Kenneth Jaquin Washington v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Aug 18 2015, 9:17 am
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
Marce Gonzalez, Jr. Gregory F. Zoeller
Dyer, Indiana Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kenneth Jaquin Washington, August 18, 2015
Appellant-Defendant, Court of Appeals Case No.
45A03-1501-CR-11
v. Appeal from the Lake County
Superior Court;
The Honorable Salvador Vasquez,
State of Indiana, Judge;
Appellee-Plaintiff. 45G01-1401-FA-4
May, Judge.
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[1] Kenneth Jaquin Washington appeals his five-year sentence for Class C felony
possession of cocaine. 1 As his sentence is not inappropriate, we affirm.
Facts and Procedural History
[2] On April 3, 2013, Washington sold cocaine to a confidential informant.
Washington was charged with three counts of Class B felony dealing in
cocaine, 2 two counts of Class D felony possession of cocaine, 3 and one count of
Class C felony possession of cocaine. Washington agreed to plead guilty to
Class C felony possession of cocaine with a sentencing cap of six years. The
remaining charges were dismissed.
[3] At sentencing, the trial court found as mitigators that Washington took
responsibility and agreed to plead guilty. As aggravators, the trial court
considered Washington’s criminal history, which included two prior felony
convictions involving cocaine, and it noted prior judicial leniency had no
deterrent effect on Washington’s behavior. The trial court sentenced
Washington to five years in the Department of Correction.
Discussion and Decision
[4] When a defendant enters a plea agreement but the trial court retains sentencing
discretion, even within an agreed-upon cap, a defendant “is entitled to contest
1
Ind. Code § 35-48-4-6(a)(b)(1)(A) (2006).
2
Ind. Code § 35-48-4-1 (2006).
3
Ind. Code § 35-48-4-6(a) (2006).
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the merits of a trial court’s sentencing discretion.” Tumulty v. State, 666 N.E.2d
394, 396 (Ind. 1996). We may revise a sentence if it is inappropriate in light of
the nature of the offense and the character of the offender. Williams v. State, 891
N.E.2d 621, 633 (Ind. Ct. App. 2008) (citing Ind. Appellate Rule 7(B)). We
consider not only the aggravators and mitigators found by the trial court, but
also any other factors appearing in the record. Roney v. State, 872 N.E.2d 192,
206 (Ind. Ct. App. 2007), trans. denied. The appellant bears the burden of
demonstrating his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073,
1080 (Ind. 2006).
[5] When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence. Anglemyer v. State, 868
N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The
sentencing range for a Class C felony is “a fixed term of between two (2) and
eight (8) years, with the advisory sentence being four (4) years.” Ind. Code §
35-50-2-6 (2005). Washington requests we reduce his five-year sentence to the
advisory four years.
[6] Regarding the nature of his offense, Washington was contacted by a
confidential informant wanting to purchase cocaine. Washington employed the
services of third parties to be “his mules.” (Tr. at 5.) He was trying to “ga[me]
the system.” (Id.) In this way, he sought to protect himself from prosecution.
[7] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.
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Ohio App. 2007). The significance of a criminal history in assessing a defendant’s
character varies based on the gravity, nature, and number of prior offenses in
relation to the current offense. Id. Washington’s criminal history includes
felony convictions of dealing and possession of cocaine, along with various
misdemeanors. Washington was sentenced to two years in a work release
program for one felony and seven years in DOC for the other. Neither deterred
him from reoffending.
[8] Washington’s assertion that his cocaine addiction is a mitigator is not supported
by the record. Washington states he uses cocaine only “in his cigarettes and
smoke[s] it once a month.” (App. at 70.) 4 Washington has not sought
treatment despite two previous convictions involving cocaine. See Caraway v.
State, 959 N.E.2d 847, 952 (Ind. Ct. App. 2011) (no error when trial court found
as an aggravator that Caraway recognized addiction but did not seek
treatment), trans. denied.
[9] Washington has not demonstrated his five-year sentence is inappropriate in
light of his character and his offense. Accordingly, we affirm.
Crone, J., and Bradford, J., concur.
4
Per Indiana Administrative Rule 9(G)(2)(b), the presentence investigation (PSI) report must be excluded
from public access. We have included confidential information in this decision only to the extent it “is
essential to the resolution” of Washington’s claim on appeal. Ind. Admin. Rule 9(G)(7)(a)(ii)(c).
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