Danny D. Pigram v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Nov 29 2017, 10:28 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Derick W. Steele Curtis T. Hill, Jr.
Deputy Public Defender Attorney General of Indiana
Kokomo, Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Danny D. Pigram, November 29, 2017
Appellant-Defendant, Court of Appeals Case No.
34A02-1706-CR-1454
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable William C.
Appellee-Plaintiff. Menges, Jr., Judge
Trial Court Cause No.
34D01-1609-F3-1018
Brown, Judge.
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[1] Danny D. Pigram appeals his sentence for dealing in a narcotic drug as a level 4
felony. Pigram raises two issues which we revise and restate as:
I. Whether his sentence is inappropriate in light of the nature of
the offense and the character of the offender; and
II. Whether the trial court erred in imposing conditions of
probation.
We affirm.
Facts and Procedural History
[2] At some point, a confidential informant made phone contact with Pigram and
inquired about purchasing $200 worth of heroin. Pigram advised the informant
that they could meet at Pigram’s residence in Kokomo, Indiana. On August 1,
2016, he knowingly or intentionally delivered heroin with a weight of at least
one gram but less than five grams to a confidential informant in exchange for
$200.
[3] On September 30, 2016, the State charged Pigram with two counts of dealing in
a narcotic drug as level 4 felonies, one count of dealing in a narcotic drug as a
level 3 felony, and two counts of dealing in cocaine as level 4 felonies. On
April 28, 2017, Pigram pled guilty to one count of dealing in a narcotic drug as
a level 4 felony, the State agreed to dismiss the remaining charges, and the court
accepted Pigram’s guilty plea.1
1
The court asked if the State had made any promises in exchange for that plea, and the prosecutor stated:
“We (inaudible) right now. However, I would be willing to (inaudible).” Transcript Volume II at 19. The
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[4] On June 6, 2017, the court held a sentencing hearing. Pigram indicated that he
has struggled with cognitive problems during his lifetime which caused mental
illness in part as the result of an accident, and that he suffered a traumatic brain
injury in 1992 when he was hit by a car. He indicated that he did not think he
had a criminal attitude or had some sort of license to be able to violate the
criminal law. He stated that he was using heroin and substances at the time of
the offense because of his mental illness and his physical problem and that he is
in pain all the time. He also indicated that he had altercations or incidents in
jail resulting in punishment. Pigram’s counsel asked him, “And is that
something that you seem to have much control over or not?” Transcript
Volume II at 29. Pigram answered, “No, I don’t.” Id. He also testified that he
tried to better himself in jail and completed the Mothers Against
Methamphetamine Power Over Addiction Program. The probation officer
completing the presentence investigation report (“PSI”) recommended a
sentence of twelve years with two years suspended.
[5] The court stated Pigram’s “plea of guilty is a mitigating factor, but, in exchange
for the plea of guilty, four very serious charges were dismissed, all being Level 3
or 4 felonies. So I think that mitigating factor is deserving of only minimal
weight.” Id. at 37. It found his health and mental health issues as mitigators.
The court observed that the PSI listed numerous instances of incidents at the
court later asked Pigram: “Have you or anyone else received any promises, besides the State’s offer to dismiss
Counts II through V, or been given anything of value to get you to enter the plea of guilty you’re offering
today?” Id. at 21. Pigram answered: “No, sir.” Id.
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jail involving sanctions and stated “so obviously his behavior while incarcerated
pending trial was inappropriate.” Id. It found Pigram’s criminal history to be a
significant aggravating factor and that the aggravating factors substantially
outweighed the mitigating factors.
[6] The court sentenced Pigram to the Department of Correction for twelve years
with ten years executed and two years suspended to supervised probation. The
sentencing order provides in part: “As specific conditions of probation,
[Pigram] is ordered to follow any and all recommendations made by the
Probation Department including, but not limited to, treatment and education.”
Appellant’s Appendix Volume II at 61.
Discussion
I.
[7] The first issue is whether Pigram’s sentence is inappropriate in light of the
nature of the offense and his character. Ind. Appellate Rule 7(B) provides that
we “may 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] Pigram argues that, “while drug use in the community is a major issue in
modern society, there was not a victim in the traditional sense to the crime
charged.” Appellant’s Brief at 7. With respect to the character of the offender,
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Pigram acknowledges that his criminal history is “not ideal,” but asserts that
the broader review of his character reveals a unique offender in terms of his
mental and physical health. Id. The State maintains that Pigram’s sentence is
not inappropriate.
[9] Our review of the nature of the offense reveals that Pigram knowingly or
intentionally delivered heroin to a confidential informant in exchange for $200,
with the drug having a weight of at least one gram but less than five grams.
