Keyshawn D. Sanders v. State of Indiana

FILED
Feb 24 2017, 9:13 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
P. Stephen Miller Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Keyshawn D. Sanders, February 24, 2017
Appellant-Defendant, Court of Appeals Case No.
02A04-1608-CR-1903
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D05-1602-F3-19
Najam, Judge.
Statement of the Case
[1] Keyshawn D. Sanders appeals his sentence after he pleaded guilty to dealing in
a narcotic drug, as a Level 3 felony, and possession of marijuana, as a Class B
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misdemeanor. He purports to raise one issue for our review but actually raises
the following two issues:
1. Whether the trial court abused its discretion in failing to
find his youth to be a mitigating factor.
2. Whether his sentence is inappropriate in light of the nature
of his offenses and his character.
[2] We hold that the trial court did not abuse its discretion in Sanders’ sentencing.
And, because Sanders has failed to present authority or analysis with respect to
whether his sentence is inappropriate in light of the nature of his offenses, we
hold that he has waived appellate review of the inappropriateness of his
sentence. However, his waiver notwithstanding, Sanders has failed to persuade
us that his sentence is inappropriate. Accordingly, we affirm.
Facts and Procedural History
[3] On February 25, 2016, the State charged Sanders with Level 3 felony dealing in
cocaine and Class B misdemeanor possession of marijuana. Sanders
subsequently pleaded guilty to both of those charges. Pursuant to his plea
agreement, the trial court ordered Sanders to enter into a drug court
participation agreement. That agreement included various requirements that
Sanders would have to meet during the term of the drug court program and
provided that, if Sanders completed those requirements successfully, the State
would dismiss the underlying charges against him. However, Sanders’
noncompliance with the conditions of the drug court program would result in a
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petition to terminate his participation and subject him to sentencing for the
underlying offenses.
[4] Within one month of entering the drug court program, Sanders was dismissed
from a transitional living house for failing to comply with its rules and
regulations. He also failed to attend another program that he had been
instructed to attend. As a result of those violations, the State filed a petition to
terminate his drug court participation, and Sanders admitted to the State’s
ensuing allegations that he had violated his participation agreement. As such,
the trial court revoked Sanders’ participation in the drug court program and set
the matter for sentencing on the underlying offenses.
[5] At the time of sentencing, Sanders was twenty years old. The presentence
investigation report informed the trial court that Sanders’ first encounter with
the criminal justice system occurred with a juvenile adjudication for possession
of marijuana, as a Class A misdemeanor if committed by an adult, in February
2012. The juvenile court placed Sanders on informal adjustment for six
months, and, after that time had elapsed, he was discharged from probation
unsuccessfully. During the pendency of that informal adjustment, the juvenile
court again adjudicated Sanders a delinquent for possession of marijuana, as a
Class A misdemeanor if committed by an adult, in July 2012. In April 2013,
the court found Sanders to be a delinquent for committing possession of
marijuana, which would have been a felony for an adult, and criminal
conversion, which would have been a Class A misdemeanor, and the court
placed him on probation. In July 2013, the court modified his placement from
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probation to electronic monitoring. In January 2014, the court again modified
his placement and sent Sanders to the Allen County Juvenile Center. In
September 2014, Sanders received his first adult convictions, which were two
counts of possession of marijuana, one as a Class B misdemeanor and one as a
Class A misdemeanor. The trial court placed Sanders on probation for a year
as a result of one of those convictions, and the court revoked his probation in
June 2015.
[6] In the instant case, the presentence investigation report also stated that, when
Sanders was asked, he “admitted to his case manager that he does not have a
substance abuse problem and that he [stated that] . . . he did [have a drug
problem] during his assessment so that he could get Drug Court. He report[ed]
that he was only giving partial effort on the program and report[ed] doing the
minimum in an effort to get by.” Appellant’s App. Vol. II at 52. In his
testimony at sentencing, Sanders denied trying to manipulate the trial court and
stated: “I do have a drug problem. I wouldn’t say I’m addicted to drugs. I
know I can go without using drugs and I took drug court to help me with the
little drug problem I do have.” Sent. Tr. at 10. The trial court sentenced
Sanders to the advisory sentence of nine years for his Level 3 felony conviction,
and it suspended three of those years to probation. The court ordered Sanders
to serve a concurrent six-month sentence for his misdemeanor conviction. This
appeal ensued.
