Brian M. Marley v. State of Indiana , 17 N.E.3d 335 ( 2014 )

FOR PUBLICATION
Sep 11 2014, 8:57 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LEANNA WEISSMAN GREGORY F. ZOELLER
Lawrenceburg, Indiana Attorney General of Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BRIAN M. MARLEY, )
)
Appellant-Defendant, )
)
vs. ) No. 15A01-1403-CR-127
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DEARBORN SUPERIOR COURT 1
The Honorable Jonathan N. Cleary, Judge
Cause No. 15D01-1305-FB-20
September 11, 2014
OPINION – FOR PUBLICATION
MATHIAS, Judge
Brian M. Marley (“Marley”) pleaded guilty in Dearborn Superior Court to Class B
felony dealing in oxycodone, a Schedule II controlled substance, and was sentenced to a
term of twelve years, with ten years executed and two suspended to probation. On appeal,
Marley claims that his sentence is inappropriate in light of the nature of the offense and
the character of the offender.
We affirm.
Facts and Procedural History
At the time relevant to this appeal, Marley lived with a woman named Kaitlin
Palmer (“Palmer”). Both Palmer and Marley were addicted to heroin. Marley also had a
prescription for oxycodone, an opiate pain-killer and a Schedule II controlled substance.
See Ind. Code § 35-48-2-6(b)(1)(O); see also Toney v. State, 961 N.E.2d 57, 60 (Ind. Ct.
App. 2012) (noting that oxycodone is an opiate). On February 13, 2013, an undercover
police officer in Dearborn County met Palmer through a friend of hers and told her that
he was looking to buy drugs for his cousin. Knowing that Marley was willing to sell his
oxycodone pills to help fund his heroin addiction, Palmer contacted Marley and told him
of the opportunity to sell the pills. Marley met Palmer and sold the undercover officer
ten oxycodone pills for $100. Marley and Palmer then took the proceeds from the sale
and purchased heroin, which they shared.
Thereafter, Palmer called the undercover officer repeatedly to ask if he wanted to
purchase more pills. Eventually, Palmer arranged two more sales. The first occurred on
March 12, 2013. On that date, Marley drove Palmer to a nearby Walmart parking lot and
met with the undercover officer. Palmer then sold the officer five oxycodone pills for
2
$50. A similar exchange took place on April 16, 2013, when Marley again drove Palmer
to the Walmart parking lot, and she sold eight pills to the undercover officer in exchange
for $80.
As a result of these events, the State charged Marley on May 10, 2013 with one
count of Class B felony dealing in oxycodone, a Schedule II controlled substance.
Palmer was similarly charged and came to a plea agreement with the State whereby she
would plead guilty and testify against Marley in exchange for receiving a sentence of
fifteen years, with five years to be served in the “Purposeful Incarceration”1 program and
ten years suspended to probation.
Marley, however, was unable to reach a plea agreement with the State, and on
February 20, 2014, entered into an open plea of guilty. The trial court accepted the plea
and conducted a sentencing hearing. The court found Marley’s criminal history to be an
aggravating circumstance, noting that the State could have charged Marley as an habitual
offender. The court found as mitigating Marley’s poor physical health and that he
seemed willing to participate in therapy to overcome his addiction. The court noted that
Marley had a wife and three children, but gave this little mitigating weight because there
was no evidence that Marley supported his children. The court also noted Marley’s
1
According to the Indiana Department of Correction’s website:
In 2009 the Indiana Department of Correction (IDOC) began a cooperative project with
Indiana Court Systems called Purposeful Incarceration (P.I.). The Department works in
collaboration with Judges who can sentence chemically addicted offenders and document
that they will “consider a sentence modification” should the offender successfully
complete an IDOC Therapeutic community. This supports the Department [of]
Correction and the Judiciary to get addicted offenders the treatment that they need and
work collaboratively to support their successful re-entry into society.
Purposeful Incarceration, http://www.in.gov/idoc/2798.htm (last visited Aug. 29, 2014).
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guilty plea as mitigating. The trial court then sentenced Marley to twelve years, with ten
years executed and two years suspended to probation. Marley now appeals.
Standard of Review
Even if a trial court acted within its statutory discretion in imposing a sentence,
Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent appellate
review and revision of a sentence imposed by the trial court.2 Trainor v. State, 950
N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied (citing Anglemyer v. State, 868
N.E.2d 482, 491 (Ind. 2007)). This authority is implemented via Indiana Appellate Rule
7(B), which provides that the court on appeal “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.” Id.Still, we must and should exercise deference to a trial court’s sentencing decision,
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. Id. Although we have the power to review and revise sentences, the principal
role of our review should be to attempt to level the outliers, and identify some guiding
principles for trial courts and those charged with improvement of the sentencing statutes,
but not to achieve what we perceive to be a “correct” result in each case. Fernbach v.
