also presents a cursory argument that the trial court accorded too much weight to his felony convictions because of their remoteness. "Trial courts no longer have any obligation to weigh aggravating and mitigating factors against each other when imposing a sentence." Richardson v. State, 906 N.E.2d 241, 243 (Ind.Ct.App. 2009). 6 The amount of weight given to sentencing factors is thus no longer a cognizable issue on appeal. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (2007).
[¶12] We cannot say that King's sentence is inappropriate in light of the nature of his offense and his character.
Conclusion
[¶13] King has failed to persuade us that his sentence is inappropriate.
[¶14] Affirmed.
Brown, J., and Weissmann, J., concur. 7