Robert S. Potter, II v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Sep 30 2019, 11:22 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Zachary A. Witte Curtis T. Hill, Jr.
Locke & Witte Attorney General of Indiana
Fort Wayne, Indiana
Courtney Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert S. Potter, II, September 30, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1050
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D05-1812-F6-1515
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1050 | September 30, 2019 Page 1 of 9
Statement of the Case
[1] Robert S. Potter, II (“Potter”) appeals following his guilty plea to Level 6 felony
unlawful possession of a syringe,1 Class A misdemeanor resisting law
enforcement,2 Class C misdemeanor possession of paraphernalia.3 He argues
that the two-year sentence imposed for his Level 6 felony conviction is
inappropriate. Concluding that Potter has failed to show that his sentence is
inappropriate, we affirm his sentence.
[2] We affirm.
Issue
Whether Potter’s sentence is inappropriate pursuant to Indiana
Appellate Rule 7(B).
Facts
[3] In December 2018, the State charged Potter with Level 6 felony unlawful
possession of a syringe, Class A misdemeanor resisting law enforcement, Class
C misdemeanor possession of paraphernalia in this current case, Cause 02D05-
1812-F6-1515 (“Cause F6-1515”). Potter was released on bond from Cause F6-
1515 on December 15, 2018.
1
IND. CODE § 16-42-19-18.
2
IND. CODE § 35-44.1-3-1.
3
I.C. § 35-48-4-8.3.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1050 | September 30, 2019 Page 2 of 9
[4] Approximately one month later, the State charged Potter with committing
additional crimes while out on bond. Specifically, on January 22, 2019, the
State charged Potter, under Cause 02D05-1901-F6-97 (“Cause F6-97”), with
Level 6 felony unlawful possession of a syringe and Class B misdemeanor
possession of marijuana. Two days later, the State charged Potter with Level 6
felony unlawful possession of a syringe in Cause 02D05-1901-F6-95 (“Cause
F6-95”).
[5] On February 4, 2019, he pled guilty as charged in Cause F6-1515, Cause F6-97,
and Cause F6-95.4 The trial court took his pleas under advisement and placed
Potter into the Allen County Drug Court Treatment Program (“drug court
program”). On February 25, 2019, Potter failed to appear in court for a drug
court program compliance hearing. Thereafter, the trial court revoked Potter’s
bond and issued a warrant for his arrest. Potter was also terminated from the
drug court program.
[6] In April 2019, the trial court held a joint sentencing hearing for Cause F6-1515,
Cause F6-97, and Cause F6-95. At the time of the sentencing hearing, Potter
had a pending cause, Cause 02D04-1903-F6-266, in which he had been charged
with Level 6 felony unlawful possession of a syringe, Class A misdemeanor
resisting law enforcement, Class B misdemeanor false informing. He also had
4
Potter did not include a copy of his plea agreements in his Appendix. Additionally, the transcript of
Potter’s guilty plea hearing is not included in the record on appeal because he did not request transcription of
it when he filed his notice of appeal.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1050 | September 30, 2019 Page 3 of 9
an active warrant from Tennessee for probation violations in three separate
causes. Potter admitted that he was addicted to drugs and that he had used
heroin and methamphetamine.
[7] The presentence investigation report (“PSI”) revealed that thirty-six-year-old
Potter has a criminal history dating back to 2001 when he was nineteen years
old, and it includes thirty-five convictions spanning three states. His felony
convictions include the following: aggravated assault with a deadly weapon
(2002 in Florida); possession of cocaine (2007 in Florida); drug possession of a
controlled substance (2009 in Florida); sale of a schedule II drug (2010 in
Tennessee); and possession with intent to sell (2010 in Tennessee). Potter also
amassed the following misdemeanor convictions: theft (2001 in Florida);
culpable negligence with a motor vehicle (2002 in Florida); illegal possession of
alcohol by a minor (2002 in Florida); resisting/obstructing an officer (2002 in
Florida); criminal impersonation (2004 in Tennessee); reckless driving (2004 in
Florida); evading arrest (2004 in Tennessee); theft by shoplifting (2006 in
Tennessee); possession of drug paraphernalia (2006 in Tennessee); theft (2007
in Florida); operating while driver’s license suspended (2007 in Florida); three
different convictions for possession of drug paraphernalia (all three in 2007 in
Florida); driver’s license suspended/revoked (2007 in Florida); theft (2008 in
Florida); loitering (2009 in Florida); theft (2010 in Tennessee); invasion of
privacy (2010 in Indiana); domestic assault (2010 in Tennessee); simple
possession/casual exchange (2010 in Tennessee); possession of drug
paraphernalia (2010 in Tennessee); driving while suspended (2010 in
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1050 | September 30, 2019 Page 4 of 9
Tennessee); theft (2012 in Tennessee); possession of a legend drug (2012 in
Tennessee); driving while license is cancelled (2012 in Tennessee); criminal
trespass (2014 in Tennessee); and aggravated criminal trespass (2014 in
Tennessee).
