Aaron S. Buck v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Dec 14 2015, 8:48 am
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 establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Andrew C. Maternowski Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Aaron S. Buck, December 14, 2015
Appellant-Defendant, Court of Appeals Case No.
89A01-1503-CR-101
v. Appeal from the Wayne Circuit
Court.
State of Indiana, The Honorable David A. Kolger,
Judge.
Appellee-Plaintiff. Cause No. 89C01-1403-FC-30
Barteau, Senior Judge
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Statement of the Case
[1] Aaron S. Buck appeals the sentence he received for his conviction of dealing in
1
marijuana weighing more than ten pounds, a Class C felony , and his
2
adjudication as an habitual substance offender. We affirm.
Issue
[2] Buck presents one issue for our review: whether his sentence is inappropriate in
light of the nature of the offenses and the character of the offender.
Facts and Procedural History
[3] In March 2014, as part of a drug task force investigation, a search warrant was
issued for Buck’s residence. In executing the search warrant, officers found in
excess of 10 pounds of marijuana, a large amount of cash, and drug
paraphernalia. Buck was charged with dealing in marijuana, maintaining a
common nuisance, and being an habitual substance offender.
[4] On February 19, 2015, Buck pleaded guilty as charged and admitted to being an
habitual substance offender. The trial court sentenced Buck to five years for his
dealing in marijuana conviction and two years for his maintaining a common
nuisance conviction, to be served concurrently with his sentence for dealing in
marijuana. The trial court enhanced his sentence for dealing in marijuana an
1
Ind. Code § 35-48-4-10 (2013).
2
Ind. Code § 35-50-2-10 (2006) (repealed July 1, 2014).
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additional four years for his adjudication as an habitual substance offender for
an aggregate executed sentence of nine years. It is from this sentence that Buck
appeals.
Discussion and Decision
[5] Buck’s sole claim on appeal is that his sentence is inappropriate in light of the
nature of his offenses and his character. In his brief, he notes that he is only
appealing his sentences for his conviction of dealing in marijuana and his
adjudication as an habitual substance offender.
[6] Although a trial court may have acted within its lawful discretion in imposing a
sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize
independent appellate review and revision of sentences through Indiana
Appellate Rule 7(B), which provides that we may revise a sentence authorized
by statute if, after due consideration of the trial court’s decision, we determine
that the sentence is inappropriate in light of the nature of the offense and the
character of the offender. Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App.
2014). However, “we must and should exercise deference to a trial court’s
sentencing decision, both 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.” Stewart v.
State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The principal role of appellate
review under Rule 7(B) is to attempt to leaven the outliers, not to achieve a
perceived “correct” result in each case. Garner v. State, 7 N.E.3d 1012, 1015
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(Ind. Ct. App. 2014). In other words, the 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). The defendant bears the burden of persuading the
appellate court that his sentence is inappropriate. Childress v. State, 848 N.E.2d
1073, 1080 (Ind. 2006).
[7] To assess whether a sentence is inappropriate, we look first to the statutory
range established for the class of the offense at the time the offense occurred.
The offense of dealing in marijuana weighing more than 10 pounds was a Class
C felony, for which the advisory sentence was four years, with a minimum
sentence of two years and a maximum sentence of eight years. Ind. Code § 35-
50-2-6 (2005). Buck was also adjudicated an habitual substance offender for
which the minimum sentence enhancement was three years, and the maximum
was eight years. Ind. Code § 35-50-2-10(f). Here, the trial court sentenced Buck
to five years on dealing in marijuana and an additional four years on the
habitual substance offender; thus, he did not receive a maximum sentence for
either offense.
[8] The habitual substance offender statute was repealed as of July 1, 2014, after
Buck committed these offenses and was charged in March 2014. He asserts that
his sentence is rendered inappropriate by the elimination of this sentence
enhancement in the revised criminal code because it demonstrates a recognition
by our state legislature that “adding up to 8 years . . . to a marijuana offense is
inappropriate.” Appellant’s Br. p. 5.
