Andrew C. Abbott 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 Jul 24 2018, 10:04 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John T. Wilson Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Andrew C. Abbott, July 24, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-670
v. Appeal from the Henry Circuit
Court
State of Indiana, The Honorable David L. McCord,
Appellee-Plaintiff. Judge
Trial Court Cause No.
33C03-1702-F6-85
Brown, Judge.
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[1] Andrew Abbott appeals his sentence for possession of methamphetamine as a
level 6 felony. Abbott raises one issue which we revise and restate as whether
his sentence is inappropriate in light of the nature of the offense and his
character. We affirm Abbott’s sentence but remand with instructions that the
trial court attach his habitual offender enhancement to his sentence for
possession of methamphetamine as a level 6 felony.
Facts and Procedural History
[2] On February 27, 2017, Abbott knowingly and intentionally possessed
methamphetamine in Henry County, Indiana. On that date, New Castle police
officers were investigating a possible theft and stopped him. He allowed the
officers to search him, and they found two baggies of a white substance and
other paraphernalia in his pockets. Abbott admitted, and field testing showed,
that the substance was methamphetamine.
[3] The State charged Abbott with possession of methamphetamine as a level 6
felony under Count I and possession of paraphernalia as a class C misdemeanor
under Count II, and it alleged that he was an habitual offender. Abbott and the
State entered into a plea agreement which provided that the class C
misdemeanor would be dismissed and that:
In consideration of [Abbott] pleading guilty to the
offense(s) of: Count I, Possession of Methamphetamine, Level 6
Felony, and admit to the Habitual Felony Offender
Enhancement, the State agrees that if the Court accepts this
agreement, the Court shall sentence defendant as follows:
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Count I - Court costs. The state recommends [Abbott] be
sentenced to two (2) years to the Indiana Department of
Correction[s].
Habitual Felony Offender Enhancement - [Abbott] be
sentenced to two (2) years to the Indiana Department of
Correction[s].
The Court will be free to assess any sentence within the
range of possibilities greater than the recommended sentence.
The parties agree that the additional sentence over the
recommended sentence will be suspended.
[Abbott] will be free to advocate a lesser sentence and the
Court will be free to impose a sentence lesser than the State’s
recommended sentence; and may use any sentence options to
include imprisonment, treatment as a Class A Misdemeanor,
direct commitment to Community Corrections to include in-
home detention or work release, or suspend any or all with
formal probation.
Appellant’s Appendix Volume II at 38. Abbott pled guilty to Count I and
admitted to being an habitual offender pursuant to the plea agreement.
[4] At sentencing on December 4, 2017, he testified that he was employed and was
in a temporarily laid-off position. He presented a paystub showing his
employment and a drug screen result form dated October 31, 2017, stating that
the reason for the test was pre-employment and that the results were negative
for all drugs tested. He indicated he received a certificate of completion of the
New Castle IOP treatment program, and stated that, if the court found
community corrections placement was appropriate, he had a place to live, and
that, until his employer called him back, he was doing side work in
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construction. Shannon Giselle, when asked about her connection with Abbott,
testified “[w]e’ve been friends for four years and the last nine months, we’ve
been hanging out again and I’ve been hiring him to help me do some
remodeling work for the place I’m renting.” Transcript Volume II at 16. When
asked how long the employment would continue, she replied “I have work for
the next two years.” Id. at 17.
[5] Abbott’s defense counsel requested that he be placed in community corrections.
The prosecutor stated that, based on Abbott’s criminal history, the State was
asking that he be sentenced to two years on Count I enhanced by two years due
to being an habitual offender. Abbott apologized for breaking the law and
stated that he never had a drug problem until he was forty years old, that he
sought treatment, and that he no longer had a drug issue.
[6] The trial court found Abbott’s criminal history and his high risk to reoffend to
be aggravating circumstances. It also noted that Abbott signed a plea
agreement with a somewhat open sentence and a cap. It sentenced him to two
years for his conviction for possession of methamphetamine under Count I and
to two years for being an habitual offender under Count III, and it ordered that
the sentence under Count III be served consecutive to the sentence under Count
I.
Discussion
[7] The issue is whether Abbott’s sentence is inappropriate in light of the nature of
the offense and his character. Ind. Appellate Rule 7(B) provides that we “may
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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 the appellate court that his or her
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[8] Abbott argues his sentence is inappropriate and the court failed to consider
alternatives to incarceration. He argues that his guilty plea was an acceptance
of responsibility and is indicative of his character. He also points to his
employment history and substance abuse treatment. The State responds that
the sentence was less than the maximum and was a sentence to which Abbott
had agreed. It also points to Abbott’s multiple contacts with the criminal justice
system over many years and his admission that the crime resulted from his
substance abuse.
