Brent Stephenson v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Dec 27 2018, 10:31 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Madison, Indiana Attorney General of Indiana
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brent Stephenson, December 27, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1438
v. Appeal from the Dearborn
Superior Court
State of Indiana, The Honorable Jonathan N.
Appellee-Plaintiff. Cleary, Judge
Trial Court Cause No.
15D01-1709-F4-29
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1438 | December 27, 2018 Page 1 of 9
Case Summary
[1] Brent Stephenson appeals his sentence, received pursuant to his guilty plea for
dealing in cocaine, a Level 4 felony. We affirm.
Issue
[2] Stephenson raises one issue, which we restate as whether his sentence is
inappropriate.
Facts
[3] In March 2017, officers received information from a “concerned citizen” that
Stephenson was involved in selling cocaine and marijuana. Tr. Vol. II p. 43.
Detective Nick Beetz of the Lawrenceburg Police Department testified that
officers began investigating Stephenson when they heard that he was “again
involved in illegal drug activity.” Id. at 27. Officers were familiar with
Stephenson based on previous encounters between February 14, 2011, and
March 18, 2011, in which officers participated in several controlled buys with
Stephenson. During that time, Stephenson also sold heroin to an individual
who later died as a result of an overdose. 1
[4] Officers continued to receive information about Stephenson’s activity selling
narcotics through July 2017 from a confidential informant. Then, in August 28,
1
For this 2011 offense, Stephenson pled guilty to Count I, dealing in a narcotic drug, a Class B felony, and
Count II, reckless homicide, a Class C felony, under Cause No. 15C01-1103-FA-4. Stephenson was
sentenced to twenty years, with thirteen years suspended on Count I, and eight years with four years
suspended on Count II. Stephenson was released from prison in March 2016.
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2017, officers responded to a domestic incident at Stephenson’s mother’s
residence in Manchester. When officers arrived, Cynthia Dudley, Stephenson’s
mother, and Michelle Dudley, Stephenson’s sister, were at the residence, but
Stephenson had fled. Officers conducted a search of the residence and found
drugs, drug paraphernalia, and an empty handgun box. The officers believed
the items belonged to Stephenson. The following day, officers issued a
charging information and charged Stephenson with Count I, possession of a
firearm by a serious violent felon, a Level 4 felony; Count II, intimidation, a
Level 5 felony; and Count III, pointing a firearm, a Level 6 felony. 2 Officers
issued an arrest warrant for Stephenson and remained in contact with their
informant who was providing information on Stephenson.
[5] Officers made attempts to locate Stephenson with no success. Officers had
reason to believe that Stephenson was aware of the warrant and that he was
“laying low.” Id. at 42. On September 1, 2017, officers conducted a controlled
purchase of one gram of cocaine from Stephenson in Lawrenceburg for $100.
A confidential informant arranged the purchase with Stephenson via text
message. When the confidential informant arrived to purchase the cocaine
from Stephenson, Sandra Holland (“Sandra”) brought the cocaine out to the
confidential informant wrapped up in a plastic bag that was inside a diaper.
2
On March 26, 2018, Stephenson pleaded guilty to an amended Count II, intimidation, a Level 5 felony
under Cause No. 15C01-1708-F4-27. On this charge, Stephenson was sentenced to six years suspended to be
served consecutive to the nine years imposed on his probation revocation sentence under Cause No. 15C01-
1103-FA-4.
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Sandra indicated that she got the drugs from Stephenson. Sandra and her
husband, Ry Holland (“Ry”), were also both charged for offenses related to
their involvement with the transaction. 3
[6] After the transaction, officers observed Stephenson get into a van with Sandra
and Ry. Officers initiated a traffic stop of the van. Stephenson fled from the
van, and officers pursued him. Officers, with canine support, were ultimately
able to capture Stephenson and took him into custody. The two fifty-dollar bills
that the confidential informant gave to Sandra during the transaction were
found in Stephenson’s wallet when Stephenson was taken into custody.
Officers had written down the serial numbers of the two fifty-dollar bills they
used in the transaction and were able to verify the bills were the same as those
in Stephenson’s wallet. Officers also found a black backpack that belonged to
Stephenson in Sandra and Ry’s home that contained multiple drug and drug
paraphernalia items, including marijuana, a folded brown plastic bag, 4 two
partial white round or oval tablets, and a glass pipe. One tablet tested positive
for suboxone, and the other tested positive for buprenorphine.
[7] Stephenson was charged with Count I, dealing in cocaine, a Level 5 felony;
Count II, dealing in cocaine, a Level 4 felony; Count III, resisting law
enforcement, a Class A misdemeanor; Count VII, possession of a narcotic drug,
3
Specific information regarding the charges of Sandra and Ry have been omitted from this opinion.
4
This plastic bag was the same type as the plastic bag in which the cocaine was delivered.
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a Level 6 felony; Count VIII, possession of a narcotic drug, a Level 5 felony;
Count IX, possession of a controlled substance, a Class A misdemeanor; Count
X, possession of a controlled substance, a Level 6 felony; Count XI, possession
of marijuana less than thirty grams, a Class B misdemeanor; and Count XII,
possession of paraphernalia, a Class C misdemeanor. 5 Stephenson pleaded
guilty to an amended Count II, dealing in cocaine, a Level 4 felony, and all
other counts were dismissed.
[8] At sentencing, Stephenson testified regarding his extensive addiction history.
