Opinion
24A-CR-453
12-11-2024
Samuel Lynn Thompson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Paul J. Podlejski Anderson, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana J.T. Whitehead 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Madison Circuit Court The Honorable Andrew R. Hopper, Judge Trial Court Cause No. 48C03-2212-F4-003510
ATTORNEY FOR APPELLANT Paul J. Podlejski Anderson, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
DEBOER, JUDGE.
Case Summary
[¶1] Samuel Thompson was convicted of Level 4 felony Unlawful Possession of a Firearm by a Serious Violent Felon and Class C misdemeanor Possession of Paraphernalia. He now contends that his ten-year executed sentence is inappropriate considering the nature of these offenses and his character. We disagree with Thompson and affirm the trial court on this issue; however, we find the trial court erred in its sentence related to the possession of paraphernalia conviction, vacate that sentence, and remand for resentencing in accordance with this opinion.
Facts and Procedural History
[¶2] In the early morning hours of December 7, 2022, police responded to a 911 call of an unconscious person inside a house. Officers arrived, entered the house, and found Samuel Thompson "sitting in an upright position" on a bed before he fell "backwards." Tr. Vol. 1 at 182. Officers administered one dose (two milligrams) of Narcan, and searched Thompson's "general vicinity," finding five syringes, a used syringe cap, a meth pipe, and a baggie of marijuana. Id. at 184. Paramedics arrived and administered an additional ten milligrams of Narcan because Thompson was unresponsive and his breathing had deteriorated to a point "not capable of life." Id. at 242-43. As officers were assisting Thompson to the ambulance, they located a loaded firearm in his back waistband.
[¶3] The State charged Thompson with Count I: Unlawful Possession of a Syringe as a Level 6 felony, Count II: Possession of Marijuana as a Class B misdemeanor, Count III: Possession of Paraphernalia as a Class C misdemeanor, and Count IV: Unlawful Possession of a Firearm by a Serious Violent Felon as a Level 4 felony. A jury found Thompson guilty of possession of paraphernalia and possession of a firearm, and not guilty of the remaining charges. After the verdict and outside the jury's presence, Thompson pled guilty to Level 4 felony Unlawful Possession of a Firearm by a Serious Violent Felon when he admitted that at the time he possessed the firearm, he had been previously convicted of dealing in methamphetamine.
Indiana Code Section 35-47-4-5 prohibits the unlawful possession of a firearm by a serious violent felon. See Spearman v. State, 744 N.E.2d 545, 547 (Ind.Ct.App. 2001). The statute defines "serious violent felon" and lists over two dozen crimes classified as a "serious violent felony," including dealing in methamphetamine. Ind. Code Section 35-47-4-5(b)(28).
[¶4] Before sentencing, probation prepared its Presentence Investigation ("PSI") Report on Thompson. The PSI revealed Thompson had four prior felony convictions, including one crime of violence, five prior misdemeanor convictions, and six violations of community supervision. The PSI also disclosed that Thompson used methamphetamine once a week and had last used "two to three days" before his arrest. Appellant's App. 2 at 117.
[¶5] At sentencing, Thompson requested to serve any sentence at a "halfway house" or "recovery house," while the State suggested a nine-year prison sentence. Tr. Vol. 2 at 130-132. The trial court placed significant weight on Thompson's criminal history, including his "[m]ultiple convictions for dealing in [m]ethamphetamine," "crimes of violence," six violations of "community supervision," and his prior unsuccessful attempt to complete the "Re-Entry court program." Id. at 139-40. The trial court gave Thompson's admission that he was a serious violent felon a "very small amount of weight" because Thompson had already required the parties and the trial court to conduct an entire jury trial for the first phase of the proceedings. Id. at 141. The trial court declined to find that Thompson was unlikely to reoffend and stated:
"Re-entry court" refers to a "problem solving court that is focused on the needs of individuals who reenter the community after a period of incarceration and that may provide a range of necessary reintegration services for eligible individuals . . ." Ind. Code § 33-23-16-9.
Part of what has caused you to be here today is because you continue to engage in the same kind of behavior in your use of substances. Also, an [sic] aggravation you have violated your Court supervision multiple times in multiples ways and even in very recent history you just came out of the Department of Corrections not too terribly long ago.Id. at 142.
