Dyshaun Tyrell Elliott v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Oct 20 2016, 10:02 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ana M. Quirk Gregory F. Zoeller
Muncie, Indiana Attorney General of Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dyshaun Tyrell Elliott, October 20, 2016
Appellant-Defendant, Court of Appeals Case No.
18A04-1603-CR-560
v. Appeal from the Delaware Circuit
Court
State of Indiana, The Honorable Linda Ralu Wolf,
Appellee-Plaintiff. Judge
Trial Court Cause No.
18C03-1406-FA-5
Bailey, Judge.
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Case Summary
[1] Dyshaun Tyrell Elliott (“Elliott”) challenges the twelve-year sentence imposed
upon his plea of guilty to Dealing in Cocaine, as a Class B felony. 1 He presents
the sole issue of whether the trial court abused its sentencing discretion by
recognizing improper aggravating circumstances. We affirm.
Facts and Procedural History
[2] On June 10, 2014, the State charged Elliott with three counts of Dealing in
Cocaine, one as a Class A felony, and two as Class B felonies, and one count of
Maintaining a Common Nuisance, as a Class D felony. 2 On December 17,
2015, pursuant to a plea agreement with the State, Elliott pled guilty to one
count of Dealing in Cocaine, as a Class B felony, and the other charges were
dismissed. Sentencing was left to the discretion of the trial court. At the guilty
plea hearing, Elliott admitted that he had, on June 3, 2014, delivered cocaine in
Delaware County, Indiana.
[3] On February 15, 2016, the trial court sentenced Elliott to twelve years
imprisonment, with two years suspended to probation. This appeal ensued.
Discussion and Decision
1
Ind. Code § 35-48-4-1.
2
I.C. § 35-48-4-13 [repealed and re-codified at I.C. § 35-45-1-5.]
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[4] Indiana Code Section 35-50-2-5 provides that a person convicted of a Class B
felony faces a sentencing range of six to twenty years, with the advisory sentence
being ten years. In imposing the twelve-year sentence upon Elliott, the trial court
recognized as mitigating circumstances: Elliott’s guilty plea, family support,
remorse, and undue hardship to his children. The trial court recognized as
aggravators: Elliott’s juvenile adjudications, substance abuse, conduct awaiting
trial (including more than 30 violations of rules of incarceration and the
revocation of pre-trial home detention), the care and planning involved in the
crime, the failure of prior rehabilitative efforts, and the amount of cocaine
involved, 21 grams. Elliott argues that the trial court improperly considered
dismissed charges, juvenile adjudications, and the degree of care and planning
involved.
[5] “So long as the sentence is within the statutory range, it is subject to review
only for abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.
2007), clarified on other grounds, 875 N.E.2d 218 (Ind. 2007). This includes the
finding of an aggravating circumstance and the omission to find a proffered
mitigating circumstance. Id. at 490-91. When imposing a sentence for a felony,
the trial court must enter “a sentencing statement that includes a reasonably
detailed recitation of its reasons for imposing a particular sentence.” Id. at 491.
[6] The trial court’s reasons must be supported by the record and must not be
improper as a matter of law. Id. However, a trial court’s sentencing order may
no longer be challenged as reflecting an improper weighing of sentencing factors.
Id. A trial court abuses its discretion if its reasons for imposing a particular
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sentence are 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. Hollin v. State, 877 N.E.2d 462, 464 (Ind. 2007).
[7] Elliott notes that the Pre-Sentence Investigation Report listed as “present
offenses” the dismissed Counts 1, 3, and 4. According to Elliott, “it is prejudicial
to include these offense[s] when Mr. Elliott only admitted to Count 2 of the
Informations,” and “the trial court erred when it considered the alleged crimes”
as an aggravating circumstance. (Appellant’s Br. at 18-19.) The sentencing
record does not support Elliott’s suggestion that the trial court considered the
dismissed charges as a discrete aggravating circumstance. Rather, the trial court
observed in its oral sentencing statement that Elliott had received a benefit from
having the charges dismissed.3
[8] The trial court found that Elliott has a history of juvenile adjudications.
