Jason Bishop v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION FILED
Apr 08 2019, 10:28 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
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
Brandon E. Murphy Curtis T. Hill, Jr.
Cannon Bruns & Murphy Attorney General of Indiana
Muncie, Indiana
Samuel J. Dayton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jason Bishop, April 8, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2361
v. Appeal from the
Jay Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff. Brian D. Hutchison, Judge
Trial Court Cause No.
38C01-1803-F4-11
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2361 | April 8, 2019 Page 1 of 8
[1] Jason Bishop (“Bishop”) pleaded guilty to maintaining a common nuisance,1 a
Level 6 felony, and was sentenced to one year with two months on home
detention and ten months suspended to probation. Bishop appeals and raises
the following restated issue for our review: whether the trial court abused its
discretion when it entered judgment of conviction for maintaining a common
nuisance as a Level 6 felony rather than as a Class A misdemeanor.
[2] We affirm.
Facts and Procedural History
[3] At the time of Bishop’s offense, Bishop lived in his home with his girlfriend,2
Devonna Tilley (“Tilley”), and Tilley’s son G.B. Appellant’s App. Vol. II at 31,
38, 42. On March 13, 2018, G.B. confided to his middle school principal that
he was tired of his mother selling drugs. Id. at 38. G.B. explained that his
mother would weigh methamphetamine in front of him and did not try to hide
from him the fact that she sold methamphetamine. Id. G.B. went on to state
that he had observed Bishop and Tilley arguing earlier the same morning,
before G.B. left for school, about the places around the house where Tilley kept
1
See Ind. Code § 35-45-1-5(c).
2
It is unclear whether Bishop and Tilley were engaged or just in a romantic relationship at the time of
sentencing; when asked by the trial court during the sentencing hearing whether Tilley was Bishop’s
girlfriend, Bishop replied, “I mean, we were engaged but like since this has all happened things are kind of
rocky.” Tr. Vol. II at 19.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2361 | April 8, 2019 Page 2 of 8
her drugs. Id. G.B. also told stated that he had seen his mother sell
methamphetamine recently in the bathroom of Bishop’s home. Id.
[4] Later that day, the Dunkirk Police Department, Indiana State Police, Jay
County Sheriff’s Department, and Redkey Police Department executed a no-
knock search warrant for Bishop’s residence. Id. at 39-40. During the search,
law enforcement discovered a plastic box holding methamphetamine and other
items suspected of use in the consumption and dealing of controlled substances.
Id. at 40. Throughout the house, law enforcement also found scales, lighters,
razor blades, glass smoking devices, a grinder, rolling papers, a metal spoon, a
five-gram weight, syringes, plastic bags, some of which contained residue,
several different pills, and numerous handguns, among other items. Id. at 40-
41.
[5] Bishop was arrested and transported for interview with law enforcement.
During his interview, Bishop was asked whether he was concerned about what
the police may have found in his home, and he responded, “No, [i]t’s been
causing fights.” Id. at 42. Bishop told the police that he had recently informed
Tilley that she had to move out of his house and that she had begun packing her
things. Id. When Bishop was asked whether he knew why the police were at
his residence, he replied, “I assume that something got out at some point,” and
clarified, “well either she bought or sold to somebody or something.” Id.
Bishop informed the police that Tilley had been dealing methamphetamine
since “before Christmas.” Id.
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[6] On March 27, 2018, the State charged Bishop with dealing methamphetamine
as a Level 4 felony, maintaining a common nuisance as a Level 6 felony, and
unlawful possession of a syringe as a Level 6 felony. On July 19, 2018, Bishop
pleaded guilty to maintaining a common nuisance, and the State dismissed the
Level 4 felony dealing in methamphetamine and the Level 6 felony unlawful
possession of a syringe charges. Sentencing was left entirely to the discretion of
the trial court. On August 30, 2018, a sentencing hearing was held, and Bishop
argued that the trial court should enter judgment of conviction as a Class A
misdemeanor instead of a Level 6 felony because there were no aggravating
factors and several mitigating factors, including no criminal history, his guilty
plea saved the State resources, the crime caused no serious harm to persons or
property, and he was gainfully employed. Tr. Vol. II at 20-21. The trial court
questioned Bishop and asked him whether Tilley was still living in his home.
Id. at 18-19. Bishop stated that she was, but that she had nowhere to go. Id. at
19. Bishop also admitted that his sixteen-year-old son lived in his residence. Id.
at 16-17, 19. The trial court declined to enter judgment as a Class A
misdemeanor and sentenced Bishop to one year with two months on home
detention and ten months suspended to probation. Bishop now appeals.
Discussion and Decision
[7] Bishop argues that the trial court abused its discretion when it declined to enter
judgment of conviction as a Class A misdemeanor for his conviction of
maintaining a common nuisance when it had authority to do so. Bishop asserts
that this was an abuse of discretion because, at sentencing, the trial court found
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no aggravating factors and only mitigating factors. Specifically, he contends
that because he had no criminal history, his crime did not cause or threaten
serious harm to persons or property, he was gainfully employed, and he had a
son who was solely dependent on him, the trial court should have exercised its
discretion and entered judgment of conviction as a Class A misdemeanor.
