Billy Joe Conn, Jr. v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 15 2020, 8:59 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Angela N. Sanchez
Assistant Section Chief for
Criminal Appeals
Anna W. Elcesser
Deputy Attorney General
Matthew B. MacKenzie
Deputy Attorney General
Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Billy Joe Conn, Jr., December 15, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2307
v. Appeal from the Dearborn Circuit
Court
State of Indiana, The Honorable James D.
Appellee-Plaintiff. Humphrey, Judge
Trial Court Cause No.
15C01-1808-F2-35
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Brown, Judge.
[1] Billy Joe Conn, Jr., appeals his sentence for dealing in methamphetamine over
ten grams as a level 2 felony and asserts his sentence is inappropriate. We
affirm.
Facts and Procedural History
[2] On August 29, 2018, Indiana State Police Master Trooper James Wells received
information from Ohio law enforcement that Conn would be traveling
eastbound on I-74 in a 1999 Jeep Grand Cherokee with a certain license plate
and would be in possession of contraband. Trooper Wells monitored
eastbound traffic and observed Conn’s vehicle traveling in the left lane of the
interstate. Trooper Wells pulled onto the roadway, accelerated to catch up to
the vehicle, observed Conn move to the right lane without signaling and cutting
off a semi, and initiated a traffic stop.
[3] As Trooper Wells approached Conn’s vehicle, he noticed Conn looking over
his right shoulder “like he was trying to find [his] location,” which “put [him]
on a heightened alert.” Transcript Volume II at 117. Trooper Wells asked
Conn to accompany him to his police cruiser. While Trooper Wells conducted
a records check, Indiana State Police Trooper Jordan Craig, a K-9 handler who
had responded to the location, retrieved his K-9 and performed a sniff of Conn’s
vehicle, and the K-9 alerted. At some point, Trooper Wells asked Conn if
everything in his vehicle was his, and he answered affirmatively. Based on the
positive alert, Trooper Wells conducted a search of the vehicle and discovered a
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large plastic bag on the floorboard in front of the driver’s seat containing a clear
plastic bag as well as a package wrapped with black paper and tape and over
580 grams of methamphetamine.
[4] On August 30, 2018, the State charged Conn with dealing in methamphetamine
over ten grams as a level 2 felony and alleged that he was an habitual offender. 1
A jury found him guilty as charged and that he was an habitual offender.
[5] At the sentencing hearing, the trial court referenced the loss of four days of
credit time following the August 29, 2018 arrest, and Conn’s counsel indicated
that he believed it was for a fight incident. The court took judicial notice of
letters filed by Conn’s mother, sister, and cousins. Conn’s father testified that
Conn was a “very polite and hard-working young man” and that he had issues
with substance abuse at one time. Sentencing Transcript at 8. He testified that
treatment would be a “big help” and Conn had “[v]ery little” treatment prior to
his arrest. Id. at 9. He stated Conn “quit using on his own,” “just didn’t go
through the treatment,” and “should have went through treatment.” Id. at 10-
11. He indicated Conn was more family oriented when he was clean and sober.
Conn’s father also indicated that he himself had been incarcerated twice in his
life and received treatment which changed his life. When asked on cross-
examination if he noticed any signs that Conn had been using, he answered:
“Well, just all of a sudden, he quit, we couldn’t get a hold of him, you know, it
1
The State also charged Conn with possession of methamphetamine over twenty-eight grams as a level 3
felony, but the count was dismissed before trial.
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was a sign that he was using again. When he was straight and sober, he was
always there to talk to you.” Id. at 14.
[6] The court found Conn’s lengthy criminal history and the nature and
circumstances of the offense to be substantial aggravating circumstances.
