Tyris D. Lapsley v. State of Indiana ( 2013 )

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
Jun 19 2013, 10:31 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK OLIVERO GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TYRIS D. LAPSLEY, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1211-CR-477
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D04-1106-FD-896
June 19, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Tyris D. Lapsley (“Lapsley”) was convicted of Possession of Marijuana, as a Class D
felony,1 and Operating a Vehicle while Intoxicated, as a Class A misdemeanor.2 After failing
to comply with the conditions of his plea into Drug Court, he was sentenced to two years of
imprisonment for Possession of Marijuana and one year of imprisonment for Operating a
Vehicle while Intoxicated, run consecutively for an aggregate term of imprisonment of three
years.
He now appeals. We affirm.
Issue
Lapsley presents a single issue for review: whether the trial court abused its discretion
in identifying aggravating and mitigating factors in its sentencing statement.3
Facts and Procedural History
On June 25, 2011, Lapsley was operating a vehicle while intoxicated and in
possession of marijuana after having previously been convicted of possession of marijuana.
On June 30, 2011, the State charged Lapsley with Possession of Marijuana; Operating
a Vehicle while Intoxicated; and Operating a Vehicle with a Blood Alcohol Content of at
1
Ind. Code § 35-48-4-11.
2
I.C. §§ 9-30-5-2.
3
Lapsley presents this issue in his brief as including whether his sentence is inappropriate in light of the
nature of his offenses and his character. As the State notes, however, he fails to cite to applicable authority
(specifically, Appellate Rule 7(B)) or present a cogent argument on this point; he has thus waived that
issue on appeal. See Ind. Appellate Rule 46(a)(8)(A) (requiring citation to authority and cogent argument).
2
Least 0.08, as a Class C misdemeanor.4
Lapsley pled guilty to these charges on July 25, 2011, and was placed in the Allen
County Drug Court program. Lapsley completed several of the courses of treatment and
counseling required by the program; however, on August 29, 2012, he was referred for
relapse prevention. On September 10, 2012, a Verified Petition to Terminate Drug Court
Participation was filed. On September 11, 2012, the trial court found that Lapsley had
violated the terms of the Drug Court Participation Agreement, revoked his participation in
the program, and scheduled a sentencing hearing for October 15, 2012.
The sentencing hearing was conducted as scheduled. At its conclusion, Lapsley was
sentenced to two years of imprisonment for Possession of Marijuana and one year of
imprisonment for Operating a Vehicle while Intoxicated, with the sentences run
consecutively.5
This appeal ensued.
Discussion and Decision
On appeal, Lapsley contends that the trial court abused its discretion in fixing his
sentence. Specifically, Lapsley argues that the trial court “failed to properly consider certain
mitigating circumstances” and inappropriately “considered aggravating circumstances that
were mere recitations of prior convictions.” (Appellant’s Br. at 8.)
In Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified on reh’g, 868 N.E.2d
4I.C. § 9-30-5-1(a).
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The trial court vacated his conviction for Operating a Vehicle with a Blood Alcohol Content of at Least
0.08 on double jeopardy grounds.
3
482, the Indiana Supreme Court set forth the procedure by which sentencing must occur and
the standards under which we review a trial court’s sentencing decision:
To summarize, the imposition of sentence and the review of sentences on
appeal should proceed as follows:
1. The trial court must enter a statement including reasonably detailed reasons
or circumstances for imposing a particular sentence.
2. The reasons given, and the omission of reasons arguably supported by the
record, are reviewable on appeal for abuse of discretion.
3. The relative weight or value assignable to reasons properly found or those
which should have been found is not subject to review for abuse.
4. Appellate review of the merits of a sentence may be sought on the grounds
outlined in Appellate Rule 7(B).
Id. at 491.
Thus, to the extent Lapsley contends that the trial court erred “by failing to enter a
sentencing statement, entering a sentencing statement that explains reasons for imposing a
sentence which the record does not support, omitting reasons that are clearly supported by the
record and advanced for consideration, or giving reasons that are improper as a matter of
law,” we review his claims for an abuse of discretion. Anderson v. State, 961 N.E.2d 19, 32
(Ind. Ct. App. 2012), trans. denied. An abuse of discretion occurs when the trial court
reaches a decision clearly against the logic and effects of the facts and circumstances before
it. Id. However, the relative weight the trial court assigns to specific mitigating factors is not
subject to appellate review. Anglemyer, 868 N.E.2d at 491.
We find no abuse of discretion here.
We turn first to Lapsley’s contention that the sentencing statement did not adequately
4
address the trial court’s use of his prior convictions as aggravating factors. Prior criminal
conduct is among the aggravating circumstances a trial court may consider in imposing a
sentence. I.C. § 35-38-1-7.1(a)(2). At sentencing, Lapsley had six prior misdemeanor
convictions and three prior felony convictions, and was facing pending criminal charges in
Allen and Whitley Counties. The trial court addressed these, noted that several of these
convictions were related to Lapsley’s substance abuse problems, and observed that while
Lapsley had been afforded numerous opportunities for rehabilitation, he had failed to take
advantage of them. We cannot conclude that the trial court’s sentencing statement was
unclear in this regard.
As to Lapsley’s argument that the trial court did not “properly consider the time Mr.
Lapsley spent in the Drug Court Program,” this contention amounts to a request that we
review the weight the trial court placed on that mitigating circumstance. Such matters are
outside the scope of appellate review, however, and so we decline Lapsley’s invitation to
engage in such a review. See Anglemyer, 868 N.E.2d at 491. So, too, we decline Lapsley’s
claim that the trial court failed to consider his substance abuse as a mitigating factor—
because the trial court found that it was an aggravating circumstance, and this finding
comports with the evidence and argument presented during sentencing.
Having found no error in the trial court’s sentencing statement, we affirm the trial
court’s order sentencing Lapsley to an aggregate sentence of three years imprisonment.
Affirmed.
NAJAM, J., and BARNES, J., concur.
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