CIOE v. STATE (2024)

MEMORANDUM DECISION

Case Summary

[1] Anthony D. Cioe appeals his conviction for level 2 felony dealing in methamphetamine and his admission to being a habitual offender. He raises the following issues for our review: (1) whether the trial court abused its discretion by admitting certain evidence in violation of his rights under the Fifth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution; (2) whether the State presented sufficient evidence to support his conviction for level 2 felony dealing in methamphetamine; and (3) whether his twenty-five-year aggregate sentence is inappropriate in light of the nature of the offense and his character. We affirm.

Facts and Procedural History

[2] In January 2023, Jill Phillips lived in a home in Cannelton. Her granddaughter, Bailey Sandage, lived with her. Sandage was Cioe's girlfriend. Mary Loder was Phillips's next-door neighbor. On January 7, Phillips found in her house a plastic baggie containing a white crystal-like substance that she believed was methamphetamine. Phillips went to Loder's house and asked Loder to call the police. Phillips placed the substance in a container and hid it until the police arrived.

[3] Cannelton Police Department Officer Clay James responded to Loder's call. When Officer James arrived, Phillips retrieved the container and gave it to him. Officer James did not have a kit to test the substance, so he called for backup from the Tell City Police Department (TCPD). When TCPD Officer Carlyle Andry responded to the call, he performed a field test and determined that the substance tested positive for methamphetamine.

[4] The officers learned that there were two individuals in Phillips’ home, and Phillips let the officers inside so that they could speak with them. The officers first encountered Sandage as she was walking into the master bedroom suite. Officer James took Sandage into the living room. Officer Andry looked inside the bedroom and saw Cioe wrapped in a blanket and sitting against the side of the bed. Officer Andry asked Cioe to identify himself, and he told the officer that his name was “Tony.” Tr. Vol. 2 at 32. Officer Andry knew that a warrant for Cioe's arrest had been issued in a separate case, and the officer was “talking to [Cioe]” because he “wanted to confirm” Cioe's identity “so that [he] could arrest [Cioe] for that warrant.” Id. at 35.

[5] Cioe began “shuffling” his blanket, and his hands were “preoccupied [at] his waistline.” Id. at 32, 94. Officer Andry asked him repeatedly to show his hands. Cioe then “threw something behind his back and [Officer Andry] heard a clank, which [sounded like] glass on some sort of hard object.” Id. at 32. Officer Andry placed Cioe in handcuffs for his own safety and then discovered that the objects that Cioe had thrown were a glass pipe used to smoke methamphetamine and a lighter. The officer told Cioe that he was arresting him “because you dumped that pipe behind you.” Id. at 41. Officer Andry asked Cioe if he had methamphetamine on his person, and Cioe answered in the affirmative.¹

[6] Officer Andry used the dispatch system to confirm Cioe's identity and the outstanding arrest warrant and then searched Cioe's person. The officer found in Cioe's right front pants pocket a Tupperware container wrapped with black electrical tape that contained a white crystal-like substance. The officer also found $14 on Cioe's person. Officer Andry Mirandized Cioe and transported him to the county detention center. The substance found on Cioe's person was later tested and found to contain methamphetamine. The net weight of the substance was determined to be 28.68 grams.

[7] On January 10, 2023, the State charged Cioe with level 2 felony dealing in methamphetamine and level 3 felony possession of methamphetamine, and the State alleged that he was a habitual offender. Cioe's two-day jury trial was held on September 25 and 26, after which he was found guilty as charged. Cioe admitted to being a habitual offender, and the parties agreed to a three-year sentence enhancement. It appears that the sentencing agreement between Cioe and the State was verbal and not written. The matter was addressed in open court, and the trial court stated, “It's my understanding [the] parties have come to an agreement regarding [the habitual offender sentence enhancement].” Id. at 186. Cioe's counsel answered, “We have, Your Honor.” Id.

