Alvin D. Allen 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
Jul 31 2017, 8:19 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Alvin D. Allen, July 31, 2017
Appellant-Defendant, Court of Appeals Case No.
84A04-1702-CR-406
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable John T. Roach,
Appellee-Plaintiff Judge
Trial Court Cause Nos.
84D01-1512-F2-3063
84D01-1601-F4-218
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 84A04-1702-CR-406 | July 31, 2017 Page 1 of 5
[1] Alvin Allen appeals the sentence imposed by the trial court after Allen pleaded
guilty to Level 2 felony dealing in methamphetamine, Level 4 felony dealing in
methamphetamine, and Level 6 felony theft of a firearm.1 Allen contends that
the sentence is inappropriate in light of the nature of the offenses and his
character. Finding that the sentence is not inappropriate, we affirm.
[2] On December 2, 2015, a confidential informant working with law enforcement
in Vigo County conducted a controlled buy of methamphetamine from Allen at
his home. On December 10, 2015, police executed a search warrant at Allen’s
home, during which they found methamphetamine, marijuana, alprazolam, a
glass smoking pipe, and several firearms. Allen’s toddler son was home at the
time.
[3] On December 14, 2015, the State charged Allen under cause number 84D01-
1512-F2-3063 (F2-3063)2 with the following: Level 2 felony dealing in
methamphetamine, Level 3 felony possession of methamphetamine, Level 4
felony dealing in a controlled substance, Level 5 felony neglect of a dependent,
two counts of Level 6 felony maintaining a common nuisance, two counts of
Level 6 felony theft of a firearm, Level 6 felony dealing in marijuana, Class B
misdemeanor possession of marijuana, and Class A misdemeanor possession of
1
In Allen’s plea agreement, he agreed to waive the right to appeal the sentence imposed in this matter. At
the sentencing hearing, however, the trial court advised Allen that he had a right to appeal his sentence
because there was no agreement as to the sentence. Tr. p. 13. Neither Allen’s counsel nor the State objected
to the trial court’s statement. The State is not challenging Allen’s right to appeal his sentence.
2
These offenses stem from the December 10, 2015, search of Allen’s residence.
Court of Appeals of Indiana | Memorandum Decision 84A04-1702-CR-406 | July 31, 2017 Page 2 of 5
paraphernalia. The State filed a notice of intent to seek two firearm
enhancements for the charge of Level 4 felony dealing in a controlled
substance.
[4] On January 27, 2016, the State charged Allen under cause number 84D01-1601-
F4-218 (F4-218)3 with the following: Level 4 felony dealing in
methamphetamine, Level 6 felony possession of methamphetamine, and Level
6 felony maintaining a common nuisance.
[5] On January 25, 2017, Allen pleaded guilty to Level 2 felony dealing in
methamphetamine, Level 3 felony possession of methamphetamine, and Level
6 felony theft of a firearm under cause F2-3063, and to Level 4 felony dealing in
methamphetamine under cause F4-218. Under the plea agreement, the State
agreed to dismiss all remaining charges. The plea agreement provided that all
sentences would run concurrently, and it capped the aggregate sentence at
twenty years. At the January 25, 2017, sentencing hearing, the trial court
merged Allen’s Level 3 felony possession of methamphetamine conviction into
the Level 2 felony dealing in methamphetamine to prevent double jeopardy
concerns. The trial court imposed a twenty-year sentence for his Level 2
conviction, an eight-year sentence for his Level 4 conviction, and a two-year
sentence for his Level 6 conviction, all to run concurrently, for an aggregate
sentence of twenty years.
3
These offenses stem from the December 2, 2015, controlled buy.
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[6] Allen’s sole argument on appeal is that the sentence is inappropriate in light of
the nature of the offenses and his character. Indiana Appellate Rule 7(B)
provides that this Court may revise a sentence if it is inappropriate in light of
the nature of the offense and the character of the offender. We must “conduct
[this] review with substantial deference and give ‘due consideration’ to the trial
court's decision—since the ‘principal role of [our] review is to attempt to leaven
the outliers,’ and not to achieve a perceived ‘correct’ sentence . . . . ” Knapp v.
State, 9 N.E.3d 1274, 1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d
1257, 1259 (Ind. 2013)) (internal citations omitted).
[7] Allen pleaded guilty to Level 2 felony dealing in methamphetamine, Level 4
felony dealing in methamphetamine, and Level 6 felony theft of a firearm. For
his Level 2 conviction, he faced a term of ten to thirty years, with an advisory
term of seventeen and one-half years imprisonment. Ind. Code § 35-50-2-4.5.
For his Level 4 conviction, he faced a term of two to twelve years
imprisonment, with an advisory term of six years imprisonment. I.C. § 35-50-2-
5.5. For his Level 6 conviction, he faced a term of six months to two and one-
half years, with an advisory term of one year imprisonment. I.C. § 35-50-2-7.
Allen received an aggregate executed twenty-year sentence.
[8] Initially, we note that Allen agreed to enter into a plea agreement that provided
that he could receive a maximum sentence of twenty years. The trial court
imposed a twenty-year sentence, as contemplated by the plea agreement, and
because Allen agreed to this sentence, he cannot now argue that it was
Court of Appeals of Indiana | Memorandum Decision 84A04-1702-CR-406 | July 31, 2017 Page 4 of 5
inappropriate. His agreement notwithstanding, we will still discuss his
argument.
[9] As for the nature of the offense, Allen possessed and intended to deal
methamphetamine. He committed theft of a firearm. While these offenses are
not the worst of the worst, Allen put his young child in harm’s way by
conducting his activities in the presence of and within close proximity to his
child.
[10] As for Allen’s character, he has a lengthy history of contact with the criminal
justice system. As a teenager, he was committed to the Indiana Boys’ School
four times. As an adult, he has had six felony convictions, including two
convictions for Class D felony possession of cocaine, Class D felony possession
of methamphetamine, Class D felony possession of marijuana, and Class C
felony possession of methamphetamine. In addition, he has had ten
misdemeanor convictions, including convictions for domestic battery,
possession of marijuana, and resisting law enforcement.
[11] Given the nature of the offenses and Allen’s character, including a lengthy
history of contact with the criminal justice system that has not deterred him
from continuing to commit crimes, we do not find the sentence imposed by the
trial court to be inappropriate.
[12] The judgment of the trial court is affirmed.
Barnes, J., and Crone, J., concur.
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