Jimmy Dale Acrey 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 Mar 06 2020, 10:46 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
Marjorie Lawyer-Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jimmy Dale Acrey, March 6, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2536
v. Appeal from the
Henry Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff. Kit C. Dean Crane
Trial Court Cause No.
33C02-1806-F2-7
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2536 | March 6, 2020 Page 1 of 5
[1] Following his guilty plea to possession of methamphetamine as a Level 3
felony,1 Jimmy Dale Acrey (“Acrey”) was sentenced to sixteen years in the
Department of Correction. Contending that his sentence is inappropriate in
light of both the nature of the offense and defendant’s character, he now
appeals.
[2] We affirm.
Facts and Procedural History
[3] Acrey’s sale of methamphetamine to a confidential informant prompted police
to execute a search warrant at his home on June 27, 2018. During the search,
police found over 360 grams of methamphetamine, drug pipes, a handgun,
marijuana, drug paraphernalia, and a large amount of cash.
[4] The State charged Acrey with two counts of dealing in methamphetamine,
unlawful possession of a firearm by a serious violent felon, unlawful possession
of a syringe, two counts of maintaining a common nuisance, possession of
paraphernalia, and possession of marijuana. Acrey agreed to plead guilty to
possession of methamphetamine as a Level 3 felony, and the State agreed to
dismiss the remaining counts and to not seek an habitual enhancement.
1
See Ind. Code § 35-48-4-1.1.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2536 | March 6, 2020 Page 2 of 5
Sentencing was left to the trial court’s discretion, and the trial court sentenced
Acrey to sixteen years.
Discussion and Decision
[5] Acrey argues that his sentence is inappropriate. Article 7, Sections 4 and 6 of
the Indiana Constitution authorize independent appellate review and revision
of a sentence imposed by the trial court. Roush v. State, 875 N.E.2d 801, 812
(Ind. Ct. App. 2007). Pursuant to Indiana Appellate Rule 7(B), this court “may
revise a sentence authorized by statute if, after due consideration of the trial
court’s decision, the [c]ourt finds that the sentence is inappropriate in light of
the nature of the offense and the character of the offender.” Acrey bears the
burden of persuading us that his sentence is inappropriate. Id.
[6] Acrey’s criminal history dates back to 1960. He was placed in the Indiana Boys
School five times in five years beginning when he committed auto theft and
burglary at the age of twelve. As an adult, he has nine felony convictions in
Indiana, several more in Kentucky, and numerous misdemeanor convictions.
Acrey has had a serious drug habit for many years and has used
methamphetamine since 1985. He had treatment opportunities in a therapeutic
community at New Castle Correctional Facility for fourteen months, but he
admitted he only used that program to earn a time cut. He continued to use
drugs while he was in prison, and he admitted using methamphetamine while
in jail pending trial in this case.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2536 | March 6, 2020 Page 3 of 5
[7] During the sentencing hearing, the trial court referenced Acrey’s age of seventy-
one years old, noting that “somebody at that age can control their own
destiny.” Tr. II at 38. The trial court also noted that he has ill health and is an
addict. However, the trial court noted:
I look through this, and there is a long and storied history of
felonies, executed time, there’s been efforts at probation, there’s
been efforts at community corrections, there’s been efforts in the
past with regard to treatment with – at a minimum, within the
Department of Corrections, all those things did not rehabilitate
Mr. Acrey, and those things did not stop the current matter that’s
before the Court right now. Mr. Acrey’s criminal activity far
outweighs any purported mitigators, and the Court doesn’t
recognize any mitigators with regard to Mr. Acrey. Mr. Acrey,
frankly, sir, with your history you’re pretty fortunate to have
avoided a thirty-year sentence on a level two felony in my
humble opinion.
Id. at 39.
[8] As this court has recognized, the nature of the offense is found in the details
and circumstances of the commission of the offense and the defendant’s
participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). Acrey was in
possession of nearly 400 grams of methamphetamine, many times the amount
necessary to violate the statute. In addition, Acrey received a significant benefit
from the plea agreement by having seven charges dismissed and avoiding an
habitual offender enhancement. Furthermore, Acrey’s character warrants the
sentence imposed. He has an extensive criminal history and a lengthy pattern
of drug use without any serious attempt at rehabilitation. Acrey has failed to
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2536 | March 6, 2020 Page 4 of 5
establish that the sixteen-year sentence was inappropriate in light of either the
nature of the offense or defendant’s character.
[9] Affirmed.
Bailey, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2536 | March 6, 2020 Page 5 of 5