Antonio Brown v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Aug 11 2015, 8:13 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
Leanna Weissmann Gregory F. Zoeller
Lawrenceburg, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Antonio Brown, August 11, 2015
Appellant-Defendant, Court of Appeals Cause No.
15A05-1501-CR-8
v. Appeal from the Dearborn Superior
Court.
State of Indiana, The Honorable Sally Blankenship,
Judge.
Appellee-Plaintiff.
Cause No. 15D02-1311-FA-29
Riley, Judge.
Court of Appeals of Indiana | Memorandum Opinion | 15A05-1501-CR-8 | August 11, 2015 Page 1 of 6
STATEMENT OF THE CASE
[1] Appellant-Defendant, Antonio Brown (Brown), appeals his forty-year sentence
after pleading guilty to dealing in a narcotic drug, a Class A felony, Ind. Code §
35-48-4-1(a)(2) (2013).
[2] We affirm.
ISSUE
[3] Brown raises one issue on appeal, which we restate as: Whether Brown’s
sentence is inappropriate in light of the nature of the offense and his character.
FACTS AND PROCEDURAL HISTORY
[4] On November 19, 2014, during a routine traffic stop, State Police Trooper
Brian Earls of the Dearborn County Sherriff’s Department (Trooper Earls),
found a half ounce of heroin in Dillon Moore’s (Moore) vehicle. Hoping for
leniency, Moore informed Trooper Earls that he could get more drugs from his
source, an individual known as “G.,” who was later identified as Brown.
(Transcript p. 42). According to Moore, Brown drove a blue Volkswagen
Passat with Ohio license plates, sold drugs at the Hollywood Casino’s parking
lot, and on occasion, he would be accompanied by his girlfriend during the drug
transactions.
[5] Two days later, in the presence of Detectives Shane McHenry (Detective
McHenry) and Carl Pieczonka (Detective Pieczonka), Moore telephoned
Court of Appeals of Indiana | Memorandum Opinion | 15A05-1501-CR-8 | August 11, 2015 Page 2 of 6
Brown and set up a meeting to buy more drugs from Brown. Brown agreed and
suggested meeting at the usual location, the Hollywood Casino parking lot.
Detective Pieczonka and Moore waited inside Moore’s vehicle for Brown’s
arrival. Moments later, Brown and his girlfriend arrived in a blue Volkswagen
Passat with Ohio license plates. Brown pulled up near Moore’s vehicle, and
Moore exited his vehicle and got inside Brown’s vehicle. The two exchanged
12.55 grams of heroin for $1,400. Moore then returned to his vehicle and
handed Detective Pieczonka a plastic bag that contained the heroin. Once
Detective Pieczonka notified Detective McHenry and other units that the
exchange had occurred, they proceeded to stop Brown’s vehicle. $900 of the
buy money was located in Brown’s girlfriend’s purse, and the remaining $500
was located inside Brown’s pants pocket.
[6] On November 22, 2013, the State charged Brown with Count I, dealing in a
narcotic drug, a Class A felony, and Count II, conspiracy to commit dealing in
a narcotic drug, a Class A felony. On November 5, 2014, pursuant to a plea
agreement entered with the State, Brown pled guilty to Count I, dealing in a
narcotic drug, a Class A felony, and the State agreed to dismiss Count II.
Sentencing was left open to the trial court’s discretion. On December 1, 2014, a
sentencing hearing was held and the trial court identified Brown’s extensive
criminal history as an aggravating factor. In mitigation, the trial court observed
that Brown pled guilty but all the same, it recognized that the State had a strong
case against Brown. Accordingly, the trial court sentenced Brown to forty years
in the Department of Correction, with five years suspended to probation.
Court of Appeals of Indiana | Memorandum Opinion | 15A05-1501-CR-8 | August 11, 2015 Page 3 of 6
[7] Brown now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION1
[8] Brown contends that his forty-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
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.
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 Brown’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.
Court of Appeals of Indiana | Memorandum Opinion | 15A05-1501-CR-8 | August 11, 2015 Page 4 of 6
[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). For his Class A felony dealing in a narcotic drug, Brown
faced a sentencing range of twenty to fifty years, with the advisory sentence
being thirty years. Here, the trial court imposed a forty-year sentence.
[10] As to the nature of the offense, the record reveals that Brown sold 12.55 grams
of heroin to Moore for $1,400. In his brief, Brown attempts to reduce the
significance of the amount of heroin by comparing it to the size of a Hershey’s
chocolate bar. We note the amount of heroin that Brown was trafficking was
four times greater than the 3-gram requirement for the Class A felony offense.
[11] As to Brown’s character, the record shows that he has an extensive criminal
history. Brown’s criminal record dates back to 2000, and it includes twenty-five
contacts with law enforcement in Ohio. In addition, the PSI reveals that Brown
has had multiple probation violations which show his disdain for authority and
unwillingness to comply with the law. Furthermore, this is not Brown’s first
drug offense. In 2003, 2006, and 2010, Brown was arrested and charged in
Ohio for trafficking drugs.
[12] Brown claims that he is remorseful and that he takes full responsibility for his
actions, yet, at the sentencing hearing and in the PSI, he blames others for his
actions. Specifically, at the sentencing hearing, Brown claimed that he was
doing a favor for a friend when he delivered the drugs. Brown then claimed
that he was lured by law enforcement, and that the sting operation which led to
Court of Appeals of Indiana | Memorandum Opinion | 15A05-1501-CR-8 | August 11, 2015 Page 5 of 6
his arrest was “a tremendous waste of resources[,] not to mention the burden it
places on [] taxpayer[s] who are exposed to the potentially hundreds of
thousands of dollars that [] will [] cost to incarcerate me.” (Tr. p. 39). Brown’s
version of events in the PSI was that he first came to Indiana because his friend
was in trouble. Brown further stated that on the day he was arrested for the
instant offense, he and Moore were inside his vehicle talking about computers
and that Moore gave him money. Once Moore got out of his vehicle, the police
arrested him and he felt like Moore “threw him under the bus” and that it was a
set up. (Appellant’s App. p. 170).
[13] Despite his numerous prior contacts with the criminal justice system in Ohio,
Brown has not reformed his criminal behavior. Here, we cannot say that the
forty-year sentence imposed by the trial court is inappropriate in light of the
nature of the offense and the character of the offender.
CONCLUSION
[14] Based on the foregoing, we conclude that Brown’s sentence is not inappropriate
in light of the nature of the offense and his character.
[15] Affirmed.
[16] Friedlander, J. and Brown, J. concur
Court of Appeals of Indiana | Memorandum Opinion | 15A05-1501-CR-8 | August 11, 2015 Page 6 of 6