[¶6] The trial court sentenced Thompson to ten years executed in the Indiana Department of Correction for possession of a firearm by a serious violent felon, and 180 days for possession of paraphernalia, to be served concurrently.
Discussion and Decision
[¶7] Thompson argues his sentence is inappropriate given the nature of his offenses and his character. Criminal sentences are modified on appeal only when we find "the sentence is inappropriate in light of the nature of the offense and the character of the offender." Indiana Appellate Rule 7(B). Sentencing decisions are within the sound discretion of the trial court and are reviewed only for abuse of discretion if the sentence is within the statutory range. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g 875 N.E.2d 218 (Ind. 2007). "The principal role of [Appellate Rule 7(B)] review should be to attempt to leaven the outliers." Cardwellv. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Our determination "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. As this Court explained,
Our review is deferential to the trial court's decision, and our goal is to determine whether the appellant's sentence is inappropriate, not whether some other sentence would be more appropriate. We consider not only the aggravators and mitigators found by the trial court, but also any other factors appearing in the record. The appellant bears the burden of demonstrating his sentence [is] inappropriate.George v. State, 141 N.E.3d 68, 73-74 (Ind.Ct.App. 2020) (internal citations omitted), trans. denied. We conduct a "holistic" review that takes into consideration "the whole picture before us." Lane v. State, 232 N.E.3d 119, 127 (Ind. 2024). Appellants need not prove their sentence is inappropriate for both their character and offense, but "to the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief." Id. Ultimately, "a defendant bears the burden of persuading the appellate court that his or her sentence is inappropriate." Rutherford v. State, 866 N.E.2d 867, 873 (Ind.Ct.App. 2007).
[¶8] Thompson was convicted of Level 4 felony possession of a firearm by a serious violent felon and Class C misdemeanor possession of paraphernalia. A person who commits a Level 4 felony shall be imprisoned for a fixed term of between two and twelve years, with the advisory sentence being six years. See I.C. § 3550-2-5.5. A person who commits a Class C misdemeanor shall be imprisoned for a fixed term of not more than sixty days. I.C. § 35-50-3-4. Here, the trial court sentenced Thompson to an aggregate sentence of ten years.
1. Nature of the Offense
[¶9] "Our analysis of the nature of the offense requires us to look at the nature, extent, heinousness, and brutality of the offense." Pritcherv. State, 208 N.E.3d 656, 668 (Ind.Ct.App. 2023) (internal quotations omitted). "[C]ompelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality)" could warrant a downward revision of the defendant's sentence. Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). "When considering the nature of the offense, we first look to the advisory sentence for the crime." McHenry v. State, 152 N.E.3d 41, 46 (Ind.Ct.App. 2020). When, as here, a sentence deviates from the advisory sentence, "we consider whether there is anything more or less egregious about the offense as committed by the defendant that distinguishes it from the typical offense accounted for by our legislature when it set the advisory sentence." Madden v. State, 162 N.E.3d 549, 564 (Ind.Ct.App. 2021).
[¶10] Thompson argues that his offense was "not one of an egregious or shocking nature" and casually mentions he was "alone in his home, passed out, albeit intoxicated; but not posing any risk to others in the community." Appellant's Br. at 11-12. We hasten to point out that Indiana law prohibits the possession of firearms by felons and the elements of the crime do not require the firearm to be carried in public. See George v. State, 141 N.E.3d 68, 74 (Ind.Ct.App. 2020) (rejecting George's argument that his possession of a firearm by a serious violent felon offense was less egregious than the standard offense because George's firearm was not used in the commission of a crime since that is not an element of the crime). Contrary to Thompson's assertion that he did not pose a risk to others in the community, we note that Thompson not only possessed a loaded firearm easily accessible in his waistband but did so while in a dangerous and intoxicated mental state, surrounded by drug paraphernalia containing residue of a "white, crystal-like substance." Tr. Vol. 1 at 187. He was intoxicated to the extent that he was "going in and out of consciousness," breathing below the threshold of sustaining life, unable to hold himself up, and "not mentally competent." Id. at 241. Thompson's possession of a firearm in his unstable state of mind created a grave risk of harm not only to himself but also to others, as someone was close enough to Thompson to know he needed additional assistance from 911. Thompson's possession of a loaded firearm, combined with his level of intoxication, exposed the concerned citizen and first responders to danger. We find nothing about the nature of Thompson's offense that renders the trial court's sentence inappropriate.
