Opinion
24A-CR-377
07-30-2024
Joseph Washington, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Gregory L. Fumarolo Fort Wayne, Indiana. ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Samuel J. Dayton Deputy Attorney General Savannah L. Mundy Certified Legal Intern 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Allen Superior Court Trial Court Cause No. 02D05-2104-F6-540, The Honorable Frances C. Gull, Judge.
ATTORNEY FOR APPELLANT Gregory L. Fumarolo Fort Wayne, Indiana.
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Samuel J. Dayton Deputy Attorney General Savannah L. Mundy Certified Legal Intern Indianapolis, Indiana.
Vaidik and Weissmann, Judges concur.
MEMORANDUM DECISION
Foley, Judge.
[¶1] After pleading guilty to possession of cocaine as a Level 6 felony and being terminated from his participation in drug court, Joseph Washington ("Washington") was sentenced to one and a half years executed in the Indiana Department of Correction ("the DOC"). He appeals his sentence and argues that the sentence is inappropriate in light of the nature of the offense and the character of the offender. We affirm.
Facts and Procedural History
[¶2] On April 11, 2021, at approximately 11:00 p.m., Detective David Wilkins ("Detective Wilkins") of the Fort Wayne Police Department was in the parking lot of a Marathon gas station when he observed a teal Chevrolet Cavalier pull into the parking lot. Detective Wilkins ran the license plate number for the car and learned that the vehicle belonged to Washington, and that Washington had two active warrants for his arrest. Detective Wilkins and another officer, Detective Geoffrey Norton ("Detective Norton"), approached Washington as he was exiting the gas station store and placed him under arrest for the two outstanding warrants. While conducting a search incident to arrest, Detective Norton found a "knotted-off clear plastic baggie containing an off-white, rock[-] like substance" in Washington's right pants pocket. Appellant's App. Vol. II p. 25. Based on his training and experience, Detective Wilkins identified the substance as cocaine, which was later confirmed by a field test, with a total weight of one gram.
[¶3] On April 15, 2021, the State charged Washington with Level 6 felony possession of cocaine. On May 10, 2021, Washington agreed to plead guilty to the crime and participate in drug court, the successful completion of which would result in the dismissal of his charge for possession of cocaine. As a condition to his participation in the drug court program, he agreed to, among other things, "obey all laws and maintain good behavior," submit to random chemical testing, attend and successfully complete all assigned services and programs, work regularly, and "appear in court when instructed." Id. at 32-35.
[¶4] During Washington's time participating in the drug court program, the trial court imposed sanctions on Washington twice-once on July 6, 2021, and once on February 14, 2022-for violations of the drug court participation agreement, including failing to complete community service hours, failing to submit to random chemical testing, missing drug court support meetings, not completing therapy sessions at Antabuse, and being unsuccessfully discharged from programs at Inspiration House and Thirteen Step House. Washington was ordered to serve a weekend in jail for each sanction. When the trial court imposed the second sanction, it noted that there were several times from September 2021 to February 2022 that it could have imposed a sanction but did not.
[¶5] On July 31, 2023, Washington's drug court case manager filed a petition with the drug court to terminate Washington's participation in drug court. The petition alleged the following additional violations: (1) being unsuccessfully discharged from Potter's House on July 22, 2023; (2) failing to attend a scheduled treatment session at Headwaters Counseling on July 3, 2023; (3) failing to provide employment verification as directed on July 12 and 13, 2023; (4) misrepresenting continued employment through Ford Staffing since June 20, 2023; (5) failing to submit to random chemical tests on July 26 and 28, 2023; and (6) testing positive for cocaine on July 22, 2023. Also, on July 31, 2023, Washington failed to appear for a drug court status hearing, and on November 8, 2023, Washington was arrested for false informing. On November 20, 2023, Washington's drug court case manager filed an amended petition to terminate Washington's drug court participation, alleging Washington's arrest for false informing and his failure to appear for the hearing on July 31, 2023, as additional program violations. Also, on November 20, 2023, a hearing was held on the petition, at which Washington admitted to all allegations in the amended petition, except he did not admit to the allegation that he tested positive for cocaine on July 22, 2023. The trial court found that Washington had violated the terms of his drug court participation agreement and ordered him revoked from the drug court program. The trial court then set the case for a sentencing hearing and ordered a presentence investigation report ("PSI") be prepared.
[¶6] On January 17, 2024, a sentencing hearing was held. Washington's PSI was submitted to the trial court and reflected that Washington had begun using cocaine in 2018 and admitted to using it "every chance [he] could get it" until his last known use on April 9, 2021. Id. at 113. Washington also indicated that he had used marijuana since the age of sixteen. At the time the PSI was completed, Washington had a criminal history that included four juvenile adjudications, fourteen prior misdemeanor convictions, and seven prior felony convictions. Specifically, Washington had been convicted of misdemeanor resisting law enforcement twice and felony resisting law enforcement twice, misdemeanor false informing twice, misdemeanor domestic battery once and felony domestic battery once, misdemeanor operating a vehicle while intoxicated twice, misdemeanor disorderly conduct once, misdemeanor operating without a license once, misdemeanor criminal trespass once, felony battery once, felony robbery once, felony possession of cocaine once, and felony carrying a handgun without a license once. Washington's placement on probation was revoked twice, his suspended sentences were revoked three times, and his parole was revoked once. Washington was on probation for a Level 6 felony domestic battery conviction when he committed the instant offense.
