Robert A. Ellington, III v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Mar 22 2017, 9:41 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
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
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana Michael Gene Worden
Richard C. Webster
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert A. Ellington, III, March 22, 2017
Appellant-Defendant, Court of Appeals Case No.
84A01-1608-CR-1755
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable David R. Bolk,
Appellee-Plaintiff Judge
Trial Court Cause Nos.
84D03-1508-F5-17871
84D03-1012-FB-3972
Mathias, Judge.
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[1] Robert A. Ellington, III (“Ellington”), was on probation when he pleaded guilty
to a drug dealing felony. His probation was revoked, and the balance of his
previously suspended sentence was ordered executed in the Department of
Correction. Claiming this placement was inappropriate, Ellington appeals.
[2] We affirm.
Facts and Procedural Posture
[3] In 2012, Ellington pleaded guilty to Class B felony dealing cocaine and Class D
felony dealing marijuana (“the 2012 case”). The trial court sentenced Ellington
to a ten-year term, with time served executed and the balance suspended to
probation. On August 5, 2015, the State charged Ellington with four Level 6
felonies and one Class D misdemeanor for possessing and dealing marijuana,
and maintaining a common nuisance (“the 2015 case”). The next day, the State
asked for Ellington’s probation in the 2012 case to be revoked.
[4] The 2012 and 2015 cases were consolidated, and a plea agreement covering
both cases was negotiated. For the 2015 case, Ellington agreed to plead guilty to
one count of Level 51 felony dealing marijuana in exchange for dismissal of the
remaining charges. Ellington agreed to a four-year sentence, reserving the right
to argue its terms. For the 2012 case, Ellington agreed to admit violating the
1
The State’s charging instruments do not charge a Level 5 felony. However, the State’s amended Count IV,
the charge to which Ellington pleaded, Appellant’s App. p. 184, alleged that Ellington possessed more than
thirty grams of marijuana with the intent to deliver it, after a conviction for dealing cocaine. Id. p. 17. Level 6
felony possession with intent to deliver, Ind. Code. § 35-48-4-10(c)(2)(A), is elevated to a Level 5 felony with
“a prior conviction for a drug dealing offense,” id. § (d)(1)(A), as Ellington had in the 2012 case.
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terms of his probation and to execute the six-year balance of his previously
suspended sentence, again reserving the right to argue its terms. The sentences
would be served consecutively as required by statute. Ind. Code § 35-50-1-
2(e)(1).
[5] On June 28, 2016, the trial court accepted the plea agreement. At a sentencing
hearing on July 25, 2016, the trial court heard Ellington’s evidence and both
parties’ arguments on the terms of the six-year sentence in the 2012 case and the
four-year sentence in the 2015 case. A presentence investigation report was
prepared but does not appear in the record before us.2 The State sought
execution of the six-year term in the Department of Correction and suspension
of the consecutive four-year term to probation. Ellington agreed with the State’s
recommendation as to the suspension of the four-year term but sought
placement in community corrections for the six-year term.
[6] In support of community corrections placement, Ellington introduced an
evaluation of the Vigo County community corrections program finding him
appropriate for such placement and a receipt for payment of the program’s
initial fees. Ex. Vol., Def.’s Exs. A, p. 4, B, p. 13. Ellington also introduced
eight letters from family and friends, including a pastor and a detective of the
Indianapolis Metropolitan Police Department, all praising his character and his
earnest desire to better his circumstances. Id., Def.’s Ex. A., pp. 5-12. Finally,
2
Ellington’s appendix does, however, include the presentence investigation report from the 2012 case.
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Ellington’s grandmother, with whom he had lived before and hoped to continue
to live when placed in community corrections, testified that she would welcome
his placement with her and that Ellington needed some help managing his
prescribed antianxiety and antidepressant medications. Ellington’s father was
murdered when Ellington was young, and the presentence investigation report
disclosed what the trial court characterized as “mild cognitive issues.”
