Patrick D. Keith v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Aug 24 2015, 9:30 am
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
Andrew B. Arnett Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Patrick D. Keith, August 24, 2015
Appellant-Defendant, Court of Appeals Cause No.
73A05-1412-CR-575
v. Appeal from the Shelby Circuit
Court
State of Indiana, The Honorable Charles D.
Appellee-Plaintiff. O’Connor, Judge
Trial Court Cause No.
73C01-1301-FD-13 and
73C01-1304-FB-27
Barnes, Judge.
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Case Summary
[1] Patrick Keith appeals his aggregate sentence of twenty and one-half years, three
of which were suspended to probation, for Class B felony possession of
methamphetamine, Class D felony possession of methamphetamine, Class D
felony possession of a controlled substance, Class A misdemeanor possession of
paraphernalia, and for being an habitual substance offender. We affirm.
Issue
[2] Keith raises one issue, which we restate as whether his sentence is
inappropriate.
Facts
[3] In January 2013, police executed a writ of attachment on Keith in Shelby
County for his failure to pay child support. During a pat down of Keith, the
arresting officer found a glass pipe, pills, and a baggie containing
methamphetamine in his pockets. The State charged Keith with Class D felony
possession of methamphetamine, Class D felony possession of a controlled
substance, and Class A misdemeanor possession of paraphernalia in Cause No.
73C01-1301-FD-13 (“FD-13”). After Keith was released on bond, an
information alleging he was an habitual substance offender was filed.
[4] In April 2013, while out on bond, police were investigating the purchase of
pseudoephedrine by a woman who indicated that she traded Keith
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pseudoephedrine for methamphetamine, when they encountered Keith outside
of a family housing complex. During the encounter, Keith took a baggie
containing methamphetamine from his pocket and gave it to the officers. The
State charged Keith with Class B felony possession of methamphetamine and
alleged that he was an habitual substance offender in Cause No. 73C01-1304-
FB-27 (“FB-27”).
[5] Keith pled guilty to all the charges and he admitted to the habitual substance
offender allegations in an open plea. The trial court considered as aggravating
Keith’s criminal history and the fact that he was on bond when he committed
the FB-27 offense. The trial court considered Keith’s guilty plea as mitigating.
[6] For FD-13, the trial court sentenced Keith to two and one-half years on each of
the Class D felony charges and to one year on the misdemeanor charge. The
trial court enhanced the possession of methamphetamine charge by three years
for Keith’s status as an habitual substance offender and ordered the sentences to
be served concurrently for a total executed sentence of five and one-half years.
[7] For FB-27, the trial court sentenced Keith to twelve years, with three years
suspended to probation and enhanced by three years for his habitual substance
offender status, for a sentence of fifteen years executed and three years
suspended to probation. The trial court ordered the sentence to be served
consecutive to the FD-13 sentence for a total of twenty and one-half years, with
seventeen and one half years executed and three years suspended. Keith now
appeals.
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Analysis
[8] Keith argues that his sentence is inappropriate. Indiana Appellate Rule 7(B)
permits us to 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. Although Appellate
Rule 7(B) does not require us to be “extremely” deferential to a trial court’s
sentencing decision, we still must give due consideration to that decision.
Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also
understand and recognize the unique perspective a trial court brings to its
sentencing decisions. Id. “Additionally, a defendant bears the burden of
persuading the appellate court that his or her sentence is inappropriate.” Id.
[9] The principal role of Appellate 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). We “should focus on the forest—the aggregate sentence—rather
than the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id. Whether a sentence is inappropriate
ultimately turns on the culpability of the defendant, the severity of the crimes,
the damage done to others, and myriad other factors that come to light in a
given case. Id. at 1224.
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[10] Regarding the nature of the offenses, we acknowledge that Keith’s offenses are
not particularly egregious. However, Keith did commit the FB-27 offense while
out on bond from the FD-13 offense. Further, although he denied making
methamphetamine, Keith acknowledged that he was providing the ingredients
needed to make methamphetamine in exchange for the drug. Also, the
probable cause affidavit indicates that he engaged the help of others to obtain
the ingredients.
[11] Moreover, Keith’s character, particularly his criminal history, supports his
sentence notwithstanding his guilty pleas. Twenty-nine-year-old Keith’s
criminal history includes a juvenile adjudication for what would have been
misdemeanor possession of marijuana and adult criminal convictions for Class
D felony causing serious bodily injury while operating a motor vehicle while
intoxicated, Class A misdemeanor possession of marijuana, Class B
misdemeanor disorderly conduct, two counts of Class D felony resisting law
enforcement, Class B misdemeanor criminal mischief, Class B misdemeanor
public intoxication that endangers the person’s life, Class A misdemeanor
criminal trespass, and Class D felony possession of a controlled substance. A
review of his numerous criminal charges he faced over the years shows that
most of the offenses involved alcohol or drugs. Further, Keith was given the
benefit of probation three times in the past, and it was revoked every time.
Under these circumstances, we are not convinced that Keith’s aggregate
sentence of twenty and one-half years, with three years suspended, is
inappropriate.
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Conclusion
[12] Keith has not established that his sentence is inappropriate in light of the nature
of the offenses and the character of the offender. We affirm.
[13] Affirmed.
Riley, J., and Bailey, J., concur.
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