Carl R. Evanoff v. State of Indiana ( 2014 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata, Apr 28 2014, 9:30 am
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ADAM C. SQUILLER GREGORY F. ZOELLER
Auburn, Indiana Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CARL R. EVANOFF, )
)
Appellant-Defendant, )
)
vs. ) No. 17A04-1309-CR-445
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DEKALB SUPERIOR COURT
The Honorable Kevin P. Wallace, Judge
Cause No. 17D01-1208-FA-008
April 28, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Carl Evanoff (“Evanoff”) pleaded guilty in DeKalb Superior Court to Class B
felony conspiracy to manufacture methamphetamine. Evanoff appeals the trial court’s
sentencing order and argues that his fifteen-year sentence is inappropriate in light of the
nature of the offense and the character of the offender.
We affirm.
Facts and Procedural History
On August 15, 2012, Evanoff agreed to manufacture methamphetamine with a
confidential informant. In furtherance of that agreement, the confidential informant gave
Evanoff five boxes of Sudafed. Evanoff was subsequently charged with Class B felony
conspiracy to manufacture methamphetamine.1
Evanoff agreed to plead guilty to that offense with sentencing left to the discretion
of the trial court. After considering Evanoff’s significant criminal history, which
includes thirteen misdemeanor and eight felony convictions, the trial court ordered him to
serve fifteen years executed in the Department of Correction. Evanoff now appeals the
appropriateness of his sentence.
Discussion and Decision
Under Indiana Appellate Rule 7(B), we may “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.” Although we may review and revise a sentence, “[t]he principal role of
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Evanoff was also charged with Class D felony driving while suspended as an habitual traffic violator,
which charge was dismissed pursuant to the plea agreement.
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appellate review should be to attempt to leaven the outliers, and identify some guiding
principles for trial courts and those charged with improvement of the sentencing statutes,
but not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008). We must give “deference to a trial court’s sentencing
decision, both because Rule 7(B) requires us to give due consideration to that decision
and because we understand and recognize the unique perspective a trial court brings to its
sentencing decisions.” Trainor v. State, 950 N.E.2d 352, 355–56 (Ind. Ct. App. 2011),
trans. denied (quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007))
(internal quotation marks omitted).
When we review the appropriateness of a sentence, we consider “the culpability of
the defendant, the severity of the crime, the damage done to others, and myriad other
factors that come to light in a given case.” Cardwell, 895 N.E.2d at 1224. The defendant
has the “burden to persuade us that the sentence imposed by the trial court is
inappropriate.” Shell v. State, 927 N.E.2d 413, 422 (Ind. Ct. App. 2010).
The trial court ordered Evanoff to serve a fifteen-year sentence, which is five years
less than the maximum twenty years that can be imposed for a Class B felony conviction.
See Ind. Code § 35-50-2-6 (“A person who commits a Class B felony . . . shall be
imprisoned for a fixed term of between six (6) and twenty (20) years, with the advisory
sentence being ten (10) years”).
The circumstances surrounding Evanoff’s offense do not support a sentence close
to the maximum allowable sentence. Evanoff agreed to manufacture methamphetamine
and received five boxes of Sudafed from the confidential informant to aid him in
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manufacturing methamphetamine. However, no methamphetamine was made and no
individual was harmed by Evanoff’s commission of the offense.
However, the fifteen-year sentence is not inappropriate in light of the nature of the
offender. Thirty-three-year-old Evanoff has three juvenile delinquency adjudications,
thirteen misdemeanor convictions, and eight felony convictions. His misdemeanor
convictions include criminal mischief, invasion of privacy, and five battery offenses.
Evanoff was convicted of two counts of Class D felony theft under separate cause
numbers in 1999, Class D felony intimidation in 2002, carrying a concealed weapon (a
fourth degree felony in Ohio) in 2003, Class C felony possession of methamphetamine in
2006, Class D felony possession of a controlled substance and illegal drug lab in 2007,
and Class D felony receiving stolen property also in 2007. In addition, Evanoff’s record
consists of multiple probation and parole violations, and his probation was revoked on the
2006 Class C felony possession of methamphetamine offense.
After reviewing Evanoff’s criminal history, the trial court rightly observed that
“[t]hroughout his life, [Evanoff] hasn’t abided by the law.” Tr. p. 70. Evanoff has been
incarcerated for a significant portion of his adult life and has not demonstrated
rehabilitation from incarceration.
For all of these reasons, we conclude that Evanoff’s fifteen-year sentence is not
inappropriate in light of the nature of the offense and the character of the offender.
Affirmed.
FRIEDLANDER, J., and PYLE, J., concur.
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