Courtney L. Sharp v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Jun 09 2015, 9:07 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brandon E. Murphy Gregory F. Zoeller
Muncie, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Courtney L. Sharp, June 9, 2015
Appellant-Defendant, Court of Appeals Case No.
05A02-1411-CR-786
v. Appeal from the Blackford Superior
Court
State of Indiana,
The Honorable John N. Barry, Judge
Appellee-Plaintiff.
Trial Court Cause No.
05D01-1402-FC-59
Mathias, Judge.
[1] Courtney L. Sharp pleaded guilty to Class C felony possession of cocaine in
Blackford Superior Court and was sentenced to five years, with two years
executed and three years suspended to probation. Sharp appeals and claims: (1)
that the trial court abused its discretion in sentencing him; and (2) that the
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sentence imposed by the trial court is inappropriate in light of the nature of the
offense and the character of the offender.
[2] We affirm.
Facts and Procedural History
[3] Shortly before midnight on February 24, 2014, Hartford City Police Officer
Jason Young (“Officer Young”) made a traffic stop of a vehicle in which Sharp
was a passenger. When Sharp opened the glove box to retrieve the vehicle’s
registration, Officer Young saw piece of folded, pink paper containing a leafy
material he recognized as marijuana. Sharp dropped the paper on the
floorboard, and Officer Young ordered Sharp to exit the vehicle and go to a
patrol car with another officer on the scene, Sergeant McKissack (“Sgt.
McKissack”). At this point, Sharp began to yell and complain about the
officers’ actions.
[4] Officer Young then looked inside the vehicle, at which point Sharp began to
physically resist Sgt. McKissack, apparently because Sgt. McKissack began to
perform a pat-down search of Sharp. When Officer Young went to help Sgt.
McKissack subdue Sharp, McKissack informed him that Sharp had a hard
object in the back of his pants. Officer Young located the object and attempted
to remove it from Sharp’s pants, but Sharp grabbed the object and held on to it.
The officers wrestled Sharp to the ground as he continued to hold on to the
object. Officer Young eventually pried the object from Sharp’s fingers. The
object was a plastic bag containing two smaller plastic bags. Inside the smaller
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bags was marijuana and what was later determined to be eleven grams of
cocaine.
[5] As a result of this incident, the State charged Sharp the following day in four
counts: Count I, Class C felony possession of cocaine; Count II, Class A
misdemeanor possession of marijuana; Count III, Class A misdemeanor
resisting law enforcement; and Count IV, Class B misdemeanor disorderly
conduct. On September 25, 2014, Sharp reached an agreement with the State
whereby he would plead guilty to Count I, and the State would dismiss the
remaining charges and charges pending in two other cases in Blackford Circuit
Court. Pursuant to the plea agreement, sentencing was left to the discretion of
the trial court with the exception of a four-year cap on executed time. At the
guilty plea hearing, the trial court took the plea under advisement.
[6] At a sentencing hearing held on October 28, 2014, the trial court accepted the
plea and found the following aggravating circumstances: (1) Sharp had a prior
misdemeanor conviction in which his probation had been revoked; (2) Sharp’s
acts of resisting the efforts of law enforcement during his arrest in the present
case demonstrated “disdain for the authority of law enforcement,” from which
the trial court found that Sharp would not respond positively to a completely
suspended sentence; (3) Sharp had continued to use controlled substances while
the present case was pending; and (4) the court did not believe Sharp’s claims
that the eleven grams of cocaine found in his possession was for personal use,
further demonstrating that Sharp would not respond positively to a completely
suspended sentence. The trial court found as mitigating Sharp’s relatively young
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age of twenty-five years and that he has two dependent children. Concluding
that the aggravating circumstances outweighed the mitigating circumstances,
the trial court sentenced Sharp to five years, with two years executed and three
years suspended to probation. Sharp now appeals.
I. Abuse of Sentencing Discretion
[7] Sharp claims that the trial court abused its discretion in sentencing him.
Generally speaking, sentencing decisions are left to the sound discretion of the
trial court, and we review the trial court’s decision only for an abuse of this
discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g,
875 N.E.2d 218. An abuse of discretion occurs if the decision is clearly against
the logic and effect of the facts and circumstances before the trial court. Id. The
trial court may abuse its discretion in sentencing in a number of ways,
including: (1) wholly failing to enter a sentencing statement, (2) entering a
sentencing statement that explains reasons for imposing the sentence but the
record does not support the reasons, (3) the sentencing statement omits reasons
that are clearly supported by the record and advanced for consideration, or (4)
the reasons given in the sentencing statement are improper as a matter of law.
Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012) (citing Anglemyer, 868
N.E.2d at 490-91).
[8] Sharp argues that the trial court abused its discretion by finding two aggravating
circumstances that were supported by the record: (1) that Sharp resisted law
enforcement on the date of his arrest, and (2) that the trial court did not believe
Sharp’s claim that the eleven grams of cocaine found on his person was for
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personal use. Sharp also claims that the trial court failed to consider two
mitigating factors he claims were present.
