Robert D. Rivard v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 30 2017, 8:19 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
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office Attorney General of Indiana
Brooklyn, Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert D. Rivard, March 30, 2017
Appellant-Defendant, Court of Appeals Case No.
84A04-1611-CR-2838
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable David R. Bolk,
Appellee-Plaintiff. Judge
Trial Court Cause No.
84D03-1603-F2-812
Najam, Judge.
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Statement of the Case
[1] Robert D. Rivard appeals his sentence after he pleaded guilty to dealing in
methamphetamine, as a Level 2 felony. Rivard raises a single issue for our
review, namely, whether his sentence is inappropriate in light of the nature of
the offense and his character. We affirm.
Facts and Procedural History
[2] On March 17, 2016, the Indiana State Police obtained a search warrant for
Rivard’s residence after having conducted two controlled drug buys there.
While executing that warrant, Rivard informed the searching officers that there
was methamphetamine in the middle drawer of his bedroom dresser. There,
officers found and seized 37.5 grams of methamphetamine. Officers also found
and seized a black digital scale with white residue on it, a glass smoking device,
and more than $5,000 in cash.
[3] The State charged Rivard with several offenses. On September 16, Rivard
pleaded guilty, pursuant to a written plea agreement, to dealing in
methamphetamine, as a Level 2 felony. In exchange, the State agreed to
dismiss four other charges and an habitual offender allegation. The parties
further agreed that Rivard would not be sentenced to more than twenty-five
years executed.
[4] The trial court accepted Rivard’s plea agreement and held a sentencing hearing.
At the conclusion of that hearing, the court stated as follows:
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[T]he aggravating factor here is . . . Mr. Rivard’s criminal
history. [H]e has nine prior felony convictions . . . many of them
are alcohol and drug related . . . . I find no other statutory
aggravating . . . factors. . . . [W]ith respect to . . . the mitigating
factors . . . I’m not go[ing] to give much weight to the fact that he
ple[aded] guilty because the habitual was dismissed as part of this
proceeding . . . [,] but he did plead guilty, has taken responsibility
and ple[aded], and has pl[eaded] to a significant
and . . . serious . . . offense . . . . [B]ut he received a significant
benefit because had he been convicted of a Level Two . . . it’s a
mandatory minimum non-suspendible . . . on . . . the habitual
portion. . . . Mr. Rivard clearly has some health and medical
issues that are more significant than . . . the Court usually sees.
He’s had a stroke, he’s had . . . difficulty reading and writing, has
difficulty using the right side of his body. . . . He was cooperative
[during the execution of the search warrant]. . . . Mr. Rivard is
not addicted to methamphetamine. . . . He’s impoverished.
He’d make [sic] an economic business decision . . . to sell
methamphetamine. . . . [H]e’s apologized for it, but it’s clear that
this is not a person who’s using a little bit, selling a little bit.
There was a significant amount of methamphetamine
here . . . and Mr. Rivard . . . wasn’t using. He has substance
abuse issues . . . I mean, alcohol addiction probably, marijuana
addiction admittedly . . . . [I]n light of Mr. Rivard’s criminal
history . . . this requires a slightly aggravated sentence over and
above the advisory, so I’m go[ing] to impose a sentence of
nineteen years. I’m going to order that six be executed at the
Indiana Department of Correction[.] I’m go[ing to] order that
Mr. Rivard be placed in a Therapeutic Community; specifically
the Court’s recommending G.R.I.P. or P.L.U.S. That upon
successful completion of G.R.I.P. or P.L.U.S. . . . the Court will
immediately suspend the balance of the six years and place him
on formal probation . . . . With respect to the fourteen years
suspended, I’m going to order that . . . [six and one-half years] be
formal [probation], [six and one-half years] informal.
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Tr. Vol. IV at 21-24. This appeal ensued.
Discussion and Decision
[5] Rivard contends that his sentence is inappropriate. Indiana Appellate Rule 7(B)
permits an Indiana appellate court to “revise a sentence authorized by statute if,
after due consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender.” We assess the trial court’s recognition or nonrecognition of
aggravators and mitigators as an initial guide to determining whether the
sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind.
Ct. App. 2006). The principal role of appellate review is to “leaven the
outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). A defendant
must persuade the appellate court that his or her sentence has met the
inappropriateness standard of review. Roush v. State, 875 N.E.2d 801, 812 (Ind.
Ct. App. 2007).
[6] According to Rivard, his nineteen-year sentence is inappropriate in light of the
nature of the offense because, while he was in possession of a large amount of
methamphetamine and cash, he was cooperative with police during the
execution of the warrant, he was not in possession of firearms or other
weapons, and he did not act “in a violent or aggressive manner at any time.”
Appellant’s Br. at 7. And, with respect to his character, Rivard contends that
his sentence is inappropriate because, while he has a lengthy criminal history,
he suffers from several health problems, he is impoverished, he cooperated with
police, and he pleaded guilty.
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[7] We cannot agree with Rivard that his sentence is inappropriate. The trial court,
having already considered all the factors raised on appeal, balanced them and
imposed a nuanced sentence. In particular, the court ordered Rivard to serve
nineteen years total, which is one and one-half years above the advisory term
for a Level 2 felony. See Ind. Code § 35-50-2-4.5 (2016). But the court ordered
only six of those nineteen years to be executed—well below the twenty-five
years the court could have imposed under the plea agreement—and of those six
years the court instructed Rivard that it would immediately suspend any
portion of that time that remained once Rivard successfully completed a
therapeutic community program. Of the other thirteen years, the court ordered
that they be evenly split between formal and informal probation.
[8] Considering the amount of methamphetamine discovered in Rivard’s residence,
which was nearly quadruple the amount needed to convict him of the Level 2
felony offense, and his extensive criminal history, we cannot say that Rivard’s
sentence is inappropriate in light of the nature of the offense or his character.
The trial court’s carefully crafted sentence is not an “outlier” that requires
appellate revision. See Cardwell, 895 N.E.2d at 1225. We affirm Rivard’s
sentence.
[9] Affirmed.
Riley, J., and Bradford, J., concur.
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