Nathaniel Baxter v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 24 2020, 6:28 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Paula M. Sauer Curtis T. Hill, Jr.
Danville, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nathaniel Baxter, April 24, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2195
v. Appeal from the Hendricks
Superior Court
State of Indiana, The Honorable Rhett M. Stuard,
Appellee-Plaintiff Judge
Trial Court Cause No.
32D02-1811-F2-23
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2195 | April 24, 2020 Page 1 of 10
[1] Nathaniel Baxter appeals his two convictions of Level 2 felony dealing in
methamphetamine. 1 Baxter argues:
1. the trial court may have rendered a different sentence but for
certain comments made by the State, and
2. his sentence is inappropriate in light of the nature of his
offense and his character.
We affirm.
Facts and Procedural History
[2] In October 2018, Anthony Fite, a detective with the Avon Police Department,
was working as an undercover agent. A confidential informant notified Fite of
Baxter and the police began investigating him. Fite began to text with Baxter.
On October 30, 2018, Baxter agreed to sell methamphetamine to Fite. The
same day, Baxter and Fite met at the Applebee’s in Avon, Indiana. Baxter sold
13.83 grams of methamphetamine to Fite for $250.00. Fite used marked bills to
complete the sale.
[3] On November 6, 2018, Baxter and Fite again communicated by text message.
Fite asked to purchase pills from Baxter. Baxter informed Fite he did not have
any pills but could sell him 10 grams of methamphetamine. On November 8,
1
Ind. Code § 35-48-4-1.1(a)(1) (2017).
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2018, Baxter sold Fite 10.07 grams of methamphetamine for $150.00. Fite
again used marked bills to complete the sale. Following the sale, officers pulled
over Baxter’s car, arrested him, and searched his car. Police found three
cellphones and approximately $1,000.00, including the money used by Fite to
purchase the methamphetamine, in Baxter’s car.
[4] The State charged Baxter with two counts of Level 2 felony dealing in
methamphetamine. The State also alleged Baxter was a habitual offender. 2
The trial court held a bifurcated jury trial – the first half concerned the two
counts of dealing, and the second half concerned the habitual offender
allegation. The jury returned a guilty verdict on both counts of dealing and also
determined Baxter was an habitual offender. The trial court sentenced Baxter
to twenty years in prison for each conviction of Level 2 felony dealing in
methamphetamine, to be served concurrently. The trial court enhanced
Baxter’s sentence for the first count by eight years based on his adjudication as
an habitual offender, for an aggregate sentence of twenty-eight years.
Discussion and Decision
1. Sentencing Allegations
[5] Baxter argues the trial court may have sentenced Baxter differently, had the
State: (1) not suggested his sentences are non-suspendible, (2) not suggested
2
Ind. Code § 35-50-2-8 (2017).
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consecutive sentences were authorized, and (3) not argued both counts be
enhanced by the habitual offender finding. Sentencing decisions rest within the
sound discretion of the trial court, and we review such decisions only for an
abuse of discretion. Morrell v. State, 118 N.E.3d 793, 796 (Ind. Ct. App. 2019),
clarified on reh’g on other grounds, 121 N.E.3d 577 (Ind. Ct. App. 2019), trans.
denied. “An abuse of discretion occurs if the decision is clearly against the logic
and effect of the facts and circumstances.” Allen v. State, 875 N.E.2d 783, 788
(Ind. Ct. App. 2007). A trial court may abuse its discretion in imposing a
sentence by failing to enter a sentencing statement, identifying aggravating and
mitigating factors the record does not support, omitting reasons clearly
supported in the record and advanced for consideration, or stating reasons for
sentence that are improper as a matter of law. Anglemyer v. State, 868 N.E.2d
482, 494 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007).
[6] First, Baxter argues the State incorrectly suggested during a pretrial conference
and at the sentencing hearing that Baxter’s sentences were non-suspendible.