2
Marley does not claim that the trial court abused its discretion in sentencing him. He claims only that
his sentence is inappropriate.
4
State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied (citing Cardwell v. State,
895 N.E.2d 1219, 1225 (Ind. 2008)).
When reviewing the appropriateness of a sentence, we are not “to consider only
the appropriateness of the aggregate length of the sentence without considering also
whether a portion of the sentence is ordered suspended.” Davidson v. State, 926 N.E.2d
1023, 1024. (Ind. 2010). But “[t]his does not preclude a reviewing court from
determining a sentence to be inappropriate due to its overall sentence length despite the
suspension of a substantial portion thereof. A defendant on probation is subject to the
revocation of probation and may be required to serve up to the full original sentence.” Id.The appropriate question is not whether another sentence is more appropriate;
instead, the question is whether the sentence imposed is inappropriate. Former v. State,
876 N.E.2d 340, 344 (Ind. Ct. App. 2007). Although we need not compare the sentences
of codefendants we are not precluded from comparing sentences among those convicted
of the same or similar crimes. Knight v. State, 930 N.E.2d 20, 22 (Ind. 2010). It is the
defendant’s burden on appeal to persuade us that the sentence imposed by the trial court
is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
Discussion and Decision
Marley entered an open plea to a Class B felony. The sentencing range for a Class
B felony is six to twenty years, with ten years being the advisory sentence. Here, the trial
court imposed a sentence of two years greater than the advisory, but also eight years less
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than the maximum. It also ordered two years suspended to probation. Thus, Marley
received an executed sentence equivalent to the advisory sentence, i.e. ten years.3
A. Revisions to the Criminal Code
Marley claims that his sentence is inappropriate in light of the recent changes to
the Indiana criminal code that have, under certain circumstances, notably decreased the
sentences for drug offenses. Marley does not claim that the new criminal code statutes
apply directly to his conviction and sentence; he claims instead that we should consider
the public policy set forth in the new criminal code in determining whether his sentence
is inappropriate.
Under the version of the dealing statue in effect prior to July 1, 2014, which
Marley admits is applicable to his offense, dealing in a Schedule I, II, or III controlled
substance was a Class B felony, with a sentencing range of six to twenty years. Ind.
Code § 35-48-4-2(a) (2013).4 Under the new version of the dealing statute, which
became effective July 1, 2014, dealing in a Schedule I, II, or III controlled substance is a
Level 6 felony, with a sentencing range of six months to one and one-half years. Ind.
Code § 35-48-4-2(a) (2014). Proof of dealing in larger amounts5 can elevate this crime
3
We also note that the trial court was required to impose an executed sentence of at least six years, the
minimum sentence for a Class B felony, due to Marley’s prior felony convictions. See Ind. Code § 35-
50-2-2(b)(1) (providing that a trial court “may suspend only that part of the sentence that is in excess of
the minimum sentence . . . [if] [t]he crime committed was a Class A felony or Class B felony and the
person has a prior unrelated felony conviction.”).
4
If certain additional elements were proven, this crime could be elevated to a Class A felony, with a
sentencing range of twenty to fifty years. I.C. § 35-48-4-2(b) (2013).
5
With regard to elevation based on the amount of the controlled substance, dealing is: a Level 5 felony if
the amount is at least one gram but less than five grams; a Level 4 felony if the amount is at least five
grams but less than ten grams; a Level 3 felony if the amount is at least five grams but less than ten
grams; and a Level 2 felony if the amount is at least twenty-eight grams. Ind. Code § 35-48-4-2(c) – (f)
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up to a Level 2 felony. Ind. Code § 35-48-4-2(b) (2014). The sentencing range for a
Level 2 felony is ten to thirty years. Ind. Code § 35-50-2-4.5 (2014). Marley argues that
we should consider this reduction in the penalties for dealing in a controlled substance
when addressing whether his sentence is appropriate.
Generally speaking, the sentencing statutes in effect at the time the defendant
committed the offense govern the defendant’s sentence. Barber v. State, 863 N.E.2d
1199, 1209 (Ind. Ct. App. 2007). However, the doctrine of amelioration provides an
exception to this general rule where a defendant who is sentenced after the effective date
of a statute providing for more lenient sentencing is entitled to be sentenced pursuant to
that statute rather than the sentencing statute in effect at the time of the commission or
conviction of the crime. Id. Notably, the doctrine of amelioration does not apply where
the legislature, in a specific saving clause, expressly states an intention that crimes
committed before the effective date of the ameliorative amendment should be prosecuted
under prior law. Turner v. State, 870 N.E.2d 1083, 1087 (Ind. Ct. App. 2007).
