John W. Hayes v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be Oct 09 2014, 8:58 am
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:
CHRISTOPHER L. CLERC GREGORY F. ZOELLER
Columbus, Indiana Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOHN W. HAYES, )
)
Appellant-Defendant, )
)
vs. ) No. 03A04-1405-CR-221
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT
The Honorable Stephen R. Heimann, Judge
Cause No. 03C01-1310-FA-5805
October 9, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
John W. Hayes pleaded guilty to Dealing in Methamphetamine as a class B felony1
and was sentenced to nineteen years imprisonment with one year suspended. On appeal,
Hayes challenges his sentence in two respects:
1. Did the trial court abuse its discretion in failing to consider his guilty
plea and remorse as significant mitigating factors?
2. Is the sentence imposed inappropriate?
We affirm.
On October 27, 2013, Officer John Searle of the Columbus Police Department
conducted a traffic stop on a vehicle driven by Hayes for a window-tint violation and
because the vehicle’s registered owner had a suspended license. Officer Searle identified
the driver as Hayes and verified that his license was suspended. Officer Searle conducted
a pat-down search of Hayes and discovered a glass pipe used to ingest controlled
substances in Hayes’s left pocket. Officer Searle arrested Hayes. Officer Searle then
searched Hayes’s coat and found a plastic baggie containing a green plant material that
field-tested positive for marijuana.
During an inventory search of Hayes’s vehicle, Officer Searle found a zippered
case under the driver’s seat that contained two bags of white-colored, rock-like substance
that field-tested positive for methamphetamine. The amount of methamphetamine
recovered was later determined to be approximately fifty-five grams. Also located in the
1
See Ind. Code Ann. § 35-48-4-1.1 (West, Westlaw 2012). The version of this statute in effect at the time
this offense was committed classified the crime of dealing in methamphetamine, to which Hayes pleaded
guilty, as a class B felony. This statute has since been revised and in its current form reclassifies the
offense as a Level 5 felony. (West, Westlaw current with all 2014 Public Laws of the 2014 Second
Regular Session and Second Regular Technical Session of the 118th General Assembly). The new
classification, however, applies only to offenses committed on or after July 1, 2014. See id. Because this
offense was committed on October 27, 2013, it retains the former classification.
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zippered case were a digital scale with a white powder residue on it, empty plastic bags,
and q-tips. Officer Searle also recovered from the zippered case two plastic bags
containing small, circular pills, some of which were later identified as containing
Oxycodone, a controlled substance. Hayes eventually admitted to Officer Searle that he
was a methamphetamine user and that he had obtained the methamphetamine from some
Mexicans. Also discovered in Hayes’s possession was $3235 in cash.
On October 29, 2013, the State charged Hayes with dealing in methamphetamine
as a class A felony, possession of a controlled substance as a class D felony, possession
of marijuana as a class A misdemeanor, and possession of paraphernalia as a class A
misdemeanor. On February 20, 2014, Hayes entered into a plea agreement with the State
whereby Hayes agreed to plead guilty to the lesser crime of dealing in methamphetamine
as a class B felony, and in exchange the State agreed to dismiss the remaining charges, as
well as petitions to revoke probation in two other causes. The trial court accepted
Hayes’s guilty plea during a hearing held on March 17, 2014.
The trial court held a sentencing hearing on April 24, 2014. The trial court found
no mitigating circumstances and several aggravating circumstances, and thereafter
sentenced Hayes to nineteen years imprisonment with one year suspended to probation.
Hayes now appeals.
1.
Hayes argues that the trial court abused its discretion when it failed to consider his
guilty plea and remorse as mitigating factors. Sentencing decisions rest within the sound
discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified on
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reh’g, 875 N.E.2d 218. So long as the sentence is within the statutory range, it is subject
to review only for an abuse of discretion. Id. “An abuse of discretion occurs if the
decision is ‘clearly against the logic and effect of the facts and circumstances before the
court or the reasonable, probable, and actual deductions to be drawn therefrom.’” Id. at
491 (quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)).
A trial court may abuse its sentencing discretion in a number of ways, including:
(1) failing to enter a sentencing statement at all; (2) entering a sentencing statement that
includes aggravating and mitigating factors that are unsupported by the record; (3)
entering a sentencing statement that omits reasons that are clearly supported by the
record; or (4) entering a sentencing statement that includes reasons that are improper as a
matter of law. Anglemyer v. State, 868 N.E.2d 482.