[10] Our review of the character of the offender reveals that Pigram, who was born
on September 25, 1972, pled guilty to one count of dealing in a narcotic drug as
a level 4 felony and that the charges of dealing in a narcotic drug as a level 4
felony, dealing in a narcotic drug as a level 3 felony, and two counts of dealing
in cocaine as level 4 felonies were dismissed. The PSI indicates that Pigram
described his physical health as fair, that he was hit by a car in 1992 and
suffered a traumatic brain injury, that he experiences weakness in his left side,
and that he has back issues, headaches, asthma, borderline diabetes, high blood
pressure, heart issues, and missing fingers due to being robbed. He reported
suffering from mental health issues as a result of the traumatic brain injury and
received mental health services in Wisconsin and Illinois. He also reported
using marijuana, Ecstasy, cocaine, heroin, and Oxycontin.
[11] Pigram was charged with multiple offenses in Illinois for which the PSI lists the
disposition as unknown. Specifically, he was charged with simple battery in
1991; criminal trespass to State SUP Land, assault, and aggravated assault in
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1992; disorderly conduct in 1993; assault and aggravated battery with great
bodily harm in 1994; and battery and two counts of criminal trespass to vehicles
in 1995.
[12] He has multiple convictions in Wisconsin including disorderly conduct as a
class B misdemeanor in 1995; Forgery-Uttering as a class C felony, criminal
damage to property as a misdemeanor, and disorderly conduct as a class B
misdemeanor in 1997; two counts of battery as misdemeanors in 1998; resisting
or obstructing an officer, receiving stolen property as a class A misdemeanor,
and two counts of retail theft as class A misdemeanors in 2002; possession of
narcotic drugs as a felony, two counts of retail theft as class A misdemeanors,
escape as a felony, and Unlawful Phone Use-Threatens Harm as a class B
misdemeanor in 2004; retail theft as a class A misdemeanor, Forgery-Uttering
as a felony, three counts of theft as class A misdemeanors, criminal damage to
property as a class A misdemeanor, and bail jumping as a class A misdemeanor
in 2006; two counts of battery by prisoners as felonies in 2007; possession of
cocaine as a misdemeanor in 2010; and resisting or obstructing officer as a class
A misdemeanor, possession of a narcotic drug as a felony, and two counts of
disorderly conduct as class B misdemeanors in 2012. The PSI also reveals that
multiple charges in Wisconsin were dismissed. Most recently, Pigram was
charged with manufacturing/delivering heroin and possession of narcotic drugs
as felonies and possession of drug paraphernalia as a misdemeanor in 2016 in
Wisconsin, but these charges were dismissed.
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[13] In Indiana, under another cause number, Pigram was sentenced for possession
of paraphernalia as a class C misdemeanor in 2017. He was also sentenced for
two counts of conversion as class A misdemeanors in 2017 under another cause
number, and a charge of conversion was dismissed under a separate cause
number. The PSI summarized the convictions as five adult felony and twenty-
six adult misdemeanor convictions. The PSI states that Pigram’s overall risk
assessment score using the Indiana Risk Assessment System places him in the
high risk to reoffend category.
[14] After due consideration, we conclude that Pigram has not sustained his burden
of establishing that his sentence of twelve years with two years suspended is
inappropriate in light of the nature of the offense and his character.
II.
[15] The next issue is whether the trial court erred in imposing conditions of
probation. Pigram argues that the probation condition that he follow any and
all recommendations made by the probation department is unconstitutional
because it does not notify him what behaviors are prohibited and impermissibly
permits the probation department to administer the conditions of probation.
The State asserts that this issue is not ripe as Pigram has not yet been released
to probation and his probation has not been revoked. We agree.
[16] The record does not reveal that there has been any petition or proceeding to
revoke Pigram’s probation. Consequently, we conclude that this issue is not
ripe for review. See Madden v. State, 25 N.E.3d 791, 797-798 (Ind. Ct. App.
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2015) (“If Madden is . . . referring to any future finding by the Community
Corrections program that he violated his probation, this question is not yet ripe
for review as Madden has not yet been found to be in violation of any terms of
his probation.”), trans. denied; Kimbrough v. State, 911 N.E.2d 621, 638 (Ind. Ct.
App. 2009) (holding that a claim would become ripe for adjudication only if the
trial court rescinded the suspension of an order that the defendant pay a $5,000
fine and the defendant was imprisoned for failing to pay the fine); Gustman v.
State, 660 N.E.2d 353, 356 (Ind. Ct. App. 1996) (concluding that the
defendant’s argument that the trial court violated his constitutional rights by
ordering that he pay child support as a condition of probation immediately
upon his release from incarceration was not ripe for appellate review), reh’g
denied, trans. denied.
Conclusion
[17] For the foregoing reasons, we affirm Pigram’s sentence.
[18] Affirmed.
Baker, J., concurs.
Riley, J., concurs in result without opinion.
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