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

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 30 2019, 11:13 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
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-1040
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D05-1901-F6-97
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1040 | September 30, 2019 Page 1 of 8
Statement of the Case
[1] Robert S. Potter, II (“Potter”) appeals following his guilty plea to Level 6 felony
unlawful possession of a syringe1 and Class B misdemeanor possession of
marijuana.2 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 Cause 02D05-1812-F6-1515
(“Cause F6-1515”). Potter was released on bond from Cause F6-1515 on
December 15, 2018.
[4] Approximately one month later, Potter—while still out on bond—committed
the crimes alleged in this current case, Cause 02D05-1901-F6-97 (“Cause F6-
1
IND. CODE § 16-42-19-18.
2
IND. CODE § 35-48-4-11.
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97”). Specifically, on January 22, 2019, the State charged Potter 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, Potter pled guilty as charged in Cause F6-97, Cause F6-
1515, and Cause F6-95.3 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 F6-97,
Cause F6-1515, 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
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.
3
Potter did not include a copy of his plea agreement 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.
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[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
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).
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[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 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 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 F6-97, 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 and 180 days for his Class B misdemeanor
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1040 | September 30, 2019 Page 5 of 8
possession of marijuana conviction.4 The trial court also recommended that
Potter be placed in the Recovery While Incarcerated program. Potter now
appeals.5
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
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
4
In Cause F6-1515, 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. The trial court ordered that Potter’s sentence in Cause F6-1515 be served consecutively to his
sentence in Cause F6-97. 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.
5
Potter has also filed an appeal of his sentence in Cause F6-1515. The appellate cause number for that
appeal is 19A-CR-1050, and a memorandum decision in that appellate cause is being handed down on the
same day as this current appeal.
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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.
Here, Potter entered a guilty plea and was convicted of Level 6 felony unlawful
possession of a syringe and Class B misdemeanor possession of marijuana. 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.6 Thus, the trial court imposed a sentence below the maximum
allowed under the 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
Potter, who had a suspended Florida driver’s license, was driving a vehicle
without lights at 1:00 a.m. when the police pulled him over for a traffic stop.
The officers were familiar with Potter from prior dealings, and they used
caution because they knew that he carried a needle. After confirming that
6
The trial court also imposed a concurrent sentence of 180 days for his Class B misdemeanor conviction, but
he does not challenge this sentence as inappropriate.
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Potter had three active warrants, the officers removed him from his car and
secured him. Potter told the officer that he had syringes that he was planning to
use for heroin. He also told the officer that he had a drug addiction.
[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
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.
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