An allegation that the trial court failed to identify a mitigating factor requires the
defendant to establish that the mitigating evidence is both significant and clearly
supported by the record. Id. A sentencing court is not obligated to find a circumstance to
be mitigating merely because it is advanced as such by the defendant, nor is it required to
explain why it chose not to make a finding of mitigation. Felder v. State, 870 N.E.2d 554
(Ind. Ct. App. 2007). A trial court does not abuse its discretion in failing to find a
mitigating factor that is highly disputable in nature, weight, or significance. Rogers v.
State, 878 N.E.2d 269 (Ind. Ct. App. 2007), trans. denied. We acknowledge that a
defendant who pleads guilty deserves to have at least some mitigating weight extended to
the guilty plea in return. Lavoie v. State, 903 N.E.2d 135 (Ind. Ct. App. 2009). It has
been observed, however, that “a guilty plea does not rise to the level of significant
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mitigation where the defendant has received a substantial benefit from the plea or where
the evidence against him is such that the decision to plead guilty is merely a pragmatic
one.” Id. at 143 (quoting Wells v. State, 836 N.E.2d 475, 479 (Ind. Ct. App. 2005), trans.
denied).
In Hayes’s case, the evidence of guilt was overwhelming. Therefore, his decision
to plead guilty was likely a pragmatic one. Moreover, by pleading guilty, Hayes received
a substantial benefit in that he pleaded guilty to a lesser included offense of the most
serious charge he was facing and the State dismissed the remaining charges as well as
two separate petitions to revoke probation. Under these circumstances, Hayes’s guilty
plea does not merit significant mitigating weight. The trial court did not abuse its
discretion in this regard.
We also conclude that the trial court did not abuse its discretion in failing to
consider Hayes’s remorse as a significant mitigating factor. Although Hayes made a
statement on his own behalf during the sentencing hearing, Hayes fell short of expressing
remorse for his actions. In his appellant’s brief, Hayes equates a plea of guilty with an
expression of remorse. As we noted above, Hayes’s guilty plea was likely a pragmatic
decision from which he received a substantial benefit, not an expression of remorse that
warrants consideration as a significant mitigating factor.
2.
Hayes argues that his sentence is inappropriate. Article 7, section 4 of the Indiana
Constitution grants our Supreme Court the power to review and revise
criminal sentences. Pursuant to Ind. Appellate Rule 7, the Supreme Court authorized this
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court to perform the same task. Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008).
Per 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. “[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. Hayes bears the burden on appeal of persuading us that his sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073 (Ind. 2006).
The determination of whether we regard a sentence as inappropriate “turns on our
sense of 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 v.
State, 895 N.E.2d at 1224. “[T]he question under Appellate Rule 7(B) is not whether
another sentence is more appropriate; rather, the question is whether the sentence
imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App.
2008) (emphasis in original).
With regard to the nature of the offense, we note that Hayes was in possession of a
pipe used for ingesting controlled substances, a baggie of marijuana, fifty-five grams of
methamphetamine, a scale, empty plastic bags, q-tips, and multiple tablets of Oxycodone,
in addition to $3235 in cash. Hayes initially claimed that he had obtained the
methamphetamine from Mexicans, but later claimed that he received it instead of cash as
payment for work he had done. The nature of the offense does not warrant a lesser
sentence.
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We now consider Hayes’s character. Hayes has an extensive criminal history that
began when he was a juvenile and spans nearly twenty-eight years. The instant case was
Hayes’s sixth felony conviction and his ninth total conviction. His criminal history
includes multiple convictions for drugs. Further, Hayes was on probation at the time of
the instant offense, having been released from prison three and a half months prior to his
arrest in this case. The record reflects that Hayes has been offered substance-abuse
treatment at least three times outside a penal facility and has failed to take advantage of
such services. In the past, Hayes has been afforded multiple opportunities with probation
and community supervision. Hayes has numerous violations of pre-trial, probation, and
community correction supervisions. Contrary to Hayes’s claim in his brief that he is a
model inmate, the pre-sentence investigation report notes that Hayes has violated the
rules of the Bartholomew County Jail since being incarcerated on the current offense,
which resulted in a loss of privileges. Finally, while Hayes claims he was clean from
drugs for four months, as soon as he interjected himself into a situation with an
acquaintance, he admits that he gave in to peer pressure and began using
methamphetamine again. Hayes’s character, as reflected by his extensive criminal
history and failure to conform to the rules of society, supports the nineteen-year sentence
imposed by the trial court.
Hayes has failed to establish that the nineteen-year sentence imposed by the trial
court is inappropriate in light of the nature of the offense and his character.
Judgment affirmed.
VAIDIK, C.J., and MAY, J., concur.
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