PIERCE v. STATE (2024)

MEMORANDUM DECISION

Statement of the Case

[1] Following a guilty plea, Troy Pierce was convicted of possession of methamphetamine, a Level 5 felony, and possession of marijuana, a Class A misdemeanor. The trial court imposed an aggregate sentence of 1,440 days. Pierce now appeals, contending his sentence is inappropriate in light of the nature of the offenses and his character. Concluding Pierce's sentence is not inappropriate, we affirm.

Facts and Procedural History

[2] Although the guilty plea transcript reveals a small amount about the nature of Pierce's offenses, a more detailed version exists in the probable cause affidavit. Pierce cites the affidavit in his brief, and his presentence investigation report incorporates the probable cause affidavit by directing the reader to the affidavit for the official version of events surrounding his crimes. See Appellant's Br. pp. 4-5; Appellant's App. Confid. Vol. 2, p. 19. Therefore, we look to the affidavit for details of these offenses.

[3] After dark on an evening in August 2022, Deputy Logan Wilder with the Decatur County Sheriff's Office noticed a truck driving without its headlights or taillights illuminated. The deputy recognized the truck as belonging to Pierce. He was familiar with Pierce and was aware that Pierce's driving privileges were suspended. Deputy Wilder stopped the truck.

[4] As the deputy ran computer checks on Pierce, he also called for a K-9 unit. The K-9 performed an open-air sniff around the car and alerted to the presence of drugs. The officers then searched the truck and found a “one hitter” with plant material inside that appeared to be marijuana. Appellant's App. Confid. Vol. 2, p. 27 (Aff. for Prob. Cause). In a container under the dash the officers also found a bag with plant material that was consistent in appearance and odor with marijuana. And wrapped inside of a blue rag and placed between a plastic cover and the heater control box under the dash, they found a glass smoking device containing white residue that field tested positive for methamphetamine.

[5] The State charged Pierce with possession of methamphetamine while having a prior conviction for dealing methamphetamine, a Level 5 felony, and possession of marijuana, a Class A misdemeanor. Pierce pleaded guilty to both charges pursuant to a plea agreement that left his sentence to the trial court's discretion. The court sentenced Pierce to concurrent terms of 1,440 days on the felony and 360 days on the misdemeanor. He now appeals that sentence.

Discussion and Decision

[6] Pierce contends his sentence is inappropriate. Indiana Appellate Rule 7(B) authorizes us to revise a sentence if we determine it to be inappropriate in light of the nature of the offense and the character of the offender. Yet, sentence modification under Rule 7(B) is reserved for rare and exceptional cases. Wilmsen v. State, 181 N.E.3d 469, 472 (Ind. Ct. App. 2022) (quoting Livingston v. State, 113 N.E.3d 611, 612 (Ind. 2018)). Indeed, our Supreme Court has long said that sentencing is “ ‘principally a discretionary function in which the trial court's judgment should receive considerable deference.’ ” Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (quoting Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008)). The defendant bears the burden of persuading the appellate court that his sentence is inappropriate. Reynolds v. State, 142 N.E.3d 928, 944 (Ind. Ct. App. 2020), trans. denied.

[7] Pierce's total sentence is just one year more than the advisory for his felony offense and several years below his maximum possible sentence of seven years. See Ind. Code § 35-50-2-6 (2014) (sentencing range for Level 5 felony is between one and six years, with advisory sentence of three years); Ind. Code § 35-50-3-2 (1977) (sentence for Class A misdemeanor may not exceed one year).

[8] Pierce does not challenge the length of his sentence. Rather, he asserts only that it is inappropriate because he was ordered to serve it in the Department of Correction (DOC). He claims the entirety of his sentence should be served on home detention because his “more recent story” is that he “has become a responsible, productive member of society who is clean and sober.” Appellant's Br. p. 9.

[9] “The location where a sentence is to be served is an appropriate focus for application of our review and revise authority.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Nonetheless, it is quite difficult for a defendant to prevail on a claim that the placement of his sentence is inappropriate because the question under Rule 7(B) is not whether another sentence is more appropriate but whether the sentence imposed is inappropriate. Id. at 267-68. A defendant challenging the placement of his sentence must convince this Court that the given placement is itself inappropriate. Id. at 268.

[10] Pierce does not argue that placement in the DOC would derail the positive steps he has taken in his life, generally, or his effort to overcome his drug addiction, specifically. Moreover, our review of his character indicates his sentence is not inappropriate. Pierce's criminal history is fairly lengthy, and he concedes it does not reflect well on his character. See Appellant's Br. p. 8. Although not entirely clear, the evidence at sentencing showed that his criminal record includes at least nine convictions—five misdemeanors and four felonies, several of which concern dealing or possessing drugs. In addition, he was on probation when he committed the present offenses. Even a minor criminal record reflects poorly on a defendant's character. Pritcher v. State, 208 N.E.3d 656, 668 (Ind. Ct. App. 2023). Further, the fact that a defendant has committed an offense while on probation is a “substantial consideration” in our assessment of his character. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 2008), trans. denied.

[11] Additionally, the State questioned Pierce about an incident that occurred after he entered his plea in this matter but prior to sentencing. Pierce testified that he had an argument with his girlfriend/mother of his child that resulted in the Department of Child Services (DCS) filing a child in need of services (CHINS) petition alleging that he has substance abuse issues and a history of domestic violence such that the safety of the children in the home cannot be ensured while he is present. See Ex. Vol., p. 6 (State's Sent'g Ex. 1). In that case he was ordered to stay away from the very residence where he had requested to serve his home detention for this case. At sentencing, Pierce told the court that he had an alternate residence (his sister's house) and that he had been participating in services with DCS, including visitation with his daughter, random drug testing with negative results, and counselling. He also testified that in the year since his release from jail he had become employed, recently been promoted, and obtained his driver's license and insurance.

[12] At sentencing, the court considered Pierce's criminal history to be aggravating. Yet, it also recognized Pierce's efforts at rehabilitation by recommending his placement in an appropriate substance abuse treatment program in the DOC and stating it would consider a modification to his sentence upon his successful completion. See Tr. Vol. 2, p. 39; Appellant's App. Vol. 2, p. 39 (Sentencing Order).

[13] We, too, recognize and applaud Pierce's progress; however, to prevail on his claim he must show that the placement of his sentence is inappropriate. See King, 894 N.E.2d at 267-68. Pierce has offered no argument to support his assertion and has not persuaded us that his placement in the DOC is inappropriate.

Conclusion

[14] Based on the foregoing, we conclude the court's order that Pierce serve his sentence in the DOC is not inappropriate.

[15] Affirmed.

Robb, Senior Judge.

Altice, C.J., and Weissmann, J., concur.