[8] Cioe's sentencing hearing was held on October 24, 2023. Cioe asked the trial court to consider as mitigating circumstances that he pled guilty to being a habitual offender; the crime for which he was convicted was not a “violent crime”; he had a substance abuse problem and an “undiagnosed post-traumatic stress disorder”; his late wife was murdered in 1997; and his son died in 2015 at the age of twenty-one. Id. at 197. Cioe presented a statement of allocution, telling the court that he was “an addict” and asking the court to consider sentencing him to purposeful incarceration. Id. at 198.

[9] The trial court found that the “aggravating factors outweigh[ed] the mitigating factors” and noted specifically that

Mr. Cioe has a criminal history that dates back to 1988[, and] various parole and probation violations throughout his criminal history. I do not find him to be a candidate for community supervision․ Between prison, probation, jail[,] and community corrections, you've had since 1988 to get yourself together, yet you chose while on parole to come to Perry County, Indiana, to deal drugs. Not acceptable, sir. Not acceptable.

Id. at 199-200. The court vacated Cioe's level 3 felony possession of methamphetamine conviction. The court then sentenced Cioe to twenty-two years for the level 2 felony dealing in methamphetamine conviction and enhanced the sentence by three years for his habitual offender status, for an aggregate term of twenty-five years executed in the Indiana Department of Correction (DOC). This appeal ensued. Additional facts will be provided as necessary.

Discussion and Decision

Section 1 – Cioe has failed to establish that his rights under the Fifth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution were violated.

[10] Cioe first contends that he was “subjected to a custodial interrogation without the benefit of the Miranda warning” and thus his Fifth Amendment rights were violated. Appellant's Br. at 8. Therefore, according to Cioe, the trial court abused its discretion when it admitted the statements that he made during the interrogation.

[11] “The Fifth Amendment privilege against self-incrimination prohibits admitting statements given by a suspect during ‘custodial interrogation’ without a prior [Miranda] warning.” Ritchie v. State, 875 N.E.2d 706, 716 (Ind. 2007). “When a subject is in custody, Miranda requires that he be informed of the right to the presence and advice of counsel during custodial interrogation by the police, of the right to remain silent, and that any statement he makes may be used as evidence against him.” Collins v. State, 873 N.E.2d 149, 155 (Ind. Ct. App. 2007), trans. denied.

[12] Here, however, Cioe has not developed his Fifth Amendment argument or even disclosed the statement or statements that he challenges on appeal. Because he has failed to present a cogent argument, he has waived this issue for review. See Shane v. State, 716 N.E.2d 391, 398 n.3 (Ind. 1999) (holding that defendant waived argument on appeal by failing to develop cogent argument); see also generally Ind. Appellate Rule 46(A)(8)(a) (providing that an appellant's brief “must contain the contentions of the appellant on the issues presented, supported by cogent reasoning”).

[13] Waiver notwithstanding, we presume that Cioe challenges his affirmative response to Officer Andry when the officer asked him if he had any methamphetamine on his person. However, Cioe's statement was introduced at trial by his defense counsel, not the State, to advance the strategy that the drugs found on Cioe's person should be suppressed based on the fruit-of-the-poisonous-tree doctrine. Because Cioe introduced the evidence, he has invited the error that he now challenges on appeal. Thus, his Fifth Amendment argument fails. See Kingery v. State, 659 N.E.2d 490, 494 (Ind. 1995) (“A party may not invite error, then later argue that the error supports reversal, because error invited by the complaining party is not reversible error.”).

[14] Next, Cioe argues briefly that his rights under Article 1, Section 11 of the Indiana Constitution were violated because he “had a reasonable expectation to be free from a warrantless entry of his home.” Appellant's Br. at 8. However, his argument fails to address the three factors that we balance to determine the reasonableness of a search or seizure under our state constitution. See Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005) (in determining reasonableness of search or seizure we balance: (1) the degree of concern, suspicion, or knowledge that a violation has occurred; (2) the degree of intrusion the method of the seizure imposed on the citizen's ordinary activities; and (3) the extent of law enforcement needs). Failure to make a cogent argument pursuant to Article 1, Section 11 constitutes waiver of the issue on appeal. Polk v. State, 822 N.E.2d 239, 245 n.5 (Ind. Ct. App. 2005), trans. denied; Ind. Appellate Rule 46(A)(8). Accordingly, Cioe has waived this argument for review.