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Discussion and Decision
Issue One: Abuse of Discretion in Sentencing
[7] Sanders asserts that the trial court abused its discretion when it failed to find his
youth to be a mitigating factor.
Sentencing decisions rest within the sound discretion of the trial
court and we review only for an abuse of discretion. Anglemyer v.
State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875
N.E.2d 218 (Ind. 2007). An abuse of discretion occurs if the
decision is clearly against the logic and effect of the facts and
circumstances before the court or the reasonable, probable, and
actual deductions drawn therefrom. Id. We review for an abuse
of discretion the court’s finding of aggravators and mitigators to
justify a sentence, but we cannot review the relative weight
assigned to those factors. Id. at 490-491. When reviewing the
aggravating and mitigating circumstances identified by the trial
court in its sentencing statement, we will remand only if “the
record does not support the reasons, or the sentencing statement
omits reasons that are clearly supported by the record, and
advanced for consideration, or the reasons given are improper as
a matter of law.” Id.
Baumholser v. State, 62 N.E.3d 411, 416 (Ind. Ct. App. 2016), not yet certified.
[8] As this court has noted previously, “youth is not automatically a significant
mitigating circumstance.” Smith v. State, 872 N.E.2d 169, 178 (Ind. Ct. App.
2007), trans. denied. Rather, whether a defendant’s youth is a significant
mitigating factor is within the trial court’s discretion. Id. Moreover, if the trial
court does not find youth to be a mitigator, it is under no obligation to explain
its reasoning. Id. Here, as in Smith, the trial court did not overlook the
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defendant’s youth but specifically acknowledged it and chose not to find it as a
mitigating circumstance. “‘This was the trial court’s call,’” id. (quoting
Anglemyer, 868 N.E.2d at 493), and Sanders points to no evidence that would
lead us to believe the trial court’s failure to find youth as a mitigating factor was
an abuse of the trial court’s discretion.1
Issue Two: Inappropriateness of Sentence
Waiver
[9] On appeal, Sanders asserts that his nine-year aggregate sentence is
inappropriate. Sanders states his issue on appeal as “[w]hether the advisory
sentence is inappropriate considering the nature of his offenses and his
character.” Appellant’s Br. at 4. However, he presents no authority or
argument on the nature of his offense. Instead, he focuses solely on the nature
of his character.
[10] Article 7, Sections 4 and 6 of the Indiana Constitution “authorize[] independent
appellate review and revision of a sentence imposed by the trial court.” Roush v.
State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration original). This
appellate authority is implemented through Indiana Appellate Rule 7(B). Id.
Revision of a sentence under Rule 7(B) requires the appellant to demonstrate
1
To the extent Sanders asserts that the trial court abused its discretion in the weight it gave to the
aggravating circumstance of his criminal history and the mitigating circumstances of his guilty plea and his
remorse for his crime, his assertion is not well taken. A sentencing court cannot abuse its discretion by failing
to properly weigh aggravating and mitigating factors. Anglemyer, 868 N.E.2d at 490.
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that his sentence is “inappropriate in light of the nature of the offense and the
character of the offender.” Ind. Appellate Rule 7(B) (emphasis added). That
language is clear: Rule 7(B) plainly requires, as this court has long
acknowledged, “the appellant to demonstrate that his sentence is inappropriate
in light of both the nature of the offenses and his character.” Williams v. State,
891 N.E.2d 621, 633 (Ind. Ct. App. 2008) (emphasis original to Williams ); see
also Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013), trans. denied; cf.
Baumholser, 62 N.E.3d at 418 (“We find nothing in Baumholser’s character,
beyond the current convictions, to be deplorable. However, to obtain relief,
Baumholser must demonstrate the sentence is inappropriate in light of both the
nature of the offense and his character.”) (emphasis in original). Because
Sanders has failed to present any authority or analysis on the issue of the nature
of his offenses, he has waived our review of the inappropriateness of his
sentence.
