Dewayne T. Anderson 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 May 11 2017, 7:59 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dewayne T. Anderson, May 11, 2017
Appellant-Defendant, Court of Appeals Case No.
36A01-1612-CR-2766
v. Appeal from the Jackson Circuit
Court
State of Indiana, The Honorable Richard W.
Appellee-Plaintiff. Poynter, Judge
Trial Court Cause No.
36C01-1509-F2-18
Najam, Judge.
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Statement of the Case
[1] Dewayne Anderson appeals his sentence following his conviction for dealing in
a narcotic drug, as a Level 2 felony. Anderson presents a single issue for our
review, namely, whether his sentence is inappropriate in light of the nature of
the offense and his character. We affirm.
Facts and Procedural History
[2] On September 13, 2015, while Anderson was on “supervised federal probation”
for a prior heroin-related conviction, a law enforcement officer conducted a
traffic stop on Interstate 65 in Jackson County and found in Anderson’s vehicle
forty grams of heroin, twenty-six grams of marijuana, seven and a half grams of
cocaine, eighty grams of a cutting agent, digital scales, and 100 small plastic
baggies. Appellant’s App. Vol. 3 at 7. The State charged Anderson with five
felony counts and one misdemeanor count. Anderson pleaded guilty to dealing
in a narcotic drug, as a Level 2 felony, and in exchange for that plea, the State
dismissed the other charges. The trial court accepted the plea, entered
judgment of conviction, and sentenced Anderson to twenty years executed.
This appeal ensued.
Discussion and Decision
[3] Anderson contends that his sentence is inappropriate in light of the nature of
the offense and his character. As we have explained:
Indiana Appellate Rule 7(B) permits an Indiana appellate court
to “revise a sentence authorized by statute if, after due
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consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and
the character of the offender.” We assess the trial court’s
recognition or nonrecognition of aggravators and mitigators as an
initial guide to determining whether the sentence imposed was
inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct.
App. 2006). The principal role of appellate review is to “leaven
the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). A defendant must persuade the appellate court that his or
her sentence has met the inappropriateness standard of review.
Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).
Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).
[4] Anderson maintains that his twenty-year sentence is inappropriate in light of
the nature of the offense because he had no intent to deal narcotics, but
intended to share the drugs with his friends at a “large party”; he complied with
law enforcement during the traffic stop; and he did not endanger anyone.
Appellant’s Br. at 11. And Anderson maintains that his sentence is
inappropriate in light of his character because “his most recent [prior]
conviction occurred fifteen (15) years” ago; he has “never received any
substantial drug treatment to assist him with addiction recovery”; he pleaded
guilty to the highest level felony count with which he was charged; he has
health issues; and he has a supportive family. Id. at 10. We cannot agree.
[5] Regarding the nature of the offense, a defendant’s possession of ten grams of
cocaine or a narcotic drug is sufficient to support a Level 2 felony conviction,
and Anderson possessed forty grams of heroin and seven and a half grams of
cocaine. Regarding his character, Anderson’s criminal history, without more,
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supports the twenty-year sentence in this case. Anderson’s prior state and
federal convictions date back to 1988 and include “trafficking” in cocaine,
“trafficking” in marijuana, and “trafficking” in heroin, and he has previously
violated parole. Appellant’s App. Vol. 3 at 6-7. At the time of the instant
offense, Anderson had just been released from federal prison on a heroin-related
conviction eight months’ prior, and he was on supervised probation. We
cannot say that Anderson’s twenty-year executed sentence is inappropriate in
light of the nature of the offense and his character and, thus, we affirm his
sentence.
[6] Affirmed.
Riley, J., and Bradford, J., concur.
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