Specifically, on June 13, 2007, Elliott was found to have committed an act that
would be battery with bodily injury, a Class A misdemeanor if committed by an
adult. On March 20, 2009 and on May 25, 2011, Elliott was found to have
possessed marijuana, acts that would be a Class A misdemeanor and a Class D
felony, respectively, if committed by an adult. According to Elliott, the trial
court needed greater specificity as to Elliott’s actual conduct. “Without more
3
Also, the trial court recognized the large amount of cocaine, twenty-one grams, as an aggravator. Unless a
plea agreement specifically forbids a judge from considering dismissed charges, the trial court may consider
circumstances supporting charges which were dismissed as part of a plea agreement. Bethea v. State, 983
N.E.2d 1134, 1145 (Ind. 2013).
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information regarding Mr. Elliott’s juvenile adjudications, it was inappropriate
for the trial court to consider his juvenile record in determining that he had a
prior criminal history to enhance his sentence.” (Appellant’s Br. at 18.)
[9] Elliott directs our attention to Jordan v. State, 512 N.E.2d 407 (Ind. 1987), an
appeal from the dismissal of a petition for post-conviction relief challenging a
juvenile adjudication. In concluding that post-conviction proceedings were
unavailable to the petitioner, our Indiana Supreme Court observed that juvenile
adjudications do not constitute criminal convictions. Id. at 408. The Court
further explained:
The statement, made by the Court of Appeals, that: “…a record
of adjudication of juvenile delinquency may be considered as an
aggravating circumstance to support enhancement of a criminal
sentence,” is incorrect. An adjudication of delinquency is not a
fact that can be used by a sentencing court to enhance a criminal
sentence. Rather, the sentencing court may consider prior
criminal conduct or history of criminal activity as an aggravating
factor. A juvenile history detailed in a pre-sentence report filed
with the trial court may suffice as evidence of a criminal history,
and thus constitute an aggravating circumstance. Sims v. State
(1981), Ind. App., 421 N.E.2d 698, 703. This Court has found
the sentencing judge acted properly when he referred to a
juvenile record which established that a defendant had a history
of criminal conduct and there was a risk that this pattern could
continue. Evans v. State (1986), Ind., 497 N.E.2d 919, 923. No
mention is made of adjudication of delinquency. The
aggravating factor being considered is a pattern of criminal
activity or conduct from which the sentencing judge may
evaluate whether this person might continue the pattern and
commit crimes in the future.
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Jordan, 512 N.E.2d at 410. Elliott properly claims that the appropriate focus is
upon conduct as opposed to the adjudication. However, he does not deny that
his Pre-Sentence Investigation Report, admitted without objection, provides
details of his juvenile history. He has shown no deficiency in the trial court’s
evaluative process.
[10] Also, the trial court found that there had been “a degree of care and planning
involved in the commission of the crime,” explaining “[Elliott] coordinated
with his supplier as well as his customers to commit the crime of dealing in
cocaine.” (Tr. at 37.) Elliott points out that the factual basis developed at the
guilty plea hearing did not include evidence as to a particular supplier or
customer. Generally, the nature and circumstances of a crime may properly be
considered to be an aggravator. McCann v. State, 749 N.E.2d 1116, 1120 (Ind.
2001). Nonetheless, even if a trial court has relied upon an improper factor as
an aggravating circumstance, the sentence may be upheld so long as other valid
aggravating circumstances exist. Bacher v. State, 722 N.E.2d 799, 803 (Ind.
2000). Here, other valid aggravators exist. Elliott, who violated the conditions
of his pre-trial home detention and had more than thirty conduct violations
during his pre-trial incarceration, received a sentence of two years greater than
the advisory sentence. Two years were suspended to probation. Elliott has not
demonstrated that the trial court abused its sentencing discretion.
[11] Affirmed.
Riley, J., and Barnes, J., concur.
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