A. Aggravating Circumstances
[9] With regard to the first challenged aggravating circumstance, Sharp argues that
by relying on his actions of resisting law enforcement, the trial court denied him
the full bargained benefit of his plea agreement, which dismissed the count
alleging that Sharp had committed Class A misdemeanor resisting law
enforcement. We disagree.
[10] Sharp refers us to nothing in his plea agreement that would preclude the trial
court from considering the nature and circumstances of his crime as an
aggravating circumstance. The fact that the nature and circumstances of his
crime for which Sharp pleaded guilty included acts that were the basis of
dismissed charges does not mean that the nature and circumstances of the crime
cannot be considered as aggravating.
[11] We addressed this issue in Corralez v. State, 815 N.E.2d 1023 (Ind. Ct. App.
2004). In Corralez, the defendant drove his vehicle at extremely high speeds,
disregarded stop signs, and collided with a vehicle at an intersection. The driver
of the other vehicle died after suffering for fourteen days. The State charged
Corralez with Class C felony reckless homicide. Corralez agreed to plead guilty
to Class D felony criminal recklessness in exchange for dismissing the Class C
felony charge. On appeal, Corralez claimed that the trial court had erred by
considering as aggravating the fact that he had originally been charged with
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reckless homicide. We held tha, although the trial court should not have
considered the fact that Corralez had been charged with a Class C felony as an
aggravating factor by itself, the trial court could properly consider “the facts
surrounding Corralez’ crime.” Id. at 1026. We therefore held that “the trial
court’s decision to issue an aggravated sentence was supported by the
consideration that a person not only died as a result of Corralez’ recklessness
but suffered for fourteen days before dying.” Id.
[12] The same is true here. The trial court did not consider as aggravating that Sharp
had been charged with resisting law enforcement. Instead, the trial court simply
noted the nature and circumstances of the crime, which included Sharp’s
actions of resisting law enforcement, as evidence of his disregard for the
authority of the law.1 The trial court used this aggravating circumstance in
deciding not to suspend the entirety of Sharp’s sentence. Through the plea-
bargained dismissal of the resisting charge, Sharp avoided a separate sentence
for his conduct, but pursuant to our holding in Corralez, it was not improper to
consider his conduct as an aggravator.
[13] Sharp also claims that the trial court abused its discretion by rejecting his claims
that the eleven grams of cocaine found on his person was for personal use that
he obtained through “chance encounters with strangers.” Appellant’s App. p.
21. Sharp claims that because no evidence contradicted his testimony at the
1
The nature and circumstances of Sharp’s crimes were set forth in the probable cause affidavit supporting the
charging information, which was included in the presentence investigation report. Sharp did not challenge
the veracity or accuracy of the account of his crimes as detailed in the presentence investigation report.
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sentencing hearing, the trial court abused its discretion by rejecting his claims
and considering this as an aggravating factor. Again, we disagree.
[14] As the trier of fact, the trial court was under no obligation to credit Sharp’s self-
serving testimony that the relatively large quantity of cocaine2 found on his
possession was merely for personal use. See Wood v. State, 999 N.E.2d 1054,
1064 (Ind. Ct. App. 2013) (noting that the trier of fact is not required to believe
a witness’s testimony even when it is uncontradicted).
[15] Sharp also claims that the trial court erred in finding that he claimed to have
bought the cocaine from strangers. Sharp notes that he testified that he obtained
the cocaine through a person named “Jimmy,” yet he claimed not to know
Jimmy’s last name. He claimed that he knew Jimmy through another friend,
Denise, whom he met at a gas station. However, he claimed not to know
Denise’s last name either. Again, the trial court was not obligated to believe any
of Sharp’s testimony. Thus, the trial court’s reference to these individuals as
strangers is not an abuse of discretion given Sharp’s claim not to even know
these individuals’ last names.
B. Mitigating Circumstances
[16] Sharp contends that the trial court abused its discretion by failing to consider
two mitigating circumstances that were clearly supported by the record: (1) that
2
The statute in effect at the time when Sharp committed his offense elevated the offense of possession of
cocaine to a Class C felony if the amount involved weighed three grams or more. Thus, Sharp possessed
almost four times the amount of cocaine required to elevate his crime of possession to a Class C felony.
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his crime neither caused nor threatened serious harm to persons or property,
and (2) his history of full-time employment.
[17] The finding of mitigating factors is not mandatory and rests within the
discretion of the trial court. Williams v. State, 997 N.E.2d 1154, 1163-64 (Ind.