Waiver Notwithstanding
[11] Waiver notwithstanding, Sanders has failed to persuade us that his nine-year
sentence is inappropriate. As stated above, the trial court sentenced Sanders to
the advisory term of nine years for his Level 3 felony offense. The advisory
sentence is the starting point the legislature has selected as an appropriate
sentence for the crime committed. See Carter v. State, 31 N.E.3d 17, 32 (Ind. Ct.
App. 2015), trans. denied. We also 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
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142, 147 (Ind. Ct. App. 2006). However, “a defendant must persuade the
appellate court that his or her sentence has met th[e] inappropriateness standard
of review.” Roush, 875 N.E.2d at 812 (alteration original).
[12] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224
(Ind. 2008). The principal role of appellate review is to attempt to “leaven the
outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the
end of the day turns on “our sense of the culpability of the defendant, the
severity of the crime, the damage done to others, and myriad other facts that
come to light in a given case.” Id. at 1224. The question is not whether another
sentence is more appropriate, but rather whether the sentence imposed is
inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).
Deference to the trial court “prevail[s] unless overcome by compelling evidence
portraying in a positive light the nature of the offense (such as accompanied by
restraint, regard, and lack of brutality) and the defendant’s character (such as
substantial virtuous traits or persistent examples of good character).” Stephenson
v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[13] Here, aside from providing no evidence or argument concerning the nature of
his offense, Sanders has not shown that the sentence was inappropriate in light
of his character. “When considering the character of the offender, one relevant
fact is the defendant’s criminal history,” and “[t]he significance of criminal
history varies based on the gravity, nature, and number of prior offenses in
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relation to the current offense.” Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct.
App. 2015), trans. denied. Moreover, the trial court may consider not only the
defendant’s adult criminal history but also his juvenile delinquency record in
determining whether his criminal history is significant. E.g., Rutherford v. State,
866 N.E.2d 867, 874 (Ind. Ct. App. 2007).
[14] At sentencing, Sanders was twenty years old with true delinquency
adjudications for what would have been three Class A misdemeanors and one
felony if committed by an adult. The juvenile court placed him under its
supervision in two of those cases and discharged him unsuccessfully in one.
The court modified his placement to increasingly confining placements twice in
the other. As an adult, he had accrued two misdemeanor convictions, one
Class A and one Class B. He was placed on probation as a result of one of
those convictions, and the court later revoked that probation. Sanders’
significant juvenile and criminal history reflects poorly on his character.
[15] Moreover, Sanders’ attempted manipulation of the trial court and disregard for
the opportunity that the drug court afforded him also reflect poorly on his
character. See, e.g., Phelps v. State, 969 N.E.2d 1009, 1021 (Ind. Ct. App. 2012)
(stating that the defendant’s refusal to take advantage of rehabilitative efforts
offered to him reflected poorly on his character), trans. denied. When asked
about his lack of progress in drug court, Sanders admitted to a case manager
that he never took the requirements of the drug court agreement seriously and
that he had claimed to have a drug problem so that he could be offered the
opportunity of the drug court. And his lack of effort in that program is evident
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from the fact that he violated the drug court agreement within one month of
entering into it. While at sentencing he attempted to disclaim any attempt at
manipulation, the trial court was not required to give credit to his self-serving
justifications at the very moment when sentencing was imminent. Given
Sanders’ juvenile and adult criminal history and his refusal to take advantage of
the rehabilitative services offered by drug court, we cannot say his sentence is
inappropriate.2 As such, we affirm Sanders’ sentence.
[16] Affirmed.
Bailey, J., and May, J., concur.
2
Sanders also contends that the sentence imposed by the trial court was inappropriate because serving four
and a half to six years in the Department of Correction may foreclose his future opportunities and harm his
life situation, while a lesser sentence could allow him to “provide for his dependents” and “accept full
responsibility for his life and his actions.” Appellant’s Br. at 11. However, as noted above, the question
under Rule 7(B) is not whether another sentence is more appropriate but, rather, whether the sentence
imposed is inappropriate. King, 894 N.E.2d at 268.
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