Specifically, the court stated that “the amount of drugs involved was five
hundred and eighty-two (582) grams, and that’s over fifty (50) times the amount
necessary to elevate the offense to a Level 2 felony.” Id. at 28. The court found
the fact that Conn was on probation at the time of the offense was an
aggravating circumstance. The court indicated it considered the letters received
from Conn’s family members and the testimony of Conn’s father but found they
did not constitute a significant mitigating factor. It found insufficient evidence
to show a substantial hardship to family or dependents based upon his possible
future incarceration. It also stated that the evidence indicated that Conn was a
high level drug dealer and not a user, and it found there were no significant
mitigating factors. The court found that the aggravating factors substantially
outweighed any mitigating factors, sentenced Conn to thirty years for dealing in
methamphetamine as a level 2 felony, and enhanced the sentence by twenty
years for his status as an habitual offender for an aggregate sentence of fifty
years.
Discussion
[7] Conn does not dispute that the quantity of methamphetamine he possessed was
significantly more than necessary to elevate his offense to a level 2 felony, but
he asserts that the fact that he possessed a larger quantity “did not somehow
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make his intent more malicious.” Appellant’s Brief at 11. Conn argues that
when he was only ten years old his father went to prison for two years and that,
before his father returned to prison beginning in 2002, he had already begun to
exhibit antisocial behavior. He asserts that he struggled with depression during
that time and needed psychiatric treatment. He also points out that he never
received a high school diploma, he used drugs and alcohol as a teenager, and
that most of his felony convictions are drug-related. He cites to letters from his
family and asserts he was active in his children’s lives during his periods of
freedom. He contends that he has never served a lengthy amount of time in
prison, he served just over eighteen months in the Indiana Department of
Correction, and “[i]t is unlikely [he] has had the opportunity before this case to
complete treatment programs targeted at changing his thinking and confronting
the trauma he experienced from the incarceration of his father for a significant
period of his childhood.” Id. at 12. He asserts “[a] 50-year sentence that would
imprison [him] until his 70s is not a true opportunity for rehabilitation.” Id.
[8] The State argues that Conn’s sentence is not inappropriate in light of his
transportation of over 582 grams of methamphetamine over state lines, his
involvement in a large-scale drug operation, and his significant criminal history.
[9] Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, [we find] that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender.” Under this rule, the burden is on the defendant to persuade
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the appellate court that his or her sentence is inappropriate. Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006).
[10] Ind. Code § 35-50-2-4.5 provides that a person who commits a level 2 felony
shall be imprisoned for a fixed term of between ten and thirty years with the
advisory sentence being seventeen and one-half years. Ind. Code § 35-50-2-8(i)
provides in part that “[t]he court shall sentence a person found to be a habitual
offender to an additional fixed term that is between . . . six (6) years and twenty
(20) years, for a person convicted of” a level 2 felony and “[a]n additional term
imposed under this subsection is nonsuspendible.”
[11] Our review of the nature of the offense reveals that Trooper Wells stopped
Conn’s vehicle and discovered over 580 grams of methamphetamine after being
alerted by Ohio law enforcement. Trooper Wells testified that he did not
observe any signs of impairment by methamphetamine during his conversation
with Conn and that the packages discovered in Conn’s vehicle were consistent
with distribution. When asked to describe where Conn “fit on that pyramid” of
drug distribution, Trooper Wells answered: “[H]e’s the next level up, he’s . . .
the dealer that’s bringing the drugs into the community.” Transcript Volume II
at 152.
[12] Our review of the character of the offender reveals that the presentence
investigation report (“PSI”) indicates that Conn, who was born in 1984, has an
eleven-year-old daughter whom he has seen only four times and a four-year-old
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son. 2 Both of his children were born while Conn was in prison. Conn indicated
he first drank alcohol around age sixteen to eighteen and last drank when he
was twenty-one years old. 3 He indicated he first tried marijuana at age sixteen
and last used a couple of days prior to his arrest in September 2013. He
indicated he tried cocaine and methamphetamine a few times around age
seventeen to eighteen and last used at age eighteen. The PSI indicates that
Conn previously described his mental health as “‘good’ with no problems or
medications reported.” Appellant’s Appendix Volume III at 12. With respect
to his family, the PSI indicates that Conn reported that he had a good
childhood and that his father was incarcerated for at least twelve years.
