Erik T. Whitesell 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 Dec 17 2019, 6:24 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brandon E. Murphy Curtis T. Hill, Jr.
Muncie, Indiana Attorney General of Indiana
Steven Hosler
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Erik T. Whitesell, December 17, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-983
v. Appeal from the
Blackford Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. John Nicholas Barry, Judge
Trial Court Cause No.
05D01-1801-F5-2
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-983 | December 17, 2019 Page 1 of 10
Case Summary
[1] Following his guilty plea to Level 5 felony dealing in methamphetamine, Erik
T. Whitesell appeals, asserting that his six-year sentence is inappropriate.
[2] We affirm.
Facts & Procedural History
[3] On December 7, 2017, Lieutenant Cody Crouse of the Hartford City Police
Department was conducting a drug investigation at Whitesell’s residence. Lt.
Crouse observed Whitesell leave his residence at 7:55 a.m. and return at 12:07
p.m. Over the course of the next several hours, Lt. Crouse saw several vehicles
drive up to the residence and the occupants enter and exit the residence. He
also observed Whitesell leave and return one or more times. Lt. Crouse
obtained a search warrant for the residence and two vehicles, including a gold
Lincoln Town Car. Officers observed the Lincoln leave around 4 p.m. with
three occupants, including Whitesell, and initiated a stop. Lt. Crouse informed
Whitesell that he had a search warrant for the Lincoln and Whitesell’s
residence. Whitesell gave Lt. Crouse his keys to the residence, and Whitesell
told other officers that there was a syringe in front of his bed in the basement.
During the search of Whitesell’s residence, officers found various items
consistent with drug dealing, including syringes, marijuana, Fentanyl, and
other drug paraphernalia.
[4] Whitesell was taken to the police station and, after receiving Miranda warnings,
gave a statement. He admitted to using heroin, methamphetamine, and
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marijuana. He admitted that when he was seen leaving around 8:00 a.m. and
returning around noon, he had “made a trip,” which Lt. Crouse knew from
experience referred to a trip to purchase drugs. Appellant’s Appendix Vol. II at
191. When asked how much “dope” he acquired that day, Whitesell said
fifteen grams and indicated that he had already sold it. Id. Whitesell stated that
he deals in both heroin and methamphetamine and estimated that generally he
sold between half an ounce to an ounce per day. He told Lt. Crouse that he
makes “a lot” of money each week. Id. Lt. Crouse asked Whitesell how law
enforcement could “put [a] boot on the throat of this drug problem in Hartford
County,” and Whitesell stated, “to be honest, [w]hatever you do with me. I’m
probably single handed the only one bringing dope into this county in big
quantity.” Id. at 192. Whitesell was arrested and incarcerated at the Blackford
County Security Center.
[5] On January 5, 2018, the State charged Whitesell with Count 1, Level 5 felony
dealing in methamphetamine; Count 2, Level 5 felony dealing in
methamphetamine; Count 3, Level 6 felony unlawful possession of a syringe;
Count 4, Level 6 felony possession of methamphetamine; Count 5, Level 6
felony maintaining a common nuisance; Count 6, Class C misdemeanor
possession of paraphernalia; and Count 7, Class B misdemeanor possession of
marijuana.
[6] On or around May 14, 2018, Whitesell was released from the Blackford County
Security Center to Grace House Ministries, located in Shelby County, Indiana,
where he was to participate in substance abuse treatment. Pursuant to court
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order, he was to reside at Grace House, and at no other place, until such time as
he completed his treatment or Grace House terminated his participation. On
November 14, 2018, Whitesell executed a written plea agreement, under which
he would plead guilty to Level 5 felony dealing in methamphetamine and the
remaining charges would be dismissed. The plea agreement further provided
that sentencing would be left open but not to exceed four years. A presentence
investigation report was ordered, and the sentencing hearing was set for
December 17, 2018.
