Michael W. Pine, Jr. v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before FILED
Jun 29 2012, 9:28 am
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establishing the defense of res judicata,
collateral estoppel, or the law of the CLERK
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
WILLIAM S. FRANKEL, IV GREGORY F. ZOELLER
Wilkinson, Goeller, Modesitt, Attorney General of Indiana
Wilkinson & Drummy, LLP
Terre Haute, Indiana RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL W. PINE, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 84A01-1111-CR-588
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable David R. Bolk, Judge
Cause No. 84D03-1007-FA-2341
June 29, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Michael Pine appeals his sentence for dealing in methamphetamine as a class B
felony and three counts of neglect of a dependent as class C felonies. Pine raises one
issue which we revise and restate as whether his sentence is inappropriate in light of the
nature of the offense and the character of the offender. We affirm.
The relevant facts follow. On or about June 10, 2010, Pine manufactured
methamphetamine in his home in Vigo County, and the methamphetamine lab exploded
in the home and caused a fire and severe injuries to Pine, who was in a coma for six
weeks and suffered burns over forty percent of his body. Pine also endangered the lives
of his three minor dependents by having them in a location in which methamphetamine
was being manufactured, although his children were not harmed in the explosion or fire.
The State charged Pine with Count I, dealing in methamphetamine as a class A felony, as
well as Counts II-IV, neglect of a dependent as class C felonies. Pine and the State
subsequently entered into a plea agreement whereby Pine would plead guilty to the
lesser-included offense of dealing in methamphetamine as a class B felony, as well as to
the three counts of neglect of a dependent. Pursuant to the agreement, sentencing would
be left to the trial court’s discretion but the sentences would be ordered to run
concurrently.
On October 17, 2011, the court held a change of plea hearing in which the court
accepted the plea agreement and Pine pled guilty pursuant thereto. The court proceeded
to sentencing and identified as aggravators that the victims were less than twelve years of
age and that the nature and circumstances of Pine’s acts were “by far the most egregious
meth lab case I have had in . . . the nine (9) years.” The court noted that Pine
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“endangered not only himself, as he has the scars to, to prove that, but he clearly
endangered everyone in that house, including his wife and the three (3) children, one (1)
of whom was eleven (11) months of age . . . .” Transcript at 53. The court then
determined as mitigators Pine’s minimal criminal history, the hardship to his family, the
support he enjoyed from family and friends, and that he suffered burns on forty percent of
his body. The court sentenced Pine to ten years on Count I, with six years executed and
four years suspended to probation, and six years each on Counts II-IV to be served
concurrently; thus, Pine received an aggregate sentence of ten years with four years
suspended to probation.
The issue is whether Pine’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). Pine argues that he sustained serious injuries and “will forever
be reminded of his crime and will pay the price for it day-in and day-out as he deals with
nerve damage and the pain of his burns and the scars that remain.” Appellant’s Brief at
5. Pine argues that it is “obvious” that he “does not want to waste his second chance at
life and he recognizes the responsibility he has to care for his family,” and he notes that
he has been living a sober lifestyle since his arrest, that he loves his children and worked
to be reunited after they were taken by Child Protective Services, and that, as a resident at
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the Freebirds Solution Center, he has been a leader for others battling addiction and
“became a peer leader to other residents of the program and was placed in the honors
dorm.” Id. at 5-6. The State argues that Pine’s “sentence is more than appropriate,”
noting that “[i]t is well known that [manufacturing methamphetamine] is a dangerous
enterprise involving volatile chemicals and the very real possibility of explosion and fire”
and that “[i]ndifferent to their safety, [Pine] callously exposed his family to this
dangerous illegal activity . . . .” Appellee’s Brief at 6. The State also argues that Pine
“manufactured methamphetamine, not for his personal use, but for money he could make
selling it.” Id.
Our review of the nature of the offense reveals that Pine manufactured
methamphetamine in his home in which he lived with his wife and three children. In
June 2010, Pine’s house caught fire and Pine sustained bodily injuries as a result of an
explosion from his methamphetamine manufacturing activities. Pine admitted at
sentencing that he was selling methamphetamine, noting that his manufacturing activities
were the result of “stupidity” and was driven by “[t]he money.” Transcript at 31.
Our review of the character of the offender reveals that in 1999, Pine pled guilty to
resisting law enforcement as a class A misdemeanor after it was reduced from a class D
felony pursuant to a plea agreement. In 2002, Pine pled guilty to driving while
suspended as a class A misdemeanor and disregarding signal as an infraction. Pine was
successful in reuniting his family after his children were initially removed by the
Department of Child Services by completing the Department’s program which included
random drug screens, parenting classes, substance abuse classes, and counseling.
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Pine was originally charged with dealing in methamphetamine as a class A felony
and three class C felonies. Pine entered into a plea agreement in which he pled guilty to
the lesser-included offense of dealing in methamphetamine as a class B felony and the
three counts of neglect of a dependent as class C felonies. As part of the plea agreement
the State agreed that Pine’s sentences would be ordered to be served concurrently. At
sentencing, Pine was sentenced in accordance with the plea agreement to a total of six
years executed with an additional four years of probation. After due consideration, we
cannot say that Pine’s sentence is inappropriate in light of the nature of the offenses and
the character of the offender.
For the foregoing reasons, we affirm Pine’s sentences for dealing in
methamphetamine as a class B felony and three counts of neglect of a dependent as class
C felonies.
Affirmed.
BAKER, J., and KIRSCH, J., concur.
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