Here, the General Assembly, in enacting the new criminal code, also enacted
savings clauses. Specifically, both Indiana Code section 1-1-5.5-21 and section 1-1-5.5-
22 state that the new criminal code “does not affect: (1) penalties incurred; (2) crimes
committed; or (3) proceedings begun” before the effective date of the new criminal code
sections, i.e., July 1, 2014. These sections also provide that “Those penalties, crimes, and
proceedings continue and shall be imposed and enforced under prior law as if [the new
(2014). Dealing in a controlled substance can also be elevated based on the presence of certain
“enhancing circumstances.” These enhancing circumstances are listed in Indiana Code section 35-48-1-
16.5 (2014).
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criminal code] had not been enacted.” Id. And, in no uncertain terms, these sections
state: “The general assembly does not intend the doctrine of amelioration (see Vicory v.
State, 400 N.E.2d 1380 (Ind. 1980)) to apply to any SECTION [of the new criminal
code].” Id.It is abundantly clear from these statutes that the General Assembly intended the
new criminal code to have no effect on criminal proceedings for offenses committed prior
to the enactment of the new code. We think this is true with regard to considering the
appropriateness of a sentence under Appellate Rule 7(B); we are to proceed as if the new
criminal code had not been enacted. We therefore decline to take into consideration the
lesser penalties of the new criminal code in addressing the appropriateness of Marley’s
sentence. Instead, we consider what Appellate Rule 7(B) requires us to consider: the
nature of the offense and the character of the offender.
B. Nature of the Offense
Marley argues that the nature of his offense was not particularly egregious. He
focuses his argument on the fact that Palmer, who he claims was the more culpable of the
two given her more active role in selling the pills to the undercover officer, was given an
executed sentence of only five years. We do not find Marley’s argument to be persuasive
at all.
Even though Marley was charged with one count of dealing in a Schedule II
controlled substance, there was evidence that he actively participated in three different
sales. And Marley admitted that he made daily trips to Cincinnati to purchase heroin.
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Although Palmer set up the drug sales, there was no indication that Marley was anything
other than a willing participant in the sales so that he could fund his heroin habit.
With regard to Marley’s claim that Palmer received a more lenient sentence, we
disagree. It appears that Palmer entered into a plea agreement with a specific sentence,
whereas Marley entered into an open plea with no sentencing limitations or
recommendations. And even though Palmer was sentenced to only five years executed,
she also received a total sentence of fifteen years versus Marley’s twelve years.6 Thus,
after she is released from her executed time, Palmer will be on probation and be subject
to serving an additional ten years if she violates the terms of her probation. See Davidson,
926 N.E.2d at 1024 (“A defendant on probation is subject to the revocation of probation
and may be required to serve up to the full original sentence.”). Therefore, the fact that
Palmer received a different sentence than Marley received does support Marley’s claim
that his sentence is inappropriate.
C. Character of the Offender.
Marley’s character also supports the trial court’s sentencing decision. Marley’s
criminal history consists of two prior felony convictions and nine misdemeanor
convictions. Appellant’s App. p. 102. His prior convictions include: domestic violence,
assault, operating while suspended, driving under the influence, disorderly conduct,
resisting arrest, and driving with no license. Id. at 101-02.
Marley attempts to minimize his criminal history by claiming that, like his instant
offense, his past crimes were all caused by his addiction, and he further notes that he has
6
There is also no indication in the record that Palmer has a criminal history comparable to Marley’s.
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sought treatment for his addiction. While we certainly commend Marley for seeking
treatment, the fact that he has a substance abuse problem is not necessarily a factor that
weighs in favor of a lesser sentence. This is especially so since Marley never sought
treatment until after his arrest for the instant offense. See Hape v. State, 903 N.E.2d 977,
1002 (Ind. Ct. App. 2009) (noting that a history of substance abuse may be a mitigating
circumstance but may also be an aggravating circumstance where the defendant is aware
of a substance abuse problem but has not taken appropriate steps to treat it); Bryant v.
State, 802 N.E.2d 486, 501 (Ind. Ct. App. 2004) (holding that trial court did not err in
finding substance abuse as an aggravating factor where defendant was aware of his
problem with drugs and alcohol yet did not take any positive steps to treat his addiction);
Bennet v. State, 787 N.E.2d 938, 948 (Ind. Ct. App. 2003) (holding that trial court did not
err in failing to find defendant’s alcohol abuse problem as mitigating, and could properly
have considered such as aggravating, where defendant was aware of problem yet never
sought help).
Conclusion
Because of the clear, unambiguous language of the savings clause statutes, we
decline to take into consideration the lesser penalties of the new criminal code when
addressing the appropriateness of Marley’s sentence. Upon considering the nature of the
offense and the character of the offender, we are unable to say that Marley’s sentence of
ten years executed and two years suspended is inappropriate.
Affirmed.
RILEY, J., and CRONE, J., concur.
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