Ct. App. 2013). The trial court is not required to accept the defendant’s
arguments as to what constitutes a mitigating factor. Id. Further, the trial court
is not required to give the same weight to proffered mitigating factors as the
defendant does, nor is it obligated to explain why it did not find a factor to be
significantly mitigating. Id. The trial court does not abuse its discretion by
declining to find alleged mitigating circumstances that are highly disputable in
nature, weight, or significance. Jackson v. State, 973 N.E.2d 1123, 1130-31 (Ind.
Ct. App. 2012). The relative weight or value assignable to reasons properly
found or those which should have been found is not subject to review for abuse
of discretion. Id. (citing Anglemyer, 868 N.E.2d at 491).
[18] With regard to the first alleged mitigator, that Sharp’s crimes did not cause or
threaten serious harm to persons or property, we note that Sharp did not
advance this for consideration as a mitigator to the trial court. Accordingly, the
trial court cannot be said to have abused its discretion by failing to consider this
alleged mitigating factor. See Anglemyer, 868 N.E.2d at 492 (“the trial court does
not abuse its discretion in failing to consider a mitigating factor that was not
raised at sentencing.”).
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[19] With regard to Sharp’s employment history, Sharp testified that he had been
employed for approximately two months, during which he worked six weeks at
one job and two weeks at another. Although we commend Sharp’s efforts to
maintain employment, we are unable to agree with him that his employment
history is a significant mitigator that the trial court improperly overlooked.
[20] In summary, we conclude that the trial court did not abuse its discretion in its
consideration of aggravating and mitigating circumstances. However, even if
we were to conclude otherwise, we will not remand for resentencing if the
sentence imposed is not inappropriate. Williams v. State, 997 N.E.2d 1154, 1165
(Ind. Ct. App. 2013) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007)).
As explained below, Sharp’s sentence is not inappropriate.
II. Appellate Rule 7(B)
[21] Even if a trial court acted within its statutory discretion in imposing a sentence,
Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent
appellate review and revision of a sentence imposed by the trial court. Trainor v.
State, 950 N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied (citing
Anglemyer, 868 N.E.2d at 491). This authority is implemented through Indiana
Appellate Rule 7(B), which provides that the court on appeal “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.”
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[22] Still, we must and should exercise deference to a trial court’s sentencing
decision because Rule 7(B) requires us to give ‘due consideration’ to that
decision and because we understand and recognize the unique perspective a
trial court brings to its sentencing decisions. Id. Although we have the power to
review and revise sentences, the principal role of appellate review should be to
attempt to level the outliers and identify some guiding principles for trial courts
and those charged with improvement of the sentencing statutes, but not to
achieve what we perceive to be a “correct” result in each case. Fernbach v. State,
954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied (citing Cardwell v.
State, 895 N.E.2d 1219, 1225 (Ind. 2008)). The appropriate question is not
whether another sentence is more appropriate; rather, the question is whether
the sentence imposed is inappropriate. Former v. State, 876 N.E.2d 340, 344
(Ind. Ct. App. 2007). It is the defendant’s burden on appeal to persuade us that
the sentence imposed by the trial court is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
[23] When reviewing the appropriateness of a sentence, we are not “to consider only
the appropriateness of the aggregate length of the sentence without considering
also whether a portion of the sentence is ordered suspended.” Marley v. State, 17
N.E.3d 335, 339 (Ind. Ct. App. 2014), trans. denied (citing Davidson v. State, 926
N.E.2d 1023, 1024 (Ind. 2010)). This does not preclude us from determining a
sentence to be inappropriate due to its overall sentence length despite the
suspension of a substantial portion thereof, as a defendant on probation is
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subject to the revocation of probation and may be required to serve up to the
full original sentence. Id.
[24] Here, Sharp was convicted of a Class C felony. The sentencing range for a Class
C felony is two to eight years, with the advisory sentence being four years. Ind.
Code § 35-50-2-6. The trial court imposed a sentence of one year above the
advisory but still three years under the maximum. Also, the trial court ordered
only two years of the sentence executed, with the remaining three years
suspended to probation. With this in mind, we address the nature of the offense
and the character of the offender.
[25] Here, the nature of the offense supports the trial court’s sentencing decision.
Even if we were to ignore the fact that Sharp physically resisted the efforts of
the law enforcement officers, it remains that Sharp possessed eleven grams of
cocaine, significantly greater than the three grams required to elevate his crime
of possession to a Class C felony.
[26] Considering the character of the offender, we note that although Sharp does not
have a significant criminal history, he failed to successfully complete his
probation on his prior misdemeanor conviction. Moreover, he admittedly used
marijuana while the current case was pending. None of this leads us to
conclude that Sharp’s sentence is inappropriate.
Conclusion
[27] The trial court did not abuse its discretion in its identification of aggravating
factors or in its failure to consider certain factors as mitigating. Furthermore,
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Sharp’s sentence of five years, with two years executed and three years
suspended to probation, is not inappropriate in light of the nature of the offense
and the character of the offender.
[28] Affirmed.
May, J., and Robb, J., concur.
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