[7] On December 3, the Blackford County probation department filed a report with
the trial court stating that, during a November 30 presentence interview,
Whitesell admitted to a probation officer that on several occasions he had
signed out from Grace House and spent the weekend at his mother’s residence
in Blackford County. He was also observed on December 1 at a Blackford
County High School basketball game. These actions were in violation of the
court’s release of Whitesell to Grace House, and the trial court issued an arrest
warrant for Whitesell’s arrest and ordered him to appear before the court.
[8] On December 18, 2018, the trial court issued an order rejecting the November
plea agreement. The court stated that it was “obligated” to reject the plea
agreement, which capped his sentence at four years, for reasons including that
Whitesell left Grace House in contravention of the court’s order, Whitesell told
Lt. Crouse that he was probably the only person bringing drugs of that quantity
into Hartford County, and:
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C. That a plea agreement of the type presented here minimizes
the impact of the defendant’s involvement in the drug culture in
Blackford County, Indiana, and would further permit the
defendant to profit from his own wrong by attributing credit time
for a rehabilitation placement which was repeatedly violated by
the defendant during his period of placement at the Grace House
Rehabilitation Center.
Id. at 127.
[9] On April 9, 2019, Whitesell executed another plea agreement, under which he
would plead guilty to Level 5 felony dealing in methamphetamine with the
court “having full discretion over the entire sentence,” and the State would
dismiss the remaining charges. 1 Id. at 159. The court took the plea agreement
under advisement and set the matter for a hearing.
[10] At the sentencing hearing, Lt. Crouse testified about his interview with
Whitesell. Lt. Crouse understood Whitesell’s responses in the interview to
mean that Whitesell was responsible for bringing large quantities of drugs into
the county and that incarcerating Whitesell would stop the flow of drugs,
although Lt. Crouse acknowledged on cross-examination that the drug problem
still persisted despite Whitesell’s incarceration. Whitesell testified that at the
1
The record reflects that, prior to this April plea agreement, Whitesell had executed a second plea agreement
on March 21, 2019, under which he would plead guilty to Level 5 felony dealing in methamphetamine and
serve four years on home detention, and the State would dismiss the other charges. According to Appellant’s
Brief, the court rejected this agreement in open court.
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time of the interview he was intoxicated on heroin, methamphetamine, and
marijuana and had exaggerated his involvement in the drug trade.
[11] Whitesell testified that he was employed, working forty and sometimes fifty
hours per week. His employer submitted a letter on his behalf, stating that
Whitesell had been honest and forthright about his past mistakes and legal
issues and that he was a valuable team member and was dependable and
trustworthy. At the time of sentencing, Whitesell was living in an apartment
with his girlfriend and their one-year-old daughter. His landlord submitted a
letter in support of Whitesell, sharing that Whitesell was a reliable tenant, paid
rent on time, and performed labor or tasks around the apartment complex,
sometimes for pay and sometimes as a volunteer. Whitesell acknowledged his
addiction problems and testified that he had completed the Grace House drug
treatment program. He asked for the court to impose home detention and
monitoring and stated he would be willing to participate in any recommended
program. He told the court, “If it can make me a better person, a better parent,
a better spouse, I’m willing to do any of it.” Transcript at 14.
[12] The State presented evidence that while Whitesell completed a drug treatment
program at Grace House on November 2018, in March 21, 2019, Whitesell
relapsed following a court hearing and used heroin. He violated the court’s
order while at Grace House by using a night pass more than once to stay at his
mother’s residence. The presentence report admitted into evidence, with
attached probable cause affidavit, reflected that as a juvenile Whitesell had
adjudications for what would be Class D felony battery and Class D felony theft
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if committed by an adult. He had adult convictions in 2005 for Class D felony
theft, Class A misdemeanor criminal trespass. In 2006, he pled guilty to Class D
felony theft and in 2007, he pled guilty to Class A misdemeanor operating while
intoxicated endangering a person. In 2011, he was convicted for Class D felony
theft, and later that year, he was convicted of Class D felony receiving stolen
property. In 2013, Whitesell was arrested for burglary and conversion and
convicted of Class A misdemeanor conversion. In 2017, he pled guilty to Class
C misdemeanor operating a vehicle with a schedule I or II controlled substance
in a person’s body.