Sentencing Tr. p. 18.
[7] Treating the consolidated 2012 and 2015 cases as one de novo sentencing
question, the trial court made a detailed statement of the aggravating and
mitigating factors it found. In aggravation, the court weighed Ellington’s
criminal history of seven misdemeanors and two felonies; occasional
noncompliance with the courts, including a failure to appear and
“disrespectfu[l]” behavior toward his probation officer, id. p. 17; and his failure
to take advantage of previous opportunities he had been given to avoid
incarceration, including arrests while on bond and on probation. In mitigation,
the court weighed Ellington’s mental health, “significant difficult issues in his
youth,” id. p. 18, and the outpouring of support from those who knew him. The
court also considered Ellington’s acceptance of responsibility in pleading guilty
but gave this little weight, in view of the plea agreement’s terms.
[8] The trial court accepted the State’s recommendation as to the 2015 case and
suspended the four-year term to probation. As to the six-year balance of the
sentence in the 2012 case, the trial court committed Ellington to the
Department of Correction pending his completion of a “Purposeful
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Incarceration”3 program; “immediately upon successful completion of [the
program], . . . the balance of [Ellington’s] sentence would be suspended . . . to
probation.” Id. p. 19.
[9] Ellington now appeals his placement in the Department of Correction as
inappropriate in light of the nature of his offense and of his character. The State
responds in Dickensian fashion that Ellington “needs a more restrictive
environment so that he might reform his character.” Appellee’s Br. p. 10.
Discussion and Decision
[10] We have the power, granted by our constitution and implemented by the
Appellate Rules, to “revise a sentence . . . if, after due 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.” Ind. Appellate Rule
7(B) (implementing Ind. Const. Art. 7, § 6). However, “this is not the correct
standard to apply when reviewing a sentence imposed for a probation
violation.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Thus, the remedy
3
“Purposeful Incarceration” is a program instituted by the Department of Correction and our trial courts:
In 2009 the Indiana Department of Correction (IDOC) began a cooperative project with Indiana
Court Systems called Purposeful Incarceration (P.I.). The Department works in collaboration
with Judges who can sentence chemically addicted offenders and document that they will
“consider a sentence modification” should the offender successfully complete an IDOC
Therapeutic community. This supports the Department and Correction and the Judiciary to get
addicted offenders the treatment that they need and work collaboratively to support their
successful re-entry into society.
Purposeful Incarceration, Indiana Department of Correction, http://www.in.gov/idoc/2798.htm (last visited
March 2, 2017); see also Marley v. State, 17 N.E.2d 335, 338 (Ind. Ct. App. 2014) (discussing same), trans.
denied.
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Ellington seeks is not available to him. Jones v. State, 885 N.E.2d 1286, 1290
(Ind. 2008).
[11] Sentences or sanctions imposed for probation violations may be reviewed only
for abuse of the sentencing court’s discretion. Id. Ellington has not expressly or
impliedly challenged the sentencing court’s exercise of its discretion, and the
State argues that the issue is therefore waived. The State is correct. Jackson v.
State, 992 N.E.2d 926, 933 (Ind. Ct. App. 2013) (waiver of issue for failure to
present cogent argument), trans. denied. Even were we to review the court’s
exercise of its discretion, nothing in its careful weighing of aggravating and
mitigating factors, nor in its ultimate decision to commit Ellington to the
Department of Correction pending completion of a Purposeful Incarceration
program, would strike us as clearly against the logic and effect of the facts and
circumstances before the court. Berry v. State, 904 N.E.2d 365, 366 (Ind. Ct.
App. 2009) (standard of review for sentences following probation revocation;
analysis of Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007) does not apply).
Conclusion
[12] Appellate Rule 7(B) revision is not available to Ellington. Even if Ellington had
argued the trial court abused its discretion, he would not have prevailed.
Ellington’s sentence is therefore affirmed.
[13] Affirmed.
Baker, J., and Pyle, J, concur.
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