Randy Terrell v. State of Indiana ( 2013 )

Nov 14 2013, 5:45 am
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,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DONALD E. BAIER GREGORY F. ZOELLER
Baier & Baier Attorney General of Indiana
Mount Vernon, Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
RANDY TERRELL, )
)
Appellant-Defendant, )
)
vs. ) No. 65A04-1303-CR-147
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE POSEY SUPERIOR COURT
The Honorable S. Brent Almon, Judge
Cause No. 65D01-1208-FB-358
November 14, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Randy Terrell appeals the sentence he received following his conviction of Dealing in
Methamphetamine1 as a class B felony; two counts of Burglary,2 both as class B felonies;
Possession of Chemical Reagents or Precursors with Intent to Manufacture a Controlled
Substance3 as a class D felony; Maintaining a Common Nuisance4 as a class D felony; and
two counts of Theft,5 both as class D felonies. These convictions were entered upon his pleas
of guilty. Terrell contends his sentence is inappropriate in light of his character and the
nature of his offenses.
We affirm.
The facts as admitted by Terrell are that on July 17, 2012, Terrell and his son broke
into a barn located on property owned by Fred Eaton in Posey County. Once inside, the men
removed an air compressor, tools, and an air conditioner. The air conditioner was later
recovered at Terrell’s residence. On August 13, 2012, Terrell and his son went to the
residence of Karen Mathews in Posey County, forced open a window, and entered the home.
Terrell’s son removed an antique jewelry box full of jewelry. Terrell and other members of
his family subsequently sold some of the jewelry in various places in Posey and Vanderburgh
Counties. Some of the jewelry and the antique jewelry box were later recovered at Terrell’s
residence. On August 16, 2013, police officers went to Terrell’s residence because they had
evidence indicating that Terrell and his son were involved in the burglaries and were selling
1
Ind. Code Ann. § 35-48-4-1.1 (a)(1) (West, Westlaw current with all 2013 legislation).
2 Ind. Code Ann. § 35-43-2-1 (West, Westlaw current with all 2013 legislation).
3 I.C. § 35-48-4-14.5 (e) (West, Westlaw current with all 2013 legislation).
4 I.C. § 35-48-4-13 (b) (2) (West, Westlaw current with all 2013 legislation).
5 I.C. § 35-43-4-2 (a) (West, Westlaw current with all 2013 legislation).
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property stolen during those burglaries. Once there, police observed in plain view various
pieces of jewelry that Terrell was in the process of dismantling. Police then obtained a
search warrant for Terrell’s residence, and upon executing the warrant, recovered items
stolen during the aforementioned burglaries. Terrell and his son gave statements admitting
they committed the burglaries.
While executing the above-mentioned warrant, officers also observed in plain view
items that led them to believe that Terrell was engaged in the manufacture of
methamphetamine. Police then obtained a second search warrant, executed that warrant, and
recovered two HCL generators and a drinking glass containing a liquid that was subsequently
determined to contain methamphetamine. They also recovered: empty blister packs for
pseudoephedrine tablets, pseudoephedrine tablets, cut-corner plastic baggies containing a
white, powdery substance determined to be methamphetamine, several pieces of burnt
aluminum foil that were used to ingest methamphetamine, wet and dry coffee filters, some of
which contained a white, powdery residue subsequently determined to be methamphetamine,
a thermos cup with a powdery residue that was subsequently determined to be ephedrine, a
metal spoon with a residue that was subsequently determined to be methamphetamine,
camping fuel, plastic tubing, and sodium hydroxide. Terrell admitted he had used
methamphetamine for a period of years, but claimed that he did not manufacture it it.
The State charged Terrell with dealing in methamphetamine (Count 1) and burglary
(Count 4), both as class B felonies, burglary as a class C felony (Count 5), class D felony
possession of chemical reagents or precursors with intent to manufacture a controlled
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substance (Count 2), class D felony maintaining a common nuisance (Count 3), and two
counts of theft (Counts 6 and 7), both as class D felonies. Terrell pled guilty to all counts
without the benefit of a plea agreement. Following a hearing, the trial court sentenced
Terrell to an aggregate, executed sentence of twenty-four years. This included the advisory
sentence for each offense, some of which were to run consecutively to each other, while
others were to run concurrently.
Terrell contends his sentence was inappropriate in light of his character and the nature
of his offense. He cites the correct standard of review for challenges to the appropriateness
of a criminal sentence. Pursuant to that standard, article 7, section 4 of the Indiana
Constitution grants our Supreme Court the power to review and revise criminal sentences.
Under Ind. Appellate Rule 7, the Supreme Court authorized this court to perform the same
task. Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008). Per Indiana Appellate Rule 7(B), we
may revise a sentence “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.” Wilkes v. State, 917 N.E.2d 675, 693 (Ind. 2009), cert. denied, 131 S.Ct. 414(2010). “[S]entencing is principally a discretionary function in which the trial court’s
judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d at 1223.
Terrell bears the burden on appeal of persuading us that his sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073 (Ind. 2006).
Although citing this standard, Terrell’s argument focuses not upon his character or the
nature of his offenses, but rather upon the aggravating and mitigating circumstances cited by
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the court in arriving at his sentence. He argues, “the trial court failed to appropriately
consider the significance of the mitigating factors [found by the trial court], and had the court
done so, the Court would’ve reduced [Terrell’s] sentences below the advisory sentence and
would not have run sentences consecutively. Further, the trial court gave inappropriate
significance to [Terrell’s] criminal history.” Appellant’s Brief at 9. He provides the
following summary at the conclusion of his argument:
Appellant submits that the trial court did not attach enough significance to the
mitigating factors in failing to reduce appellant’s sentence below the advisory
sentence and by imposing consecutive sentences. Appellant requests that the
appellate court exercise its authority under Appellate Rule 7 (B), [and]
determine that the appellant’s sentence in [sic] inappropriate in light of the
nature of the offense and the character of the offender[.]
Id. at 11.
As reflected in this summary, Terrell conflates two distinct legal issues. While
ostensibly challenging the appropriateness of the sentence, his argument substantively
focuses exclusively on the trial court’s weighing of aggravating and mitigating
circumstances. Our Supreme Court has explained that under the current advisory sentencing
scheme, trial courts do not have an obligation to weigh aggravating and mitigating factors
against each other when imposing a sentence. See Anglemyer v. State, 868 N.E.2d 482 (Ind.
2006), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). Therefore, the weight the trial court
assigns to any aggravating or mitigating circumstance is not subject to appellate review. Id.With respect to the challenge that he may and ostensibly does make to his sentence,
i.e., the appropriateness of the sentence, the “revision of a sentence under Indiana Appellate
Rule 7(B) requires the appellant to demonstrate that his sentence is inappropriate in light of
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both the nature of his offenses and his character.” Williams v. State, 891 N.E.2d 621, 633
(Ind. Ct. App. 2008) (emphasis in original); see App. R. 7(B). Terrell presents no argument
whatsoever concerning the inappropriateness of his sentence in light of the nature of his
offenses or his character. Therefore, the argument is waived. Williams v. State, 891 N.E.2d
621; see App. R. 46(A)(8)(a).
Judgment affirmed.
BAKER, J., and VAIDIK, J., concur.
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