Levi E. Gross v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Aug 11 2015, 10:10 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
Donald E.C. Leicht Gregory F. Zoeller
Kokomo, Indiana Attorney General of Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Levi E. Gross, August 11, 2015
Appellant-Defendant, Court of Appeals Case No.
34A02-1501-CR-013
v. Appeal from the Howard Superior
Court 1
State of Indiana, Cause No. 34D01-1406-FB-431
Appellee-Plaintiff
The Honorable William C. Menges,
Judge.
Friedlander, Judge.
[1] Levi Gross was charged with dealing in methamphetamine, a class B felony
(Count I), possession of chemical reagents or precursors with intent to
manufacture a controlled substance, a class D felony (Count II), and theft, a
Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-013 | August 11, 2015 Page 1 of 5
class D felony (Count III). Pursuant to a plea agreement, Count I was
dismissed and Gross pleaded guilty to Counts II and III. The court sentenced
him to the Department of Correction (DOC) for consecutive three-year terms,
resulting in an aggregate sentence of six years. On appeal, Gross contends that
his sentence is inappropriate in light of the nature of the offenses and his
character.
We affirm.
[2] The facts as admitted by Gross are that on the morning of June 5, 2014, the
town marshal received a tip that Gross and his wife Rebekah were running a
methamphetamine lab in their home. Acting on the tip, law enforcement
visited the Grosses’ residence and Rebekah consented to a search of the
premises. The search produced a substantial amount of drug-related evidence.
Law enforcement found in the garage, a lithium battery, punctured solvent
cans, Prestone starting fluid, a half-empty bottle of drain cleaner, grinder blades
with white residue, a gas mask, and two glass smoking devices that tested
positive for marijuana. In a shed, officers found a green garden hose and
coolers; both items tested positive for ammonia gas. Grow lights, ballasts,
fertilizer, plastic potting containers, a marijuana plant, and other marijuana
paraphernalia were also in the house.
[3] Mr. Gross arrived during the search. When officers asked Gross about their
findings, he said, “Everything here is mine.” Appellant’s Appendix at 92. Gross
admitted to acting alone in stealing the anhydrous ammonia from a nearby
Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-013 | August 11, 2015 Page 2 of 5
farm tank, and requested that law enforcement leave his marijuana grow lights
and his book on cultivating marijuana.
[4] On December 17, 2014, Gross pleaded guilty to Counts II and III as set out
above. At the sentencing hearing, Gross argued that the trial court should
sentence him pursuant to the Probation Department’s recommendation.1 The
trial court, however, sentenced Gross to consecutive terms of three years for
each count. The court stated, “I will recommend to the [DOC] that the
defendant be placed in Therapeutic Community. Upon successful completion
of Therapeutic Community the court will reserve the right to modify the
defendant’s sentence.” Transcript at 22. On appeal, Gross contends that his six-
year aggregate sentence is inappropriate and requests that we sentence him
according to the recommendation made by the Probation Department.
[5] “We have the constitutional authority to revise a sentence if, after careful
consideration of the trial court’s decision, we conclude the sentence is
inappropriate in light of the nature of the offense and character of the offender.”
Davis v. State, 971 N.E.2d 719, 725 (Ind. Ct. App. 2012). “Sentencing review
under Appellate Rule 7(B) is very deferential to the trial court.” Schaadt v. State,
30 N.E.3d 1, 4 (Ind. Ct. App. 2015). A defendant has the burden of persuading
1
The Probation Department recommended that Gross be ordered to the DOC for three years- two years
executed on in-home detention with appropriate credit time given, and one year suspended to be served on
supervised probation. Probation also recommended that Gross attend, complete, and pay for an alcohol and
drug program and pay restitution to the victim.
Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-013 | August 11, 2015 Page 3 of 5
the court that his or her sentence is inappropriate. Davis v. State, 971 N.E.2d
719.
[6] Sentences for class D felonies range from six months to three years, with an
advisory sentence of one and one-half years. See Ind. Code Ann. § 35-50-2-7
(West, Westlaw current with all 2015 First Regular Session of the 119th
General Assembly legislation). Here, Gross was sentenced to maximum
consecutive sentences. To determine whether the sentence is inappropriate, we
look at the nature of the offense and Gross’s character. Ind. App. R. 7; Davis v.
State, 971 N.E.2d 719.
[7] We turn first to the nature of the offenses. Gross stole a tank of anhydrous
ammonia from a local farmer, which he admittedly planned to sell for $500-
$1000 per gallon. At Gross’s home, officers found several tools and ingredients
commonly used to manufacture methamphetamine. Although Gross received
the maximum sentence, the State dismissed Count I, dealing in
methamphetamine, which would have potentially subjected Gross to twenty
additional years. See I.C. § 35-50-2-5 (West, Westlaw current with all 2015
First Regular Session of the 119th General Assembly legislation).
[8] With respect to Gross’s character we observe, like the trial court, that his
criminal history is particularly aggravating. “The significance of a criminal
history in assessing a defendant’s character and an appropriate sentence varies
based on the gravity, nature, and number of prior offenses in relation to the
current offense.” Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007).
Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-013 | August 11, 2015 Page 4 of 5
[9] Gross’s actions in the present case are a continuation of a troubling pattern for
him. He has one misdemeanor conviction for public intoxication and three
felony convictions for possession of methamphetamine, maintaining a common
nuisance, and dealing in methamphetamine. Despite past incarceration,
probation, and treatment, he has remained undeterred in his criminal drug
behavior. Indeed, Gross acknowledged as much during the sentencing hearing:
I think it is very unfortunate that I, having known better, still decided
to make the wrong choices surrounding this matter and in private
matters of Rebekah[‘s] and [my] life. It was very poor in character for
me to think that stealing and getting high was going to solve any of our
problems. I [realize] that there is no honest living in that type of
thinking and behavior.
Appellant’s Appendix at 72.
[10] The Indiana Appellate Rule 7(b) requires Gross to demonstrate that his
sentence is inappropriate in light of both the nature of his offenses and his
character. He has not done so; therefore, we conclude that his sentence to
consecutive terms of three years for each count is not inappropriate.
[11] Judgment affirmed.
[12] Riley, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-013 | August 11, 2015 Page 5 of 5