[13] The trial court considered as aggravating factors Whitesell’s prior criminal
history, his violation of the terms of his release to Grace House, and the impact
of the offense on the community. The court considered as mitigating the
hardship on Whitesell’s girlfriend and daughter through the loss of income and
a parent. The court imposed a six-year sentence in the Indiana Department of
Correction (DOC), recommending that Whitesell be placed in the Purposeful
Incarceration program at the DOC. Whitesell now appeals.
Discussion & Decision
[14] Whitesell contends that his sentence is inappropriate. Pursuant to Ind.
Appellate Rule 7(B), this Court “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.” Our Supreme Court has explained that the principal role of
appellate review should be to attempt to leaven the outliers, “not to achieve a
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perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225
(Ind. 2008). “‘[W]e must and should exercise deference to a trial court’s
sentencing decision, both 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.’” Rogers v.
State, 878 N.E.2d 269, 275 (Ind. Ct. App. 2007) (quoting Stewart v. State, 866
N.E.2d 858, 866 (Ind. Ct. App. 2007)), trans. denied. “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). Whitesell bears the burden of persuading us that his sentence is
inappropriate. Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans.
denied.
[15] When determining whether a sentence is inappropriate, the advisory sentence is
the starting point the Legislature has selected as an appropriate sentence for the
crime committed. Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006). Here,
Whitesell was convicted of one Level 5 felony, for which the sentencing range
is between one and six years, with the advisory being three years. See Ind. Code
§ 35-50-2-6. The trial court sentenced Whitesell to six years, recommending
that he be placed in the Purposeful Incarceration program at the DOC.
Whitesell urges that his “maximum sentence allowable” was not appropriate as
it failed to consider the progress he made since arrest in terms of home life,
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employment, and drug treatment, and he asks us to revise his sentence to five
years executed as a direct commitment on electronic monitoring home
detention. Appellant’s Brief at 9.
[16] We have recognized that “[t]he nature of the offense is found in the details and
circumstances of the commission of the offense and the defendant’s
participation.” Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). As to
the nature of the offense, the record shows that Whitesell acknowledged that he
played a significant role in the distribution of drugs in Blackford County,
including heroin and methamphetamine. We find no compelling evidence
portraying the nature of the offense “in a positive light,” nor does Whitesell
offer any argument in that regard. See Stephenson, 29 N.E.3d at 122. The record
before us does not warrant revision of Whitesell’s sentence based on the nature
of the offense.
[17] “The character of the offender is found in what we learn of the offender’s life
and conduct.” Croy, 953 N.E.2d at 664. Whitesell urges that he went to
treatment, complied with Grace House rules, obtained employment, and was a
reliable tenant and that his improved character demonstrates that his sentence
was inappropriate. While we commend the progress Whitesell appears to have
made, it is well settled that, “[w]hen considering the character of the offender,
one relevant factor is the defendant’s criminal history.” Johnson v. State, 986
N.E.2d 852, 857 (Ind. Ct. App. 2013). Whitesell’s criminal history began in
2002 and spanned to the current offense. In addition to two juvenile
adjudications that would have been Class D felonies if committed by an adult,
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he has been convicted as an adult of five felonies and four misdemeanor
offenses. He has violated probation on at least seven occasions, and he violated
the trial court’s order requiring him to remain at Grace House during his
treatment for substance abuse issues.
[18] The question under App. R. 7(B) is “not whether another sentence is more
appropriate” but rather “whether the sentence imposed is inappropriate.” Miller
v. State, 105 N.E.3d 194, 196 (Ind. Ct. App. 2018). Whitesell has not
established that his six-year sentence is inappropriate.
[19] Judgment affirmed.
Robb, J. and Bradford, J., concur.
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