[8] When sentencing Potter, the trial court found his guilty plea, acceptance of
responsibility, and remorse to be mitigating circumstances. When discussing
aggravating circumstances, the trial court stated:
The Court does find as an aggravating circumstance your prior
criminal record with failed efforts at rehabilitation covering a
period of time from 2001 to 2018; you are a multi-state offender
in Indiana, Tennessee, and Florida; you have 29 misdemeanor
convictions and six prior felony convictions. You’ve been given
short jail sentences, longer jail sentences, active adult probation,
community control, unsupervised probation, multiple attempts at
treatment, and then the Drug Court Program. In [C]ause F6-97,
you were on bond [from Cause F6-1515] at the time you
committed that offense. I note that you’ve got active warrants
pending in Tennessee for probation violations and there are
pending charges filed here in Allen Superior Court. . . . I agree
with your attorney . . . that it’s a miracle that you’re here. You
are 36 years old; according to your letter, you have overdosed
five times, three of which required professional medical
intervention, one with hospitalization. We take folks in the Drug
Court Program, Mr. Potter, as we find them. Unfortunately, we
found you, you came into the Drug Court Program, and you
were not ready for Drug Court, and that’s really unfortunate
because that was really your best opportunity to get clean and
stay clean, and I hope you’re ready now. I mean, you weren’t
ready when you started. I think your attorney is correct in saying
you need to sit down for a real long time and let recovery take
over your life, because if it doesn’t, Robert, I don’t want to read
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1050 | September 30, 2019 Page 5 of 9
your name in the obituaries and that’s where it’s gonna end up if
you cannot get this under control. You have the ability to do
that. You’re not a failure.
(Tr. Vol. 2 at 9-10). For Cause F6-1515, the cause on appeal, the trial court
imposed concurrent terms of two (2) years for Potter’s Level 6 felony unlawful
possession of a syringe conviction, one (1) year for his Class A misdemeanor
resisting law enforcement conviction, and sixty (60) days for his Class C
misdemeanor possession of paraphernalia conviction. 5 The trial court also
recommended that Potter be placed in the Recovery While Incarcerated
program. Potter now appeals.6
Decision
[9] Potter argues only that his sentence for his Level 6 felony unlawful possession
of a syringe is inappropriate. He asks this Court to decrease his Level 6 felony
sentence to a term of one year.
[10] We may revise a sentence if it is inappropriate in light of the nature of the
offense and the character of the offender. Ind. Appellate Rule 7(B). The
5
In Cause F6-97, the trial court imposed concurrent terms of two (2) years for Potter’s Level 6 felony
unlawful possession of a syringe conviction and 180 days for his Class B misdemeanor possession of
marijuana conviction. The trial court ordered that Potter’s sentence in Cause F6-97 be served consecutively
to his sentence in Cause F6-1515. For Cause F6-95, the trial court imposed a two (2) year sentence for
Potter’s Level 6 felony unlawful possession of a syringe conviction and ordered it to be served concurrently to
Cause F6-97.
6
Potter has also filed an appeal of his sentence in Cause F6-97. The appellate cause number for that appeal
is 19A-CR-1040, and a memorandum decision in that appellate cause is being handed down on the same day
as this current appeal.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1050 | September 30, 2019 Page 6 of 9
defendant has the burden of persuading us that his sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a
Rule 7(B) review “should be to attempt to leaven the outliers, and identify some
guiding principles for trial courts and those charged with improvement of the
sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “Appellate Rule 7(B)
analysis is not to determine whether another sentence is more appropriate but
rather whether the sentence imposed is inappropriate.” Conley v. State, 972
N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted),
reh’g denied.
[11] When determining whether a sentence is inappropriate, we acknowledge that
the advisory sentence “is the starting point the Legislature has selected as an
appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.
In this cause, Potter entered a guilty plea and was convicted of Level 6 felony
unlawful possession of a syringe, Class A misdemeanor resisting law
enforcement, Class C misdemeanor possession of paraphernalia. A Level 6
felony has a sentencing range of six (6) months to two and one-half (2½) years
with an advisory sentence of one (1) year. I.C. § 35-50-2-7(b). The trial court
imposed a sentence of two (2) years for Potter’s Level 6 felony conviction.7
Thus, the trial court imposed a sentence below the maximum allowed under the
7
The trial court also imposed concurrent terms of one year for his Class A misdemeanor conviction and sixty
days for his Class C misdemeanor conviction, but he does not challenge these sentences as inappropriate.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1050 | September 30, 2019 Page 7 of 9
statute. Additionally, the trial court recommended that Potter be placed in a
drug treatment program while incarcerated.
[12] Turning first to the nature of Potter’s unlawful possession of a syringe offense,
we note that the probable cause affidavit attached to the PSI indicates that a
police officer encountered Potter at the home of a person who was on home
detention. While the officer was doing a home detention check of the
residence, he saw Potter quickly put something into his front pants pocket. The
officer patted down Potter and discovered a pipe used to smoke
methamphetamine. Potter pulled away from the officer and attempted to grab
the pipe from his pocket. Potter then struggled with the officer when being
secured in handcuffs. As the officer continued his pat down of Potter, he found
a syringe in Potter’s pocket, and Potter told the officer that he had used it to
inject himself with heroin.
[13] Turning to Potter’s character, we note that his poor character is revealed by an
extensive criminal history that spans decades and includes multiple probation
revocations. His criminal history includes twenty-nine misdemeanor and six
felony convictions. Potter was convicted of Level 6 felony unlawful possession
of a syringe in each of the three causes involved in his sentencing hearing, and,
at the time of sentencing, he had a pending charge for Level 6 felony unlawful
possession of a syringe conviction in another cause. Potter admitted that he
was addicted to drugs. Additionally, the PSI shows that Potter, during various
periods of his life, has used alcohol, marijuana, acid, ecstasy, cocaine, heroin,
and methamphetamine. Indeed, his use of many of these drugs included daily
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1050 | September 30, 2019 Page 8 of 9
use for multiple years. The trial court gave Potter the opportunity to participate
in the drug court program, but he squandered that chance. Potter’s criminal
history and current offenses show that he has a disregard for the law.
[14] Potter has not persuaded us that his two-year sentence for his Level 6 felony
unlawful possession of a syringe conviction is inappropriate. Therefore, we
affirm the sentence imposed by the trial court.
[15] Affirmed.
Robb, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1050 | September 30, 2019 Page 9 of 9