Pursuant to Indiana Code section 35-50-2-2.2(a), “the court may suspend any
part of a sentence for a felony” unless suspension is prohibited by other portions
of that same statutory section. Baxter was convicted herein of Level 2 felony
dealing in methamphetamine under Indiana Code section 35-48-4-1.1, making
relevant the exception in subsection 2.2(c), which provides that if:
(1) a person has a prior unrelated felony conviction in any
jurisdiction for dealing in a controlled substance that is not
marijuana, hashish, hash oil, salvia divinorum, or a synthetic
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drug, including an attempt or conspiracy to commit the offense;
and
(2) the person is convicted of a Level 2 felony under Indiana
Code § 35-48-4-1.1 or Ind. Code § 35-48-4-1.2;
the court may suspend only that part of a sentence that is in
excess of the minimum sentence for the Level 2 felony.
Ind. Code § 35-50-2-2.2(c).
[7] Baxter argues the record does not support the State’s suggestion that his
sentences were non-suspendible under that subsection, because the Pre-
Sentence Investigation report did not specifically state whether his prior dealing
conviction was a felony or what controlled substance he was convicted of
dealing. However, Baxter did not object to the State’s suggestion at the
sentencing hearing or direct the trial court to this statute. Thus, the argument
was waived, and Baxter cannot raise it on appeal. See Durden v. State, 99 N.E.3d
645, 652 (Ind. 2018) (“A party’s failure to object to an alleged error at trial
results in waiver.”).
[8] Waiver notwithstanding, Baxter contends that the trial court relied on the
State’s erroneous statement. However, when discussing the factors it was
relying on during sentencing, the trial court made no mention of whether
Baxter’s sentences were non-suspendible. Baxter has not demonstrated he was
prejudiced by the State’s argument. See Meyer v. Meyer, 560 N.E.2d 39, 44 (Ind.
1990) (trial court judgment was proper when it was supported by the record),
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distinguished on other grounds by Moell v. Moell, 84 N.E.3d 741 (Ind. Ct. App.
2017).
[9] Second, Baxter argues the State incorrectly suggested his sentences could be
served consecutively. Baxter admits “[t]he State did not request consecutive
sentences.” (Appellant’s Br. at 22.) However, Baxter explains the State
“suggested they were authorized by saying, ‘I’m not going to ask you to run
them consecutively.’” (Id.) (quoting Tr. Vol. III at 8). The trial court sentenced
Baxter to serve his sentences concurrently. Baxter did not raise this issue during
the sentencing hearing, therefore the issue is waived. See Durden, 99 N.E.3d at
652 (“A party’s failure to object to an alleged error at trial results in waiver.”).
[10] Both Baxter and the State requested his sentences be served concurrently, and
the trial court ultimately sentenced Baxter to serve his sentences concurrently.
Baxter does not suggest any harm came from the prosecutor’s initial statement,
nor is it clear any harm was suffered as Baxter received the concurrent
sentences the he requested. We accordingly cannot find reversible error on this
basis. See Ind. App. R. 66(A) (no appellate relief when alleged error is
harmless).
[11] Third, Baxter argues the State incorrectly suggested both of his sentences could
be enhanced due to the finding of Baxter being an habitual offender when the
statute allows only one conviction to be enhanced. Baxter is correct about the
law. “The court shall attach the habitual offender enhancement to the felony
conviction with the highest sentence imposed and specify which felony count is
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being enhanced.” Ind. Code § 35-50-2-8(j). However, Baxter did not object to
the State’s suggestion to the trial court, and thus it is waived. See Durden, 99
N.E.3d at 652 (“A party’s failure to object to an alleged error at trial results in
waiver.”).
[12] Moreover, Baxter does not indicate, nor does the record show, that the State
requested both sentences be enhanced. Additionally, the trial court only
attached the habitual offender enhancement to one of Baxter’s convictions.
Therefore, Baxter has not demonstrated the trial court erred on this basis. See
Moyer v. State, 83 N.E.3d 136, 144 (Ind. Ct. App. 2017) (no trial court error
when habitual offender enhancement attached to just one conviction), trans.
denied.
[13] In summary, Baxter has not demonstrated the trial court erred when it
sentenced him to twenty-eight years in prison. Rather, Baxter suggests “the
trial court may have imposed a less harsh sentence had it not been misled by the
State’s sentencing claims.” (Appellant’s Br. at 25) (emphasis added). However,
“a sheerly speculative argument provides no reason for us to order a new
sentencing hearing.” May v. State, 578 N.E.2d 716, 725 (Ind. Ct. App. 1991),
distinguished on other grounds by Voss v. State, 856 N.E.2d 1211 (Ind. 2006).
