Pierre Malone v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), this Jul 29 2016, 9:53 am
Memorandum Decision shall not be regarded as CLERK
precedent or cited before any court except for the Indiana Supreme Court
Court of Appeals
purpose of establishing the defense of res judicata, and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Gary A. Cook Gregory F. Zoeller
Peru, Indiana Attorney General of Indiana
Karl Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Pierre Malone, July 29, 2016
Appellant-Defendant, Court of Appeals Cause No.
34A05-1512-CR-2327
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable William G. Menges,
Jr., Judge
Appellee-Plaintiff.
Cause No. 34D01-1508-F4-713
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Pierre Malone (Malone), appeals his sentence after
pleading guilty to dealing in a narcotic drug, a Level 5 felony, Ind. Code § 35-
48-4-1.
[2] We affirm.
ISSUE
[3] Malone raises one issue on appeal, which we restate as: Whether Malone’s
sentence is inappropriate in light of the nature of the offense and his character.
FACTS AND PROCEDURAL HISTORY
[4] During the summer of 2015, the Kokomo Police Department Drug Task Force
had been receiving numerous phone calls and hotline tips that Malone’s house
was being used as a drug house. In the late afternoon of August 4, 2015, the
officers maintained a visual surveillance of Malone’s home. The officers saw
some short-stay traffic, with people frequently arriving and leaving Malone’s
home. Specifically, at around 4:10 p.m., an unknown man driving a Chevrolet
truck briefly visited Malone’s home. Shortly thereafter, the police stopped the
Chevrolet truck, and a K9 officer detected the presence of narcotics inside the
vehicle; however, they were prescription drugs. At around 5:00 p.m., a man
driving a maroon Chrysler knocked on Malone’s door and then left. Again, at
5:28 p.m., an unknown man briefly visited Malone’s house. Two minutes later,
a man driving a black Chevrolet Trailblazer arrived at Malone’s home and then
drove off. The officers followed the black Chevrolet and stopped it for a traffic
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infraction. During the course of the traffic stop, the driver of the black
Chevrolet admitted that he had swallowed a bag containing one gram of heroin.
The officers also located a bag inside the center console, and the contents of
that bag field tested positive for heroin.
[5] At approximately 6:48 p.m. on August 4, 2015, the police obtained a search
warrant to search Malone’s home. Prior to executing the search warrant,
Jacques Malone (Jacques), Malone’s son, was observed leaving the residence
on a bicycle. Jacques was detained and subsequently transported to the
Kokomo Police Department. Malone was observed leaving his home driving a
silver Buick, and he was stopped and detained. At around 8:10 p.m., the
Kokomo Police Department SWAT team entered Malone’s home. Once
inside, the officers discovered a piece of foil containing an off-white rock like
substance, which field tested positive for heroin. More heroin was found on the
top of a book case. Also recovered from the search was a syringe in the pocket
of a dress coat inside Malone’s bedroom, and three firearms were seized during
the search.
[6] On August 7, 2015, the State filed an Information, charging Malone with Count
I, dealing in a narcotic drug, a Level 5 felony; Count II, maintaining a common
nuisance, a Level 6 felony; Count III, unlawful possession of a syringe, a Level
6 felony; and Count IV, dealing in a narcotic drug, a Level 4 felony. Pursuant
to a plea agreement, on November 25, 2015, Malone pled guilty in open court
to Count I, and the State agreed to dismiss the remaining Counts. Sentencing
was left open to the trial court. On the same day, the trial court conducted
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Malone’s sentencing hearing, and at the close of the evidence, the trial court
sentenced Malone to an executed sentence of six years in the Department of
Correction, with 151 days of credit.
[7] Malone now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION1
[8] Malone contends that his six-year 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.” The burden is on
the defendant to persuade the appellate court that his or her sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
“Ultimately the length of the aggregate sentence and how it is to be served are
the issues that matter.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
Whether we regard a sentence as appropriate at the end of the day turns on our
1
Pursuant to Indiana Administrative Rule 9(G)(2)(b) and Indiana Code section 35-38-1-13, the presentence
investigation (PSI) report must be excluded from public access. However, in this case, the information
contained in the PSI report “is essential to the resolution” of Malone’s claim on appeal. Ind. Admin. Rule
9(G)(7)(a)(ii)(c). Accordingly, we have included confidential information in this decision only to the extent
necessary to resolve the appeal.
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sense of the culpability of the defendant, the severity of the crime, the damage
done to others, and a myriad of other considerations that come to light in a
given case. Id.
[9] The advisory sentence is the starting point the legislature has selected as an
appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,
1019 (Ind. 2012). The sentencing range for a Level 5 felony is one year to six
years, with three years being the advisory term. I.C. § 35-50-2-6(b). Here, the
trial court sentenced Malone to the maximum sentence of six years.
[10] Our review of the nature of offense reveals that Malone pled guilty to dealing in
a narcotic drug. As for Malone’s character, prior to his current offense, Malone
had several incidents of involvement with the criminal justice system. In 2007,
Malone was charged with driving with a suspended license and false informing.
For those offenses, Malone received one year of probation. In 2008, Malone
was charged with check deception and he received one year of probation. Of
significance is that this is not Malone’s first drug offense. According to the PSI,
in 2009, Malone was charged with three Counts of dealing in a schedule II
controlled substance, two of those Counts were dismissed, and the trial court
ordered him to attend the Drug Court Program, which he successfully
completed. Malone characterizes his offense as an innocuous situation in
which he, a relapsed drug addict, was doing his best to stay away from drugs,
but he continued to associate himself with drug addicts. Malone claims that he
could sustain a drug-free life if he received treatment for his drug addiction, and
he would benefit from probation or in-home detention.
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[11] Malone fails to recognize that defendants are not entitled to serve a sentence in
either probation or a community corrections program. Rather, placement in
either is a matter of grace and a conditional liberty that is a favor, not a right.
Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999). It is clearly evident that the prior
imposition of more lenient sentences and participation in a drug program for
Malone were not effective means of dealing with his drug addiction and
repeated criminal history. Accordingly, we find that Malone’s history of
criminal activity is indicative of his disregard for the law and provides ample
justification for the sentence imposed. Malone has failed to persuade this court
that his six-year sentence is inappropriate.
CONCLUSION
[12] In light on the foregoing, we conclude that Malone’s sentence is not
inappropriate in light of the nature of the offense and his character.
[13] Affirmed.
[14] Kirsch, J. and Pyle, J. concur
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