Section 2 – The State presented sufficient evidence to support Cioe's conviction.

[15] Cioe contends that the State presented insufficient evidence to support his conviction for dealing in methamphetamine. When reviewing sufficiency-of-the-evidence claims, we neither reweigh the evidence nor judge the credibility of witnesses. Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015). We will only consider the evidence supporting the judgment and any reasonable inferences that can be drawn from the evidence. Id. A conviction will be affirmed if there is substantial evidence of probative value to support each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Id.

[16] To convict Cioe of level 2 felony dealing in methamphetamine, the State was required to prove beyond a reasonable doubt that he knowingly or intentionally possessed methamphetamine, pure or adulterated, in an amount of at least ten grams, with intent to deliver the methamphetamine. Ind. Code § 35-48-4-1.1(a)(2). Cioe argues that the State failed to present sufficient evidence that he intended to deliver the 28.68 grams of methamphetamine found on his person.

[17] Indiana Code Section 35-48-4-1.1(b) provides that “[a] person may be convicted of an offense under subsection (a)(2) [intent to deliver] only if: (1) there is evidence in addition to the weight of the drug that the person intended to deliver or finance the delivery of the drug; or (2) the amount of the drug involved is at least twenty-eight (28) grams.” Cioe possessed more than twenty-eight grams of methamphetamine; thus the State was not required to present additional evidence to prove intent to deliver.² However, because the jury was not instructed regarding subsection (2), we address whether the State presented sufficient evidence in addition to the weight of the methamphetamine to establish that Cioe intended to deliver the drug.

[18] Intent, being a mental state, can only be established by considering the behavior of the relevant actor, the surrounding circumstances, and the reasonable inferences to be drawn therefrom. Richardson v. State, 856 N.E.2d 1222, 1227 (Ind. Ct. App. 2006), trans. denied (2007). An intent to deliver may be demonstrated by either direct or circumstantial evidence. Elvers v. State, 22 N.E.3d 824, 835 (Ind. Ct. App. 2014). Circumstantial evidence of a defendant's intent to deliver, such as possession of a large quantity of drugs, large amounts of currency, scales, plastic bags, and other paraphernalia, as well as evidence of other drug transactions, can support a conviction. Ladd v. State, 710 N.E.2d 188, 191 (Ind. Ct. App. 1999).

[19] Here, TCPD Detective Jason Shadwick testified that based on his training and twenty years of law enforcement experience, a gram of methamphetamine typically sells for $40 to $50 in the Tell City area. He further testified that a typical methamphetamine user consumes a “couple of grams [of methamphetamine] a day.” Tr. Vol. 2 at 139. When asked by the State if an individual possessing twenty-eight grams of methamphetamine would be considered a “user or a dealer[,]” Detective Shadwick answered, “Dealer.” Id. at 142. He also testified that if an individual possesses a large amount of drugs but not much cash, that is an indication that the individual had “just ․ replenished their stock[.]” Id. at 138.

[20] The evidence most favorable to the verdict established that Cioe was found with only $14 on his person. The 28.68 grams of methamphetamine that Cioe possessed was more than fourteen times the typical amount a single user would consume in a day and commanded a potential sale price of between $1,120 and $1,400. Based on the foregoing, we conclude that the State presented sufficient evidence to support Cioe's conviction for level 2 felony dealing in methamphetamine. Cioe's arguments to the contrary are merely an invitation to reweigh the evidence, which we will not do. See Willis, 27 N.E.3d at 1066. Accordingly, we affirm his conviction.

Section 3 – Cioe has failed to establish that his twenty-five-year executed sentence is inappropriate in light of the offense and his character.

[21] Cioe asks us to revise his sentence pursuant to Indiana Appellate Rule 7(B), which states, “The Court 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.” We apply a “holistic approach” to our 7(B) review. Lane v. State, 232 N.E.3d 119, 127 (Ind. 2024) (quoting Connor v. State, 58 N.E.3d 215, 219 (Ind. Ct. App. 2016)). When reviewing a sentence, our principal role is to leaven the outliers rather than necessarily achieve what is perceived as the correct result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Cioe bears the burden to show that his sentence is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218.