[¶7] The trial court found Washington's criminal history, failed efforts at rehabilitation, and the fact that he was on probation at the time of this offense to be aggravating factors. The trial court found Washington's guilty plea, his acceptance of responsibility, and the efforts he made while in drug court to be mitigating factors. The trial court sentenced Washington to serve one and a half years executed in the DOC. Washington now appeals.
Discussion and Decision
[¶8] The Indiana Constitution authorizes appellate review and revision of a trial court's sentencing decision. See Ind. Const. art. 7, §§ 4, 6; Jackson v. State, 145 N.E.3d 783, 784 (Ind. 2020). "That authority is implemented through Appellate Rule 7(B), which permits an appellate court to revise a sentence if, after due consideration of the trial court's decision, the sentence is found to be inappropriate in light of the nature of the offense and the character of the offender." Faith v. State, 131 N.E.3d 158, 159 (Ind. 2019).
[¶9] Our review under Appellate Rule 7(B) focuses 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). We generally defer to the trial court's sentencing decision, and our goal is to determine whether the defendant's sentence is inappropriate, not whether some other sentence would be more appropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). "Such deference should prevail 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] When reviewing a sentence under Appellate Rule 7(B), we remain mindful that the advisory sentence is the starting point the legislature has selected as the appropriate sentence for the crime committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). Here, Washington was convicted of one count of Level 6 felony possession of cocaine. A conviction for a Level 6 felony carries a sentencing range of six months to two and a half years, with the advisory sentence being one year. I.C. § 35-50-2-7(b). The trial court sentenced Washington to a term of one and a half years executed in the DOC.
[¶11] When reviewing the nature of the offense, this court considers "the details and circumstances of the commission of the offense." Merriweather v. State, 151 N.E.3d 1281, 1286 (Ind.Ct.App. 2020). Washington asserts that as to the nature of his offense, his sentence is inappropriate because, when the officers found the drugs on his person, he did not attempt to flee or resist, and no damage was done to others in the commission of his offense. In looking at the nature and circumstances of Washington's offense, the evidence reveals that, at the time the crime was committed, Washington attracted the officers' attention because it was discovered that he had two outstanding warrants for his arrest. When the police performed a search incident to arrest, they found a plastic baggie containing cocaine in his pocket. Washington was also on probation for domestic battery at the time he committed the instant offense.
[¶12] The character of the offender is found in what we learn from the offender's life and conduct. Merriweather, 151 N.E.3d at 1286. "A defendant's criminal history is one relevant factor in analyzing character, the significance of which varies based on the 'gravity, nature, and number of prior offenses in relation to the current offense.'" Smoots v. State, 172 N.E.3d 1279, 1290 (Ind.Ct.App. 2021) (quoting Rutherford v. State, 866 N.E.2d 867, 874 (Ind.Ct.App. 2007)). Even a minor criminal history reflects poorly on a defendant's character for the purposes of sentencing. Id. As to his character, Washington asserts that his substance abuse addiction and his accomplishments during his time in drug court demonstrate that his sentence is inappropriate.
[¶13] In looking at Washington's character, he had an extensive history of criminal and delinquent behavior. As a juvenile, he had four adjudications for crimes that included intimidation and battery. He also had fourteen prior misdemeanor convictions and seven prior felony convictions. These convictions were for crimes ranging from resisting law enforcement, false informing, domestic battery, operating a vehicle while intoxicated, battery, robbery, possession of cocaine, disorderly conduct, operating while suspended, criminal trespass, and carrying a handgun without a license. In addition, at the time Washington entered drug court for the present case, his drug court agreement paused proceedings for a pending charge of operating while intoxicated. Washington previously had his probation revoked twice, had prior suspended sentences revoked three times, and had parole revoked once. As stated above, he was also on probation at the time he committed the present offense and had two outstanding warrants for his arrest. Washington's criminal history reveals that he has repeatedly refused to take advantage of prior opportunities for rehabilitation and the grace given him by probation and suspended sentences and demonstrates that he has a significant propensity to reoffend.
[¶14] Further, although Washington participated in drug court for over two years and made progress towards changing his life, he was sanctioned twice previously for violating the terms of his agreement. He was also arrested for false informing while participating in drug court. Additionally, at the time the petition to revoke his participation in drug court was filed, he had committed several violations of the terms of his agreement, which he later admitted, including, misrepresenting his employment, failing to complete required services, failing to submit to random chemical tests on July 26 and July 28, 2023, and failing to appear for a drug court status hearing. Consequently, Washington has failed to identify "substantial virtuous traits or persistent examples of good character" to support revising his sentence. Stephenson, 29 N.E.3d at 122.
[¶15] Based on the facts in the record, Washington has not shown that his one and a half year executed sentence is inappropriate in light of the nature of the offense and his character.
[¶16] Affirmed.
Vaidik, J., and Weissmann, J., concur.