[8] Pursuant to Indiana Code section 35-50-2-7(c), when a defendant has
committed a Level 6 felony, the trial court may enter judgment of conviction as
a Class A misdemeanor and sentence accordingly. Under that subsection, there
are exceptions where trial courts do not have discretion to do so and must enter
judgment of conviction as a Level 6 felony: (1) when a defendant has
committed a prior, unrelated felony for which judgment was entered as a
conviction of a Class A misdemeanor and the prior felony was committed less
than three years before the second felony was committed; (2) the underlying
offense is domestic battery under Indiana Code section 35-42-2-1.3; or (3) the
underlying offense is for child pornography under Indiana Code section 35-42-
4-4(d). Ind. Code § 35-50-2-7(c). In all other cases, the trial court has discretion
as to whether it enters the conviction as a misdemeanor rather than a felony.
Id. If a trial court decides to enter the conviction as a misdemeanor, it is
required to enter a specific reason for its decision into the record, but the statute
does not require a trial court to make such a detailed finding when it decides to
keep the conviction as a Level 6 felony.
[9] Because the use of the word “may” in Indiana Code section 35-50-2-7(c)
implies that the statute is permissive and grant discretion to the trial court. It
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does not create a right to the reduction of a Level 6 felony to a Class A
misdemeanor. See Alden v. State, 983 N.E.2d 186, 189 (Ind. Ct. App. 2013)
(citing Romine v. Gagle, 782 N.E.2d 369, 380 (Ind. Ct. App. 2003), trans. denied)
(noting that the trial court was free to deny a petition for reduction of the
conviction from a felony as long as doing so was not an abuse of discretion),
trans. denied. Therefore, we review the exercise of such a discretionary decision
for abuse of discretion. Id. A trial court abuses its discretion when its decision
is clearly against the logic and effect of the facts and circumstances before it. Id.
[10] Here, although the trial court found that there were several mitigating factors,
other evidence supports the trial court’s decision to enter judgment of
conviction as a Level 6 felony and not as a Class A misdemeanor. Bishop
pleaded guilty to maintaining a common nuisance, which is “knowingly or
intentionally maintain[ing] a building or structure . . . for the unlawful use,
manufacture, keeping, sale, delivery, or financing the delivery of controlled
substances or items of drug paraphernalia.” Appellant’s App. Vol. II at 6, 23-25.
This was based on evidence that Tilley, Bishop’s live-in girlfriend, kept drugs
and other paraphernalia in his home and was involved in drug activity inside of
Bishop’s home, and Bishop was aware of this activity and the presence of drugs
in his home. Tr. Vol. II at 17, 21. Moreover, at the sentencing hearing, Bishop
testified that Tilley still lives with him in his home. Id. at 17-18, 19. The trial
court questioned Bishop and twice asked him whether he thought it was a good
idea that Tilley was still in his home. Id. at 19. Bishop responded that “[R]ight
now [Tilley] has no where [sic] to go . . .” and that it is in his nature to try to
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“help out.” Id. The evidence showed that in the past Bishop had tolerated
Tilley keeping drugs in the home and her drug activity within his home, which
is what led to Bishop’s conviction. Appellant’s App. Vol. II at 38, 42. Although
Bishop testified that he had instituted a policy that Tilley was no longer allowed
to have guests or drugs in his house, it was reasonable for the trial court to
believe that Tilley’s old activities may continue while she is living in Bishop’s
home. Trial courts are free to decline to reduce a conviction from a felony to a
misdemeanor as long as the “denial is supported by the logic and effect of the
facts.” Alden, 983 N.E.2d at 189. Here, the evidence showed that Bishop’s
conviction had not prompted him to take any steps to change his living
situation, and the trial court could reasonably have concluded that Bishop’s
failure to do so in response to what should have been a wakeup call justified the
entry of a Level 6 felony rather than a Class A misdemeanor.
[11] Although the trial court found mitigating factors, including Bishop’s lack of a
criminal history and his employment, it was not required to enter conviction as
a misdemeanor rather than a felony. Ind. Code § 35-50-2-7(c). While Bishop
did not have a criminal history, his conduct following his guilty plea in allowing
Tilley to continue to live in his home indicates that he has taken very few steps
toward making sure similar offenses do not occur in the future. Based on the
trial court’s questioning of Bishop regarding Tilley living with him, it appeared
to be concerned with such a future outcome. We conclude that the trial court
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did not abuse its discretion when it entered judgment of conviction as a Level 6
felony and not as a Class A misdemeanor.3
[12] Affirmed.
Vaidik, CJ., and Altice, J., concur.
3
We note that, although the trial court did not reduce Bishop’s conviction to a Class A misdemeanor at the
time of sentencing pursuant to Indiana Code section 35-50-2-7(c), there exists a procedure under subsection
(d) through which Bishop can petition the trial court to convert his Level 6 felony conviction to a Class A
misdemeanor if certain circumstances are found to exist in the future.
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