Harold Evans, Jr. v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing Dec 31 2013, 8:35 am
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ROBERT J. HARDY GREGORY F. ZOELLER
Squiller & Hardy Attorney General of Indiana
Auburn, Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
HAROLD EVANS, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 17A04-1307-CR-338
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DEKALB SUPERIOR COURT
The Honorable Monte L. Brown, Judge
Cause No. 17D02-1211-FB-55
December 31, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Harold Evans, Jr., appeals the seven-year sentence imposed by the trial court
following his guilty plea to class C felony possession of methamphetamine. The sole issue
presented for our review is whether Evans’s sentence is inappropriate in light of the nature of
the offense and his character. Finding that Evans has not met his burden to demonstrate that
his sentence is inappropriate, we affirm.
Facts and Procedural History
On November 11, 2012, police discovered Evans exiting a residence in possession of
less than three grams of methamphetamine within one thousand feet of Willow Street Park in
Butler. The State charged Evans with one count of class B felony possession of
methamphetamine and one count of class B misdemeanor visiting a common nuisance. Evans
subsequently pled guilty to an amended charge of class C felony possession of
methamphetamine in exchange for dismissal of the class B misdemeanor charge as well as
four additional criminal charges in pending matters. Pursuant to the plea agreement,
sentencing was left to the discretion of the trial court. Following a hearing, the trial court
imposed a seven-year sentence. This appeal followed.
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Discussion and Decision
Evans invites this Court to reduce his sentence.1 Pursuant to Indiana Appellate Rule
7(B), 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.” The defendant bears the burden to persuade this
Court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080
(Ind. 2006). “[W]hether we regard a sentence as appropriate at the end of the day turns on
our sense of culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895
N.E.2d 1219, 1224 (Ind. 2008).
The current sentencing range for a class C felony is between two and eight years, with
the advisory sentence being four years. Ind. Code § 35-50-2-6. Here, the trial court imposed
a sentence above the advisory but below the maximum. Upon appellate review of a sentence,
the “nature of the offense” inquiry compares the defendant’s actions with the required
showing to sustain a conviction under the charged offense. Anderson v. State, 989 N.E.2d
823, 827 (Ind. Ct. App. 2013), trans. denied. We agree with Evans that his possession of
1
Although Evans frames the central issue as whether his seven-year sentence is inappropriate pursuant
to Indiana Appellate Rule 7(B), interspersed within his argument appears to be a claim that the trial court
abused its discretion during sentencing. We instruct counsel that an inappropriate sentence analysis does not
involve an argument that the trial court abused its discretion. See King v. State, 894 N.E.2d 265, 267 (Ind. Ct.
App. 2008). While we will address Evans’s claim pursuant to Rule 7(B) as framed, to the extent that Evans
claims that the trial court abused its discretion in weighing aggravating and mitigating circumstances by failing
to give sufficient weight to his guilty plea, this argument is not reviewable on appeal. See Anglemyer v. State,
868 N.E.2d 482, 491 (Ind. 2007) (explaining that relative weight assigned to aggravators and mitigators is not
subject to appellate review), clarified on reh’g, 875 N.E.2d 218.
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methamphetamine in this case does not appear to be particularly egregious when compared to
the actions required to sustain a conviction. Nevertheless, in light of our succeeding
discussion of his poor character, Evans fails to persuade us that the seven-year sentence
imposed by the trial court is inappropriate.
When considering the character of the offender, the defendant’s criminal history is a
relevant factor. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013). The trial court
noted Evans’s extensive thirty-nine-year criminal history that began with a juvenile
delinquency adjudication in 1974. Evans’s adult criminal history consists of three felony
convictions, numerous misdemeanors, and the dismissal of countless additional charges as
parts of various plea agreements. Despite being given the grace of probation on several
occasions, the record reveals that Evans has violated the terms of probation time and time
again. Similarly, although he has repeatedly received substantial benefit from all of his guilty
pleas, Evans has failed to rehabilitate himself.
Additionally, Evans has a long history of substance abuse and some mental health
issues. He has failed to properly address these problems despite being offered counseling to
do so. Further, the record indicates that Evans has not had gainful employment in the last
twelve years, and he admits that most of his current friends have, at one time or another, been
in trouble with the law. According to a risk assessment evaluation, Evans is in the high risk
category to reoffend. Under the circumstances, Evans’s character does not support a
sentence revision.
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Evans has not met his burden to demonstrate that his seven-year sentence is
inappropriate in light of the nature of the offense and his character. Therefore, we decline
the invitation to revise his sentence. The sentence imposed by the trial court is affirmed.
Affirmed.
BAKER, J., and NAJAM, J., concur.
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