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[9] Generally, the sentencing statutes in effect at the time a defendant commits an
offense govern the defendant’s sentence. Marley v. State, 17 N.E.3d 335, 340
(Ind. Ct. App. 2014), trans. denied. The doctrine of amelioration provides an
exception to this general rule; however, this doctrine does not apply where the
legislature has included a specific savings clause. Id. In enacting the new
criminal code, the General Assembly enacted savings clauses stating that the
new criminal code does not affect penalties incurred, crimes committed, or
proceedings begun before the effective date of the new code and that the
penalties, crimes and proceedings continue and shall be imposed and enforced
under prior law as if the new code had not been enacted. See Ind. Code §§ 1-1-
5.5-21 and 22 (2014). The statutes further state, in no uncertain terms, that the
general assembly does not intend the doctrine of amelioration to apply to any
section of the new criminal code. Id. Moreover, the time of a crime is selected
as an act of free will by the offender; thus, it is the criminal, not the State, who
chooses which statutes apply to his offense and sentence. Rondon v. State, 711
N.E.2d 506, 513 (Ind. 1999).
[10] Recently, a panel of this Court remarked, “[i]t 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.” Marley, 17 N.E.3d at 340. We
agree and therefore decline, in addressing the appropriateness of Buck’s
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sentence, to take into consideration the fact that the new criminal code
eliminated the habitual substance offender enhancement. Instead, we consider
what Appellate Rule 7(B) requires us to consider — the nature of the offense
and the character of the offender.
[11] Turning to the nature of the offense, we note that Buck was convicted of
dealing in marijuana as a Class C felony. In addition, although not challenging
his sentence on the offense, he was convicted of maintaining a common
nuisance as a Class D felony. He admitted to dealing marijuana from his
family home where he lived with his wife and their sixteen-year-old daughter.
When the officers executed the search warrant, they found more than ten
pounds of marijuana, more than $100,000.00 in cash, drug paraphernalia, guns,
and a bullet-proof vest.
[12] With regard to the character of the offender, we observe that Buck has a
criminal history that extends from his juvenile years into adulthood. As a
teenager, Buck was adjudicated a delinquent for two counts of child molesting
that would have been Class B felonies if committed by an adult.
[13] As an adult, Buck was convicted of burglary as a Class C felony in 2000, and, in
2002, his probation was revoked, and he was ordered to serve eighteen months
of his previously-suspended sentence. Later in 2002, he was convicted of a
drug-related charge of maintaining a common nuisance as a Class D felony. In
2006, he was convicted of possession of marijuana as a Class A misdemeanor.
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[14] Now Buck seeks a shorter sentence so that he can obtain substance abuse
treatment. In his brief, he blames his criminal history on his upbringing, his
limited education, and his becoming a father at a young age. Although Buck
had only an 8th grade education, he earned his GED in 2003 while incarcerated.
Moreover, he had learned carpentry skills and was working in that field when
he began dealing marijuana. At the sentencing hearing, he testified that “it was
just really the economy” that caused him to deal marijuana. Tr. p. 26. He
explained that he was not getting as much carpentry work, and he saw the
material things possessed by those involved in the drug trade, so he began
selling marijuana from his home where he lived with his wife and his teenage
daughter. Buck’s daughter wrote a letter to the court that was introduced at his
sentencing hearing, and in it she told the court that Buck had promised her he
would “never make the same mistake again.” Ex. 1. However, as evidenced by
his own words, his actions were not a mistake but rather a conscious choice he
made in order to obtain material items through illegal means.
[15] Buck not only sold marijuana, he also used it. He reported using marijuana “a
couple times per week” from ages sixteen to twenty-four and then daily from
age twenty-four to his arrest at age thirty-two. PSI p. 7. Additionally, he has
participated in substance abuse counseling during previous incarcerations but,
as evidenced by his criminal history and his admission to his ongoing marijuana
use, he has shown little interest or effort in addressing his substance abuse. It is
clear that prior brushes with the law as well as attempts at substance abuse
programs have proven ineffective to rehabilitate Buck. If Buck truly wants to
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end his substance abuse and support his family in a law-abiding manner, the
Department of Correction offers substance abuse programs. Buck has not
carried his burden of persuading this Court that his sentence has met the
inappropriateness standard of review.
Conclusion
[16] For the reasons stated, we conclude that Buck’s sentence is not inappropriate in
light of his offenses and his character.
[17] Affirmed.
[18] Barnes, J., and Brown, J., concur.
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