“[T[here is a strong presumption on appeal that a trial court has acted correctly
and has properly followed the applicable law.” Moran v. State, 622 N.E.2d 157,
159 (Ind. 1993). Because Baxter has not demonstrated error, we follow that
presumption and affirm his twenty-eight-year sentence.
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2. Appropriate Sentence
[14] Baxter argues his sentence is inappropriate in light of his character and the
nature of his offense. Our standard of review on this issue is well settled.
We “may revise a sentence authorized by statute 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).
“Although appellate review of sentences must give due
consideration to the trial court’s sentence because of the special
expertise of the trial bench in making sentencing decisions,
Appellate Rule 7(B) is an authorization to revise sentences when
certain broad conditions are satisfied.” Shouse v. State, 849
N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and
quotation marks omitted). “[W]hether we regard a sentence as
appropriate 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 factors that come to light in a
given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
In addition to the “due consideration” we are required to give to
the trial court’s sentencing decision, “we understand and
recognize the unique perspective a trial court brings to its
sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873
(Ind. Ct. App. 2007).
Couch v. State, 977 N.E.2d 1013, 1017 (Ind. Ct. App. 2012), reh’g denied, trans.
denied. The appellant bears the burden of demonstrating his sentence is
inappropriate. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011),
trans. denied. When considering the nature of the offense, the advisory sentence
is the starting point for determining the appropriateness of a sentence.
Anglemeyer, 868 N.E.2d at 494.
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[15] The sentencing range for a Level 2 felony is a fixed term between ten and thirty
years with the advisory sentence being seventeen and one-half years. Ind. Code
§ 35-50-2-4.5 (2014). Baxter was sentenced to twenty years for each Level 2
felony. If a person has been convicted of a Level 2 felony and is a habitual
offender, the court shall sentence that person to an additional fixed term
between six and twenty years. Ind. Code § 35-50-2-8(i)(1). The trial court
ordered Baxter’s sentence for count two to be served concurrent to his sentence
for count one and enhanced his sentence for count one by eight years based on
his adjudication as an habitual offender, for an aggregate sentence of twenty-
eight years.
[16] Baxter twice sold methamphetamine to an undercover agent. Baxter
communicated and set up his deals through text messaging. When he was
apprehended, Baxter possessed a large sum of cash and multiple cell phones.
While the nature of his offense is not particularly egregious, our review requires
us to also examine Baxter’s character.
[17] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct.
App. 2013). Baxter has a lengthy criminal history including convictions of
criminal trespass, resisting law enforcement, possession of a controlled
substance, possession of marijuana, battery, and possession of a controlled
substance with intent to distribute, and including multiple convictions of
possession of cocaine, operating a vehicle without ever receiving a license, and
driving while suspended. Baxter also has juvenile adjudications for possession
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of marijuana, possession of cocaine, and fleeing from law enforcement. Baxter
has had his probation and work release revoked for violations six times. (App.
Vol. II at 35-42.) Baxter argues his difficult childhood should entitle him to a
more lenient sentence. In light of Baxter’s significant criminal history, his
difficult childhood is entitled to little, if any, mitigating weight. See Bethea v.
State, 983 N.E.2d 1134, 1141 (Ind. 2013) (holding sentence above advisory not
inappropriate even though defendant claimed difficult childhood).
[18] Given Baxter’s poor character as demonstrated by his many adult convictions
and juvenile adjudications, we cannot say Baxter’s sentence is inappropriate.
See Clark v. State, 26 N.E.3d 615, 619 (Ind. Ct. App. 2014) (defendant’s
extensive criminal history showed bad character and allowed for aggravated
sentence), trans. denied.
Conclusion
[19] Baxter failed to demonstrate that the trial court relied on the prosecutor’s
statements when it sentenced him. Additionally, Baxter’s poor character
allowed for an aggravated sentence and thus his sentence was not
inappropriate. Accordingly, we affirm.
[20] Affirmed.
Crone, J., and Pyle, J., concur.
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