Opinion
24A-CR-391
08-15-2024
Gerald W. Mahoney, Jr., Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT A. David Hutson Lorch Naville Ward, LLC New Albany, Indiana. ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Michelle Hawk Kazmierczak 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Floyd Superior Court The Honorable Maria Granger, Judge Trial Court Cause No. 22D03-2205-F3-691
ATTORNEY FOR APPELLANT A. David Hutson Lorch Naville Ward, LLC New Albany, Indiana.
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Michelle Hawk Kazmierczak Deputy Attorney General Indianapolis, Indiana.
MEMORANDUM DECISION
BAKER, SENIOR JUDGE.
Statement of the Case
[¶1] Gerald W. Mahoney, Jr. appeals, challenging the appropriateness of his sentence after pleading guilty to one count of Level 5 felony possession of methamphetamine and receiving a sentencing enhancement based on his admission to his status as an habitual offender. We affirm.
Facts and Procedural History
[¶2] Mahoney was stopped for several traffic violations on May 4, 2022. He was driving on a suspended license while under the influence of methamphetamine. And his girlfriend was a passenger in the truck. When asked for identification, Mahoney provided his brother's name to the officer. He was arrested for driving on a suspended license and for false informing. An inventory search of his truck prior to towing revealed methamphetamine in plain view near the radio, a black digital scale in the driver's side door with methamphetamine residue on it, an orange pill bottle containing a plastic bag of just under eight grams of methamphetamine, nine empty plastic bags, another small plastic bag containing methamphetamine, a small amount of marijuana, and a syringe. After Mahoney was advised of his rights, he admitted that he bought the methamphetamine in Madison. Although Mahoney agreed that the amount of methamphetamine suggested he was dealing in the substance, he denied doing so.
[¶3] The State charged Mahoney with one count each of Level 3 felony dealing in methamphetamine, Level 5 felony possession of methamphetamine, Class A misdemeanor driving while suspended, Class B misdemeanor false informing, and an habitual offender enhancement was added. After negotiations, Mahoney agreed to plead guilty to possession of methamphetamine with an habitual offender enhancement, and the State would dismiss the remaining charges. Sentencing was left to the trial court's discretion with a cap of five years on executed time.
[¶4] The trial court accepted the plea agreement and entered judgment of conviction on Level 5 felony possession of methamphetamine and the habitual offender enhancement. Mahoney received a six-year sentence with three years executed at the Department of Correction (DOC) with the recommendation that Mahoney participate in Recovery While Incarcerated and three years suspended to supervised probation for the Level 5 felony conviction, enhanced by two years executed for the habitual offender adjudication. The trial court also ordered that Mahoney undergo drug and alcohol counseling at the direction of the probation department.
Discussion and Decision
[¶5] Mahoney seeks appellate review of his sentence under Indiana Appellate Rule 7(B). More specifically, he asks for "a downward revision of the executed portion of his sentence and that instead he be permitted to serve part of his sentence through community corrections or by any other means that permits him to obtain treatment and avoid a lengthy incarceration." Appellant's Br. p. 16. He contends there "are good reasons not to treat [his] repeated relapse and recidivism primarily as character issues." Id. at 15.
[¶6] The issue here is whether Mahoney's sentence is inappropriate in light of the nature of the offense and his character. Indiana 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." Thompson v. State, 5 N.E.3d 383, 391 (Ind.Ct.App. 2014). The defendant bears the burden of persuading the appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Additionally, "[a] defendant's conscious choice to enter a plea agreement that limits the trial courts discretion to a sentence less than the statutory maximum should usually be understood as strong and persuasive evidence of sentence reasonableness and appropriateness." Id. at 1081 (Dickson, J., concurring). Such claims for "appellate sentence review following such plea agreements" should be granted "only in the most rare, exceptional cases." Id. Whether we regard a sentence as inappropriate turns on 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).
[¶7] To assess whether the sentence is inappropriate, we look first to the statutory range established for the offense. The advisory sentence for a Level 5 felony is three years, with a minimum of one and a maximum of six years. Ind. Code § 35-50-2-6(b) (2014). And under the version of Indiana Code section 35-50-2-8 (2023) in effect at the time of Mahoney's offense, a person found to be an habitual offender after a conviction of a Level 5 felony must serve an additional nonsuspendible term of between two and six years.
[¶8] The court sentenced Mahoney to a term of six years, with three years executed in the DOC with the recommendation that he participate in Recovery While Incarcerated and three years suspended to supervised probation on his possession conviction, enhanced by an additional two years executed for the habitual offender adjudication.
[¶9] "The nature of the offenses is found in the details and circumstances of the commission of the offenses and the defendant's participation." Croy v. State, 953 N.E.2d 660, 664 (Ind.Ct.App. 2011). Here, Mahoney was driving a truck while his driving privileges were suspended and committed multiple traffic violations. He did so with his girlfriend in the truck and while he was under the influence of methamphetamine. He initially lied about his identity to law enforcement officers during the traffic stop. This is the seventh time Mahoney has been charged with driving on a suspended license. His decision to drive endangered himself, his passenger, and other motorists driving on the road at that time.
[¶10] The inventory search of Mahoney's truck revealed more criminal activity. The amount of methamphetamine discovered in the truck strongly suggested that Mahoney intended to deliver it. Officers found methamphetamine in plain view near the radio, a black digital scale in the driver's side door with methamphetamine residue on it, an orange pill bottle containing a plastic bag of nearly eight grams of methamphetamine, nine empty plastic bags, another plastic bag containing methamphetamine, a small amount of marijuana, and a syringe. He admitted he bought the methamphetamine in Madison, which is in Jefferson County, and was stopped in Floyd County, thus transporting drugs across county lines.
