Samuel Pinkston v. State of Indiana (mem. dec.) , 2017 Ind. App. Unpub. LEXIS 10 ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jan 13 2017, 10:13 am
regarded as precedent or cited before any
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
Michael P. Quirk Curtis T. Hill, Jr.
Muncie, Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Samuel Pinkston, January 13, 2017
Appellant-Defendant, Court of Appeals Case No.
18A04-1607-CR-1629
v. Appeal from the Delaware Circuit
Court
State of Indiana, The Honorable Marianne Vorhees,
Appellee-Plaintiff. Judge
Trial Court Cause No.
18C01-1408-FB-20
Vaidik, Chief Judge.
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Case Summary
[1] Samuel Pinkston was charged with manufacturing methamphetamine and
entered into a plea agreement that required him to serve a sentence of six years
but that left to the trial court the decision of where that time would be served.
The trial court ordered Pinkston to serve all of his time in the Department of
Correction, and Pinkston appeals. Finding no error, we affirm.
Facts and Procedural History
[2] In July 2016, Pinkston pled guilty to Class B felony dealing in
methamphetamine (manufacturing). The statutory sentencing range at the time
of his offense (April 2014) was six to twenty years, with an advisory sentence of
ten years, see Ind. Code Ann. § 35-50-2-5 (West 2012), but his plea agreement
called for a sentence of eight years, with six years to serve in a setting
determined by the trial court and the other two years suspended to probation.
[3] At the sentencing hearing, Pinkston asked to be allowed to serve his time on
electronic home detention. He also asked that, if any of his time was to be
served in the Department of Correction (“DOC”), he be recommended for
placement in a therapeutic community as part of the DOC’s Purposeful
Incarceration program. In considering the appropriate placement, the trial
court found three aggravating circumstances: (1) while this case was pending,
Pinkston was arrested for and charged with operating while intoxicated and
operating a vehicle after lifetime license forfeiture; (2) Pinkston was on
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supervised probation in another case when he committed the offense in this
case; and (3) Pinkston has at least seven prior felony convictions stretching back
to 1991. The court found one mitigating circumstance: Pinkston accepted
responsibility for his actions and saved the State the expense of going to trial by
pleading guilty. Explaining that “the circumstances could have supported the
advisory, if not an enhanced sentence,” Tr. p. 28, the trial court rejected
Pinkston’s request to serve his time on home detention and instead ordered him
to serve all of his time in the DOC. However, it found that Pinkston “is an
appropriate candidate for Purposeful Incarceration through a Therapeutic
Community” and said that “once Defendant has One (1) actual year or less to
serve, he may petition the Court to consider ordering him to serve the
remaining One (1) actual year as a direct commitment to electronic home
detention.” Appellant’s App. Vol. II, p. 29.
[4] Pinkston now appeals.
Discussion and Decision
[5] Pinkston contends that the trial court committed several errors in deciding how
he would serve his six years. Our trial courts enjoy broad discretion in making
sentencing decisions, and we will reverse such a decision only for an abuse of
that discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on
reh’g, 875 N.E.2d 218 (Ind. 2007).
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[6] Pinkston first argues that the trial court “did not give a detailed reason why [he]
could not serve his executed time on electronic home detention.” Appellant’s
Br. p. 9. We disagree. After specifically laying out the aggravating and
mitigating circumstances, the court explained that Pinkston “has not taken
advantage of prior opportunities for rehabilitation, including prior
commitments to the Department of Correction and prior attempts at adult
probation.” Appellant’s App. Vol. III, p. 40 (emphasis added). While
probation does not always include electronic home detention, the bottom line is
that Pinkston has not succeeded when given non-DOC alternatives in the past.
The trial court’s sentencing statement was more than adequate.
[7] Next, Pinkston points out that he was originally facing three charges
(possession of reagents or precursors and maintaining a common nuisance, in
addition to dealing) and that the pre-sentence investigation report “lists all three
(3) counts as the ‘present offense’, even though it is clear in the plea agreement
that the Defendant was only pleading guilty to Count 1.” Appellant’s Br. p. 10.
We first note that Pinkston did not challenge this aspect of the pre-sentence
investigation report, so he waived any objection in this regard. Waiver
notwithstanding, the probation officer specifically noted in the report that she
“concurs with the plea agreement,” which called for two of the three charges to
be dismissed. Appellant’s App. Vol. III, p. 16. And in any event, there is no
indication that the trial court relied on the dismissed charges in making its
decision.
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[8] Pinkston’s final argument is that his juvenile delinquency adjudications “should
not have played a role in the Trial Court’s decision on the method of service of
the [his] sentence.” Appellant’s Br. p. 10. This claim assumes that Pinkston’s
adjudications did “play a role” in the trial court’s decision. There is no
evidence that they did. The trial court made no mention of those adjudications,
either in its oral sentencing statement or its subsequent written order. In fact, in
finding Pinkston’s lengthy criminal history to be an aggravating circumstance, it
only addressed his adult felony convictions.1
[9] Affirmed.
Bradford, J., and Brown, J., concur.
1
Pinkston does not cite Appellate Rule 7(B), which allows an appellate court to “revise a sentence authorized
by statute if, after due consideration of the trial court’s decision, the Court the finds that the sentence is
inappropriate in light of the nature of the offense and the character of the offender.” To the extent Pinkston
is arguing that his sentence is inappropriate, we disagree.
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