[9] Ind. Code § 35-50-2-7 provides that a person who commits a level 6 felony shall
be imprisoned for a fixed term of between six months and two and one-half
years, with the advisory sentence being one year. Ind. Code § 35-50-2-8
provides in part that the court shall sentence a person convicted of a level 6
felony and found to be an habitual offender to an additional nonsuspendible
fixed term between two years and six years.
[10] Our review of the nature of the offense reveals that Abbott knowingly and
intentionally possessed methamphetamine. Officers discovered two baggies of
methamphetamine in his pockets. Our review of the character of the offender
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reveals that Abbott, who was born in August 1976, pled guilty pursuant to the
plea agreement to possession of methamphetamine as a level 6 felony under
Count I and admitted to being an habitual offender, and in exchange the State
dismissed the charge of possession of paraphernalia as a class C misdemeanor
and recommended a sentence of two years on Count I and an enhancement of
two years for being an habitual offender. The presentence investigation report
(“PSI”) indicates that Abbott’s juvenile criminal history includes charges for
burglary and resisting law enforcement in 1991 and delinquent adjudications for
theft as a class C felony if committed by an adult and resisting law enforcement
as a class D felony if committed by an adult in 1993. The PSI further indicates
that his adult criminal history includes convictions for criminal mischief,
resisting law enforcement and minor consuming alcohol in January 1995;
trespass and minor consuming alcohol in May 1995; trespass, possession of
marijuana, and possession of schedule I, II, III, or IV controlled substance in
June 1995; burglary in October 1995 for which he was sentenced to eight years;
four counts of burglary in May 2000 for which he was sentenced to an
aggregate term of sixteen years; escape in July 2000; receiving stolen property
and trespass in December 2010; and visiting a common nuisance in March 2016
and in September 2016.
[11] In addition, the PSI indicates that Abbott was employed by a tree service, that
he reported his first use of alcohol and marijuana was at the age of fifteen, his
last use of marijuana was a couple of months ago, he had also used speed,
methamphetamines, heroin, pain pills, and nerve pills and that his last use was
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a couple of months ago, and that he reported using these drugs on a weekly
basis. Abbott stated he was currently in IOP. The PSI also indicates that his
overall risk assessment score using the Indiana risk assessment system places
him in the high risk to reoffend category. After due consideration, we conclude
that Abbott has not sustained his burden of establishing that his sentence is
inappropriate in light of the nature of the offense and his character.1
[12] While we affirm Abbott’s aggregate sentence, we observe that the trial court
erroneously entered a separate two-year sentence for the habitual offender
finding to be served consecutive to the sentence for his conviction under Count
I. An habitual offender finding does not constitute a separate crime, nor does it
result in a separate sentence. See Ind. Code § 35-50-2-8. Rather, an habitual
offender finding results in a sentence enhancement imposed upon the
conviction of a subsequent felony. Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind.
2001). Pursuant to Ind. Code § 35-50-2-8, we remand with instructions that the
trial court vacate the separate sentence on the habitual offender finding and
attach the enhancement to Abbott’s sentence for possession of
1
To the extent Abbott argues the trial court abused its discretion in sentencing him, we need not address this
issue because we find that his sentence is not inappropriate under Ind. Appellate Rule 7(B). See Chappell v.
State, 966 N.E.2d 124, 134 n.10 (Ind. Ct. App. 2012) (noting that any error in failing to consider the
defendant’s guilty plea as a mitigating factor is harmless if the sentence is not inappropriate) (citing Windhorst
v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that, in the absence of a proper sentencing order, Indiana
appellate courts may either remand for resentencing or exercise their authority to review the sentence
pursuant to Ind. Appellate Rule 7(B)), reh’g denied; Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007)
(noting that, “even if the trial court is found to have abused its discretion in the process it used to sentence the
defendant, the error is harmless if the sentence imposed was not inappropriate”), trans. denied), trans. denied.
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methamphetamine as a level 6 felony under Count I and amend the sentencing
order and abstract of judgment accordingly.2
Conclusion
[13] For the foregoing reasons, we affirm Abbott’s sentence and remand for entry of
an amended sentencing order and abstract of judgment.
[14] Affirmed and remanded.
Robb, J., and Altice, J., concur.
2
This will not impact the length of Abbott’s aggregate sentence.
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