[22] “[S]entencing is principally a discretionary function in which the trial court's judgment should receive considerable deference.” Cardwell, 895 N.E.2d at 1222. “Such deference should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). As we assess the nature of the offense and character of the offender, “we may look to any factors appearing in the record.” Boling v. State, 982 N.E.2d 1055, 1060 (Ind. Ct. App. 2013). Ultimately, whether a sentence should be deemed inappropriate “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, 895 N.E.2d at 1224.

[23] Regarding the nature of the offense, we observe that “the advisory sentence is the starting point the Legislature selected as appropriate for the crime committed.” Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range for a level 2 felony is ten to thirty years, with the advisory sentence being seventeen and a half years. Ind. Code § 35-50-2-4.5. Cioe's sentence of twenty-two years for the level 2 felony is more than the advisory sentence but less than the maximum sentence he could have received. The trial court enhanced Cioe's sentence by three years for being a habitual offender, as negotiated by the parties in exchange for his admission to being a habitual offender, which was considerably less than the minimum it could have imposed absent an agreement. See Ind. Code § 35-50-2-8(i)(1) (“The court shall sentence a person found to be a habitual offender to an additional fixed term that is between: ․ eight (8) years and twenty (20) years, for a person convicted of ․ a Level 1 through Level 4 felony[.]”). The maximum sentence Cioe could have received was fifty years.

[24] Cioe argues that the nature of his offense supports a revision in his sentence because the 28.68 grams of methamphetamine found on his person, “suggests [that] the ․ methamphetamine was for personal use” rather than for purposes of dealing. Appellant's Br. at 10. This argument, however, is an impermissible invitation to reweigh the evidence. Nevertheless, we conclude that the nature of Cioe's offense does not render his sentence inappropriate. Cioe was caught with 28.68 grams of methamphetamine. His dealing conviction required proof of only ten grams of methamphetamine. Thus the amount of drugs involved in the crime was greatly in excess of that required for the offense, rendering his offense egregious. See Ind. Code § 35-48-4-1.1(a)(2). Given the quantity of drugs involved and the sub-minimum habitual offender enhancement imposed, we decline to revise Cioe's aggregate sentence in light of the nature of his offense.

[25] Regarding his character, Cioe concedes that his criminal history is “a statutory aggravating factor” but claims that his sentence is inappropriate because he has had “several traumatic experiences in his adult life, and [he] recognizes his need for substance abuse rehabilitation.” Appellant's Br. at 11. We assess a defendant's character by engaging in a broad consideration of his qualities. Madden v. State, 162 N.E.3d 549, 564 (Ind. Ct. App. 2021). An offender's character is shown by his “life and conduct.” Adams v. State, 120 N.E.3d 1058, 1065 (Ind. Ct. App. 2019). A typical factor we consider when examining a defendant's character is criminal history. McFarland v. State, 153 N.E.3d 369, 374 (Ind. Ct. App. 2020), trans. denied (2021).

[26] We note that Cioe did not include his pre-sentence investigation report in his appellant's appendix. However, the trial court found that Cioe's criminal history “date[d] back” to 1988 and included “various parole and probation violations[.]” Tr. Vol. 2 at 199. The trial court also found that Cioe committed the instant offense while on parole. For these reasons, Cioe has failed to demonstrate that his character justifies a revised sentence. In short, Cioe has not met his burden to establish that his sentence is inappropriate in light of the offense and his character. Accordingly, we affirm the sentence imposed by the trial court.

[27] Affirmed.

FOOTNOTES

1.   Officer Andry's body camera video of the incident was shown to the jury. However, the video was not entered into evidence during the trial.

2.   Cioe argues that the 28.68 grams of methamphetamine found on his person amounted to “less than one-half of an ounce[.]” Appellant's Br. at 10. However, we note that one ounce is equivalent to 28.3495 grams.

Crone, Judge.

Bradford, J., and Tavitas, J., concur.