Joseph L. Leszcynski v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Mar 20 2018, 10:35 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jane Ann Noblitt Curtis T. Hill, Jr.
Columbus, Indiana Attorney General of Indiana
Lee M. Stoy, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joseph L. Leszcynski, March 20, 2018
Appellant-Defendant, Court of Appeals Case No.
03A01-1710-CR-2350
v. Appeal from the Bartholomew
Superior Court.
The Honorable James D. Worton,
State of Indiana, Judge.
Appellee-Plaintiff. Trial Court Cause No.
03D01-1703-F5-1848
Shepard, Senior Judge
[1] Joseph Leszcynski twice sold heroin to a confidential informant, pleaded guilty
to dealing in a narcotic drug as a Level 5 felony, and was sentenced to five years
executed in the Indiana Department of Correction. The trial court
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recommended he be placed in a therapeutic community while serving his
sentence. He appeals, arguing his sentence is inappropriate. We affirm.
Facts and Procedural History
[2] On May 17 and 19, 2016, a confidential informant (CI) contacted a Columbus
Police Department detective and informed him that the CI could purchase
heroin from Leszcynski. Controlled buys were arranged. The CI, accompanied
by another detective, drove to the buy locations. On each occasion, when they
arrived, Leszcynski approached the window of the vehicle; the CI gave
Leszcynski the buy money; and Leszcynski gave the CI less than one gram of
heroin.
1
[3] The State charged two counts of dealing in a narcotic drug as Level 5 felonies.
Leszcynski pleaded guilty and, as a part of the plea agreement, the State agreed
to dismiss the second count and not file charges in an unrelated case. The trial
court accepted the plea agreement and sentenced Leszcynski to five years
executed with a recommendation that he be placed in a therapeutic community
while serving the sentence. The court indicated it would consider a sentence
modification upon Leszcynski’s successful completion of the therapeutic
community.
1
Ind. Code § 35-48-4-1(a)(1) (2014).
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Issue
[4] The sole issue Leszcynski raises on appeal is whether his sentence is
inappropriate in light of the nature of his offense and his character.
Discussion and Decision
[5] Indiana 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. The defendant bears the burden of persuasion in this
court. Childress v. State, 848 N.E.2d 1073 (Ind. 2006). Whether we regard a
sentence as inappropriate turns on the “culpability of the defendant, the severity
of the crime, the damage done to others, and myriad other factors that come to
light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
“[S]entencing is principally a discretionary function in which the trial court’s
judgment should receive considerable deference.” Id. at 1222.
[6] When determining whether a sentence is inappropriate, we acknowledge that
the advisory sentence is the starting point the General Assembly has selected as
an appropriate sentence for the crime committed. Childress, 848 N.E.2d 1073.
Here, Leszcynski was convicted of a Level 5 felony, for which the sentencing
range is between one and six years, with an advisory sentence of three
years. See Ind. Code § 35-50-2-6 (2014). Leszcynski’s sentence is thus above
the advisory but below the maximum allowed under the statute.
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[7] As to the nature of Leszcynski’s offense, he admitted to selling heroin on two
separate occasions to a confidential informant. The trial court was justified in
observing that selling heroin represents a danger to others.
[8] Regarding character, Leszcynski has a history of delinquency and criminal
offenses. He has been convicted of six misdemeanors and three felonies; his
felony convictions are drug-related; and his probation has been “closed
unsuccessfully” four times and fully or partially revoked four times. Moreover,
he was on probation at the time he committed the instant offense. Leszcynski
postulates that he suffers from a drug addiction and has not had the opportunity
to participate in a comprehensive drug treatment program outside DOC.
However, on several occasions, he was ordered by the trial court to undergo
2
drug treatment, but failed to complete the programs.
[9] Leszcynski intersperses his inappropriate sentence argument with assertions
that reference an abuse of discretion standard, specifically, that the trial court
should have found as mitigating factors that his offense did not cause harm to
persons or property, that he suffers from drug addiction, and that, at sentencing,
he asked the court for help with his drug addiction. However, our Supreme
Court has made clear that inappropriate sentence and abuse of discretion claims
2
We note the trial court was not unsympathetic to Leszcynski’s substance abuse problems as it
recommended placement in a therapeutic community in the DOC where he would be afforded intensive
substance abuse treatment. See INDIANA DEPARTMENT OF CORRECTION,
https://www.in.gov/idoc/2798.htm (last visited March 8, 2018).
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are to be analyzed separately. See Anglemyer v. State, 868 N.E.2d 482 (Ind.
2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). Leszcynski does not fully
develop his arguments concerning the trial court’s assessment of mitigating
factors. As such, any claims of error of this nature are not preserved. See Foutch
v. State, 53 N.E.3d 577, 580 n.1 (Ind. Ct. App. 2016) (noting that party must
make cogent argument regarding abuse of discretion in sentencing separate
from inappropriateness analysis to preserve claim for appellate review).
Conclusion
[10] Leszcynski’s five-year sentence is not inappropriate in light of his offense and
his character.
[11] Affirmed.
Bailey, J., and Barnes, J., concur.
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