Dallas Preston v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 10 2019, 6:07 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jennifer L. Koethe Curtis T. Hill, Jr.
La Porte, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dallas Preston, January 10, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-581
v. Appeal from the La Porte Circuit
Court
State of Indiana, The Honorable Thomas Alevizos,
Appellee-Plaintiff Judge
Trial Court Cause No.
46C01-1706-F3-512
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-581 | January 10, 2019 Page 1 of 4
[1] Dallas Preston appeals the sentence imposed by the trial court after he pleaded
guilty to Level 3 felony aggravated battery. Preston argues that the trial court
erred by failing to find two proffered mitigating factors. Finding no error, we
affirm.
Facts
[2] On June 4, 2017, Preston and some friends went out after work. They drank
heavily and used cocaine. They met Maurice Edmond at a bar and took him
with them to another party. Preston, Edmond, and Dusty Buren left the party
together in Preston’s vehicle. Preston blacked out and crashed the vehicle into
a guardrail. At that point, Preston and Buren exited the vehicle and, in a blind
rage, beat Edmond. Preston hit, struck, stomped, and kicked Edmond in the
head. He injured Edmond’s face, caused significant head trauma, and fractured
Edmond’s left eye socket, resulting in ocular nerve damage with full or partial
loss of eyesight in the left eye. Preston and Buren then fled the scene, leaving
Edmond on the ground.
[3] On June 7, 2017, Preston was charged with Level 3 felony aggravated battery.
On December 1, 2017, Preston pleaded guilty as charged pursuant to a written
plea agreement. At the February 2, 2018, sentencing hearing, Preston asked
that the trial court find his history of substance abuse and mental illness as
mitigating factors. The trial court declined, finding Preston’s criminal history
as an aggravator and his guilty plea as a mitigator. The trial court imposed an
eleven-year sentence on Preston, who now appeals.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-581 | January 10, 2019 Page 2 of 4
Discussion and Decision
[4] Preston’s sole argument on appeal is that the trial court should have found his
history of substance abuse and mental illness to be mitigating factors.1 Preston
has the burden of demonstrating that the mitigating evidence is both significant
and clearly supported by the record. McElfresh v. State, 51 N.E.3d 103, 112 (Ind.
2016). Even if we find error, we will affirm if we are persuaded that the trial
court would have imposed the same sentence had it considered the proffered
mitigators. Id.
[5] The record does, indeed, show that Preston has a long and serious history of
substance abuse. He has been addicted to alcohol since the age of eight, has
regularly used marijuana since the age of thirteen, has been a cocaine addict
since he was nineteen, and has been addicted to methamphetamine since the
age of twenty-four. He has also abused prescription medication. Preston has
previously been ordered to complete an alcohol treatment program, but there is
no indication that he has, in fact, sought out or completed any treatment. He is
well aware of his serious substance abuse issues but has not taken any steps to
treat those issues. Under these circumstances, the trial court did not err by
1
Preston cites to Indiana Appellate Rule 7(B) but does not make an argument that the sentence is
inappropriate in light of the nature of the offense and his character. We note that even if he had made a Rule
7(B) argument, we would have affirmed the sentence, given the particularly brutal nature of the offense and
Preston’s lengthy criminal history, which includes multiple prior battery convictions.
He also argues that the trial court did not afford enough weight to his guilty plea as a mitigator, but we do not
review the weight given to aggravators and mitigators by the trial court. See Anglemyer v. State, 868 N.E.2d
482, 491 (Ind. 2007), clarified on reh’g. at 875 N.E.2d 218.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-581 | January 10, 2019 Page 3 of 4
declining to find this to be a mitigating factor. See Caraway v. State, 959 N.E.2d
847, 851 (Ind. Ct. App. 2011) (finding that when a defendant is aware of a
substance abuse problem but has not taken steps to treat it, the trial court may
find that the addiction is an aggravator).
[6] As for Preston’s purported mental health issues, there is no evidence supporting
his claim that he has been diagnosed with a myriad of issues aside from his own
self-serving testimony. And even that testimony is contradicted by Preston’s
statements in the presentence investigation report, when he reported that he was
in “fair mental health,” and by his testimony that he was not being treated for
or suffering from any mental illnesses or diseases. Appellant’s Conf. App. Vol.
III p. 12; Tr. Vol. II p. 3-4. In addition to a dearth of medical evidence
supporting his claims of mental illness, Preston did not present any evidence
showing that his purported mental health issues rendered him unable to control
his behavior, limited his functioning, or had a nexus to the crime at issue.
Therefore, the trial court did not err by declining to find this to be a mitigating
factor.
[7] The judgment of the trial court is affirmed.
May, J., and Tavitas, J, concur.
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