2. Character of the Offender
[¶11] The "character of the offender portion of the standard refers to the general sentencing considerations and the relevant aggravating and mitigating circumstances." Reis v. State, 88 N.E.3d 1099, 1105 (Ind.Ct.App. 2017) (internal quotations omitted). A defendant's life and conduct are illustrative of his character. Morris v. State, 114 N.E.3d 531, 539 (Ind.Ct.App. 2018). When considering the character of the offender, the appellant's criminal history is relevant. George, 141 N.E.3d at 74. "The significance of a criminal history in assessing a defendant's character and an appropriate sentence varies based on the gravity, nature, and number of prior offenses in relation to the current offense." Rutherford, 866 N.E.2d at 874. "Even a minor criminal record reflects poorly on a defendant's character[,]" and Thompson's criminal history reveals a "lifelong struggle" to abide by the law. Cramer v. State, 240 N.E.3d 693, 700 (Ind. 2024); Tr. Vol. 2 at 141.
[¶12] Thompson's life of crime began in 1991 at the age of twenty. Between 1989 and 2004, Thompson committed numerous misdemeanor driving offenses. However, in 2011, he was charged with attempted rape, criminal deviate conduct and criminal confinement as well as Class A felony dealing in methamphetamine. While this case was still pending, in 2012 Thompson was charged with a Class B felony dealing in methamphetamine. Ultimately, Thompson pled guilty to two Class B felony dealing methamphetamine charges to resolve both cases.
[¶13] Significant in our decision and contrary to Thompson's position that he demonstrates character warranting a reduction in his sentence, while Thompson was serving his sentence in the 2011 dealing in methamphetamine case, he was terminated from Re-Entry Court. He also violated probation at least three times, and he was terminated from his probation-ordered drug treatment program. While Thompson was on electronic monitoring, he was charged with and ultimately convicted of strangulation, criminal confinement, resisting law enforcement, and domestic battery. Ten months after completing a sentence in the Indiana Department of Corrections, Thompson was arrested and charged in two additional causes, including this cause on appeal.
[¶14] Thompson has been afforded numerous opportunities to reform his behavior through modifications of his sentences, yet he has failed to avail himself of the programs in which he participates or to demonstrate to this Court that his character warrants a revised sentence. To the contrary, he has shown himself to be an incredibly poor candidate for probation or other reformative means. See Wilson v. State, 221 N.E.3d 667, 680 (Ind.Ct.App. 2023) (declining to find a sentence of five years with four executed for escape and possession of cocaine inappropriate where "prior . . . showings of leniency have failed" to rehabilitate the defendant). The Court finds Thompson's history of criminality and violence spanning over thirty years does not render his sentence inappropriate.
3. Possession of Paraphernalia
[¶15] Thompson was also convicted of Class C misdemeanor possession of paraphernalia and sentenced to 180 days of incarceration to run concurrently to his sentence for the firearm conviction. However, the maximum amount of time for which a person can be incarcerated for a Class C misdemeanor is 60 days. See I.C. § 35-50-3-4. It is our Court's duty to "correct sentencing errors, sua sponte, if necessary." Dickson v. State, 624 N.E.2d 472, 474 (Ind.Ct.App. 1993) (emphasis in original). See also Comer v. State, 839 N.E.2d 721, 726 (Ind.Ct.App. 2005) (reviewing a trial court's sentencing order sua sponte and concluding that the trial court erred in considering an aggravating factor when sentencing Comer). A trial court's sentence "must not exceed the limits prescribed by statute." Fix v. State, 186 N.E.3d 1134, 1143 (Ind. 2022). Here, the trial court sentenced Thompson to 180 days, or three times the statutory maximum. Given the trial court's error, we remand this matter to the trial court and instruct the court to resentence Thompson on Count III: Possession of Paraphernalia as a Class C misdemeanor consistent with Indiana Code Section 35-50-3-4.
Conclusion
[¶16] Based on the nature of the offense and Thompson's character, we affirm Thompson's sentence of ten years for possession of a firearm by a serious violent felon. However, Thompson's 180-day concurrent sentence for Class C misdemeanor possession of paraphernalia exceeds that permitted by statute. Therefore, we vacate Thompson's sentence for possession of paraphernalia and remand for sentencing within the statutory range for a Class C misdemeanor.
[¶17] Affirmed, vacated and remanded.
May, J., and Tavitas, J., concur.