[¶11] The "character of the offender" portion of the Rule 7(B) standard refers to general sentencing considerations and relevant aggravating and mitigating factors, Williams v. State, 782 N.E.2d 1039, 1051 (Ind.Ct.App. 2003), trans. denied, and permits a broader consideration of the defendant's character, Anderson v. State, 989 N.E.2d 823, 827 (Ind.Ct.App. 2013), trans. denied. "A defendant's life and conduct are illustrative of his or her character." Morris v. State, 114 N.E.3d 531, 539 (Ind.Ct.App. 2018), trans. denied.
[¶12] Mahoney has a lengthy criminal history and an extensive juvenile record. This record reflects poorly on his character because that history shows a total disregard for leading a law-abiding life despite numerous contacts with law enforcement and the consequences for his criminal behavior. As an adult, Mahoney has accumulated eight felony convictions, six misdemeanor convictions, eight pending felony charges, two pending misdemeanor charges, and multiple violations of probation and parole. He was on probation at the time he committed his current offense.
[¶13] His felony convictions range from burglary, fraud on a financial institution, theft, possession of a legend drug, possession of methamphetamine (twice), counterfeiting, and possession of a syringe. His misdemeanor convictions range from interfering with a drug screening test, possession of a controlled substance, and false informing, as well as multiple convictions for driving while suspended. In Kentucky, Mahoney accumulated four convictions, including convictions for reckless driving, possession of marijuana, first degree possession of a controlled substance, and operating a motor vehicle while under the influence. For his offenses, Mahoney has served executed time, been placed on parole, and been ordered to complete supervised probation on multiple occasions, failing many times.
[¶14] Mahoney's first juvenile adjudication occurred when he was thirteen years old. He has adjudications for criminal mischief, theft, possession of a controlled substance, and public intoxication in addition to one Class B felony burglary/theft that was waived to adult court when he was sixteen years old. He spent periods of time in detention, supervised probation, and was offered services in Seven Challenges, a drug abuse counseling program, on two occasions.
[¶15] At sentencing, Mahoney had numerous pending charges, including a different charge of Level 5 felony possession of methamphetamine, Level 6 felony maintaining a common nuisance, two counts of Level 6 felony unlawful possession of a syringe, two counts of auto theft of the entire automobile, Level 6 felony forgery, Level 6 felony possession of methamphetamine, Class A misdemeanor theft, and Class C misdemeanor possession of paraphernalia.
[¶16] Mahoney argues that the sentence selected by the trial court was inappropriate because he "is now expressing an interest in treatment that was not sought by him or offered to him in the past." Appellant's Br. p. 15. He compares his situation with that described in Hoak v. State, 113 N.E.3d 1209 (Ind. 2019).
[¶17] In Hoak, the defendant similarly had multiple drug-related contacts with the law. Our Supreme Court reduced the defendant's sentence largely because "she has yet to receive court-ordered substance abuse treatment." 113 N.E.3d at 1209. The Court remanded Hoak's case to the trial court to determine if she was eligible for substance abuse treatment in a Community Corrections placement, and, if eligible, to impose an executed sentence on half of Hoak's sentence. Id. at 1209-10.
[¶18] This case is distinguishable from the Hoak decision. Here, there is evidence that Mahoney was offered some services for his addiction. But the difference appears to be Mahoney's attitude about those services. According to Mahoney, the difference between now and when he was previously offered services is that, "I'm older now and . . . I'm ready to make a different lifestyle." Tr. Vol. II, p. 51. During his interview for the presentence investigation report, when asked about treatment, Mahoney said that, "That's what I've been trying to do this whole time I've been here[.] I'm ready to grow up[.] I want to accept the help that could be offered to me[.] I'm open to it." Appellant's App. Conf. Vol. II, p. 74.
[¶19] Mahoney implicitly argues that the trial court disregarded his request for treatment and explicitly argues the court erroneously considered his addiction "primarily as a character defect." Appellant's Br. p. 14. In support of his arguments he points to the trial court's statement that, "We have nothing more to offer you but whatever the maximum sentence is." Tr. Vol. II, p. 55. However, when looking at the sentence imposed, the trial court followed the cap on executed time provided for in the plea agreement and included the recommendation of participation in Recovery While Incarcerated. As for the period of time suspended to probation, the court ordered that Mahoney undergo drug and alcohol counseling at the direction of the probation department.
[¶20] Additionally, the trial court provided Mahoney with the opportunity to pursue treatment in the early stages of this case, but for whatever reason, Mahoney did not take advantage of that opportunity. At a bond reduction hearing, Mahoney asked for his release or a bond reduction so he could resolve open warrants and could seek treatment at Sunrise Recovery. The trial court denied Mahoney's bond reduction request, but allowed Mahoney the opportunity to be furloughed to treatment with a return to the Floyd County Jail upon completion of treatment to respond to the charges in the present case. Mahoney did not follow through with treatment although the trial court set out a procedure for him to do so.
[¶21] In sum, we find nothing about Mahoney's character or the nature of his offense which warrants a downward revision of his sentence. And this is not one of those most rare, exceptional cases, deserving of a grant of relief. See Childress, 848 N.E.2d at 1081 (Dickson, J., concurring). The trial court did not err.
Conclusion
[¶22] In light of the foregoing, we affirm the trial court's judgment.
[¶23] Affirmed.
May, J., and Crone, J., concur.