Stephenson was prescribed ADHD medication as a child; and, after his release
from “boy’s school,” began smoking marijuana. Id. at 51. Stephenson
indicated that his drug addiction “kinda [sic] led from there.” Id. Stephenson
admitted to using opiates in 2011 and continuous marijuana use after his release
from prison. Stephenson stated that he “didn’t want to get back into heroin
again,” so Stephenson went to the suboxone clinic until he could no longer
afford it and began buying off the streets. Id.
[9] The trial court sentenced Stephenson to eleven years executed. The trial court
found as mitigating factors: (1) Stephenson’s guilty plea; (2) that Stephenson
has a dependent son 6; and (3) that Stephenson expressed remorse. 7 The trial
5
The other counts in the charging information applied only to Sandra and Ry and have been omitted.
6
Stephenson’s son was one year old at the time of sentencing.
7
In finding this mitigator, the trial court said: “[B]ut the Court does note, that some of the statements today
are in direct conflict to the jail recording played by the State.” Tr. Vol. II p. 66. During sentencing, the State
produced video of Stephenson speaking with an unidentified female while in prison, saying first that his time
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court found as aggravating factors: (1) that Stephenson was on probation when
the felony was committed; and (2) Stephenson’s criminal history, which
included two adjudications as a delinquent. Stephenson now appeals.
Analysis
[10] Indiana Appellate Rule 7(B) provides that this court 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 defendant bears the burden to persuade this
court that his or her sentence is inappropriate. Wilson v. State, 966 N.E.2d 1259,
1266 (Ind. Ct. App. 2012) (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006)), trans. denied.
[11] In Indiana, trial courts can tailor an appropriate sentence to the circumstances
presented; the trial court’s judgment receives “considerable deference.” Sanders
v. State, 71 N.E.3d 839, 844 (Ind. 2017) (quoting Cardwell v. State, 895 N.E.2d
1219, 1222 (Ind. 2008)). In conducting our review, we do not look to see
whether the defendant’s sentence is appropriate or “if another sentence might
be more appropriate; rather, the question is whether the sentence imposed is
inappropriate.” Sanders, 71 N.E.3d at 844 (citing King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008)).
in prison goes by very quickly, and even when he is given five or six years, it feels like eighteen months to
him. Stephenson also told the unidentified female that he had been selling drugs to provide for his son.
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[12] We look to the statutory ranges established for the classification of the offense.
Stephenson pleaded guilty to an amended Count II, dealing in cocaine, a Level
4 felony. The sentence for a Level 4 felony ranges from two years to twelve
years, with an advisory sentence of six years. Here, the trial court imposed an
eleven-year sentence.
[13] We first review the nature of Stephenson’s offense. Stephenson pleaded guilty
to dealing in cocaine, a Level 4 felony, after he sold cocaine to a confidential
informant in a controlled buy. At the time of the controlled buy, Stephenson
had a pending arrest warrant for his charges of possession of a firearm by a
serious violent felon, a Level 4 felony; intimidation, a Level 5 felony; and
pointing a firearm, a Level 6 felony, from a domestic incident that had taken
place only a few days before the controlled buy. The evidence indicated that
Stephenson was aware of these charges and was trying to avoid police.
[14] Next, we consider Stephenson’s character. Stephenson’s criminal history does
not reflect well upon his character. Stephenson was adjudicated twice as a
delinquent for an act that would be considered theft if committed by an adult, a
Class D felony, and an act that would be considered intimidation if committed
by an adult, a Class D felony. According to Stephenson’s presentence
investigation report, as an adult, Stephenson has been convicted of operating a
motor vehicle without ever receiving a license, a Class C misdemeanor; illegal
consumption of an alcoholic beverage, a Class C misdemeanor; illegal
possession of an alcoholic beverage, a Class C misdemeanor; visiting a
common nuisance, a Class B misdemeanor; dealing cocaine or narcotic drug
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within 1,000 feet of family housing complex, a Class B felony 8; reckless
homicide, a Class C felony; maintaining a common nuisance, a Class D felony;
intimidation, a Level 5 felony; and the instant offenses.
[15] Finally, the State’s evidence regarding Stephenson’s conversation with the
unidentified female in prison does not bode well for Stephenson’s character.
Stephenson indicated in that conversation that serving five or six years in prison
was not meaningful to him because it went by so quickly. In the conversation,
Stephenson also discussed his perceived need to continue to sell drugs to
provide for his son. As the trial court stated, “the desire, the plan, the amount
of work that goes into dealing drugs . . . .if [Stephenson] would have put the
same work into a legitimate job, [Stephenson] could have stayed out of
incarceration, [Stephenson] could have supported his son . . . .” Tr. Vol. II p.
69.
[16] It appears that the trial court did not believe that sentencing Stephenson to the
advisory sentence would help Stephenson understand the seriousness of his
actions. This is especially true in light of the fact that Stephenson was again
selling drugs just over one year after his release from prison for a transaction
that ultimately resulted in a death caused by overdose. We acknowledge that
the trial court did sentence Stephenson to the higher end of the sentencing range
8
The presentence investigation report indicates that Stephenson was convicted of a Class A felony; however,
the negotiated plea agreement provided on appeal indicates that Stephenson pleaded guilty to a Class B
felony.
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for Stephenson’s offense, but Stephenson’s prior sentences have had no
reformative effect on his behavior. We do not find this eleven-year sentence to
be inappropriate in light of all the circumstances.
Conclusion
[17] Stephenson failed to prove this sentence is inappropriate. We affirm.
Affirmed.
Brown, J., and Altice, J., concur.
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