[13] As a juvenile, Conn was alleged to have committed burglary, possession of
marijuana, and theft in 1999. The PSI lists an adjudication and disposition date
of March 1, 2000, and indicates that wardship was granted to Logansport
Intake Facility for assessments, diagnostics, and evaluations, and he was placed
on probation. In 2000, he was alleged to have committed possession of a
controlled substance, possession of marijuana, and operating while intoxicated
while endangering a person. In 2001, he was alleged to have committed escape.
The PSI lists an adjudication and disposition date of January 24, 2001, for his
2000 and 2001 offenses and indicates he was sentenced to probation until age
2
The PSI indicates that Conn declined to participate in the presentence investigation interview and that the
probation officer relied, to a large degree, on a presentence investigation report completed in July 2015.
3
The PSI indicates this substance use history was listed in the 2015 presentence investigation.
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eighteen, day reporting, and community service. In 2002, a petition for
probation violation was filed under each of the January 24, 2001 dispositions,
and he was committed to “Henry County Youth Center until age 18 then
transported to Fayette County Jail to serve remainder of sentence of 120 days,
18 days credit.” Id. at 5.
[14] As an adult, Conn was charged in 2002 with possession of a controlled
substance as a class D felony and possession of marijuana as a class A
misdemeanor and found guilty in 2005. In 2003, he was charged in Kentucky
with unlawful possession of meth precursor and complicity to receiving stolen
property and was sentenced to two years in 2010. 4 That same year, Conn was
charged in Ohio with Count I, trafficking, Count II, possession of a controlled
substance, Count III, carrying a concealed weapon, and Count IV, possession
of criminal tools. Counts I, II, and IV were “[n]ollied by the Court – no
probable cause found,” and Count III was “ignored by grand jury.” Id. at 7.
That same year, Conn was convicted in Ohio of possession of drug
paraphernalia and resisting arrest. Also in 2003, Conn was charged in Ohio
with aggravated possession of drugs, possession of marijuana, illegal
use/possession of drug paraphernalia, and illegal manufacture of drugs. The
narrative in the PSI indicates he was sentenced to three years for illegal
manufacture of drugs and that “all other counts run concurrent to” that offense.
4
Under “Additional Information,” the PSI states: “Originally charged as Manufacture Methamphetamine,
1st Offense then ‘amended down’.” Appellant’s Appendix Volume III at 7.
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Id. In 2007, Conn was convicted in Ohio of illegal manufacture of drugs,
trafficking in marijuana, and having weapons while under disability. In 2012,
Conn was convicted in Ohio of driving without a valid license. In 2014, Conn
was convicted of possession of marijuana as a class D felony, resisting law
enforcement as a class D felony, reckless driving as a class B misdemeanor, and
possession of cocaine, methamphetamine, or a schedule I or II narcotic drug.
In 2015, Conn was convicted of domestic battery as a class A misdemeanor and
possession of a controlled substance and more than ten grams of a precursor
within 1,000 feet of school property as class C felonies, and was found to be an
habitual offender. The PSI states that Conn has a total of fourteen prior felony
convictions and ten prior misdemeanor convictions as well as juvenile offenses
that include felony adjudications. Conn was on probation for felony drug
charges when he committed the current offense. The PSI also provides that
Conn’s overall risk assessment score using the Indiana Risk Assessment System
places him in the high risk to reoffend category.
[15] After due consideration and in light of his lengthy criminal history and the
significant amount of methamphetamine in his possession, we conclude that
Conn has not sustained his burden of establishing that his sentence is
inappropriate in light of the nature of the offense and his character.
[16] For the foregoing reasons, we affirm Conn’s sentence.
[17] Affirmed.
Vaidik, J., and Pyle, J., concur.
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