MUSICK v. STATE (2025)

MEMORANDUM DECISION

[1] Brandon Musick (“Musick”) pleaded guilty to possession of methamphetamine, a Level 5 felony,¹ and unlawful possession of a firearm by a serious violent felon, a Level 4 felony.² The trial court sentenced Musick to an aggregate sentence of ten years, with six years executed in the Indiana Department of Correction (“the DOC”), two years suspended with Musick directly placed on community corrections, and two years suspended to probation. Musick now appeals, claiming his sentence is inappropriate under Appellate Rule 7(B). We affirm.

Facts and Procedural History

[2] On July 14, 2023, officers of the Anderson Police Department (“APD”) were called to assist parole officers in executing an arrest warrant for Musick. During APD's search incident to arrest, officers discovered a crystal-like substance in his front right pocket. This substance later tested positive for methamphetamine and was found to weigh 2.09 grams. As a condition of Musick's parole “he and anything in his possession [was] subject to search.” Appellant's App. Vol. 2 p. 13. APD assisted in the search of Musick's vehicle, which he had been driving at the time of his arrest. In his vehicle, officers discovered a “glass smoking pipe with burnt residue, a pistol magazine ․ that was loaded, and a handgun holster on the driver's side rear passenger floor space.” Tr. p. 21. Officers then asked Musick if he had a firearm in the vehicle, and he said, “he did not.” Id. Upon further search of the vehicle, officers found a handgun above the driver's visor, which was where Musick had been seated. At the time of Musick's arrest, he had a prior conviction for unlawful possession of a firearm by a serious violent felon.

[3] On July 17, 2023, the State charged Musick with Count I: possession of methamphetamine, a Level 5 felony, and Count II: unlawful possession of a firearm by a serious violent felon, a Level 4 felony. On that date, the State filed a notice of intent to pursue a habitual offender sentence enhancement.

[4] On February 12, 2024, Musick, after being advised of his rights and examined, pleaded guilty to possession of methamphetamine, a Level 5 felony, and unlawful possession of a firearm by a serious violent felon, a Level 4 felony. At the hearing, Musick stated he was pleading without an agreement, but the State informed the trial court that it had agreed not to seek the habitual offender enhancement as a benefit for Musick's guilty plea.

[5] On March 11, 2024, the trial court sentenced Musick. At the sentencing hearing, Musick testified and claimed to take responsibility for his actions. Musick testified that he didn't go looking for the gun. Rather, Musick testified that his girlfriend obtained the gun from her father, and stated “[he] knew that she, we had seen [the gun] at her dad's, [he] didn't know that she grabbed it, she was supposed to have left it at her dad's.” Id. at 31. This statement was later contradicted by a subsequent statement in his presentence investigation report (“PSI”), where he stated, “I felt like my life was in danger. It is the only reason I had a gun.” Appellant's App. Vol. 2 p. 60.

[6] As to his sentence, Musick argued for placement in purposeful incarceration or recovery while incarcerated for any executed portion of his sentence. The trial court found Musick's criminal history and the fact that he was on parole when this offense was committed as aggravators. The court made two notes in regard to his criminal history: first, the length of history and that the present offense is a repeat offense; and secondly, that “the number of interventions that the criminal justice system has attempted to offer and or afford Mr. Musick throughout his criminal history ․ unfortunately, many of those have not been successful.” Tr. pp. 41–42. As for mitigators, the court concluded that he did plead guilty and “pled without a specific benefit of a plea agreement, although it appears that at some point during this case that there likely would've been a habitual offender discussion had.” Id. at 42. Furthermore, the court declined to identify Musick's history of substance abuse and mental health related issues as a mitigating factor, but noted those “certainly have contributed if not been some of the driving force behind some of his criminal behavior over the course of his lifetime.” Id. at 42–43. Ultimately, the court found that the aggravators outweighed the mitigators, resulting in a sentence above the advisory sentence. The court further stated, “the court takes into consideration some of the mitigation in determining how the sentence should be divided up.” Id. at 43. The trial court declined to place Musick in the programs he requested at sentencing due to “criminal history and the number of times the system has tried to give [him] opportunities to keep [himself] out of that seat.” Id. at 46. The trial court stated, “that doesn't mean that the court may not consider [such alternatives] at a later date.” Id. “The court can certainly appreciate that not all people are ready to make the change at the same time and maybe that's been your situation, maybe now you are ready, but you're going to have to earn it this time.” Id.

[7] Musick was sentenced to an aggregate ten-year sentence, consisting of concurrent sentences of four years for the possession of methamphetamine conviction and ten years for unlawful possession of a firearm by a serious violent felon conviction. The trial court specified that six years of the ten-year sentence would be executed, with two years suspended as a direct placement with community corrections, and two years suspended to probation. Musick now appeals.

Discussion and Decision

[8] Musick argues that the trial court's sentence is inappropriate in light of the nature of the offense and the character of the offender. The Indiana Constitution authorizes appellate review and revision of a trial court's sentencing decision. See Ind. Const. art. 7, §§ 4, 6; Jackson v. State, 145 N.E.3d 783, 784 (Ind. 2020). Pursuant to Indiana Appellate Rule 7(B), this court may revise a sentence “if, after due consideration of the trial court's decision, the [c]ourt finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.”

[9] Our review under Appellate Rule 7(B) “should focus on the forest—the aggregate sentence—rather than the trees—consecutive or concurrent, number of counts, or length of the sentence on any individual count.” Wilson v. State, 157 N.E.3d 1163, 1181 (Ind. 2020) (citing Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). The Indiana Supreme Court has long said that “sentencing is principally a discretionary function in which the trial court's judgment should receive considerable deference.” Cardwell, 895 N.E.2d at 1222 (citing Morgan v. State, 675 N.E.2d 1067, 1072 (Ind. 1996)). “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).

[10] When addressing a claim that the trial court imposed an inappropriate sentence, we note that “the nature of the offense, the presumptive sentence (or now the advisory sentence) is the starting point the Legislature has selected as an appropriate sentence for the crime committed.” Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006). Here, Musick pleaded guilty to possession of methamphetamine, a Level 5 felony, and unlawful possession of a firearm by a serious violent felon, a Level 4 felony. In exchange for his guilty plea, the State agreed not to pursue the habitual offender enhancement. A conviction for a Level 5 felony carries a sentencing range of one year to six years, with an advisory sentence of three years. Ind. Code § 35-50-2-6(b). A conviction for a Level 4 felony carries a sentencing range of two years to twelve years, with an advisory sentence of six years. I.C. § 35-50-2-5.5. Here, the trial court sentenced Musick to four years on the Level 5 felony and ten years on the Level 4 felony, ordering the sentence to run concurrently for an aggregate sentence of ten years.

[11] When reviewing the nature of the offense, this court considers “the details and circumstances” of the commission of the offense. Merriweather v. State, 151 N.E.3d 1281, 1286 (Ind. Ct. App. 2020) (citing Washington v. State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied). The nature of Musick's criminal conduct was that, while he was on parole for previous convictions for unlawful possession of a firearm by a serious violent felon and theft of a firearm, he possessed 2.09 grams of methamphetamine and a firearm. Musick argues that his criminal conduct was not particularly egregious or shocking and there was no indication that he had ever used the firearm. Further, he argues that he was unaware the firearm was in the vehicle at time of his arrest, an assertion that contradicts the subsequent statement in his PSI where he stated “I felt like my life was in danger. It is the only reason I had a gun.” Appellant's App. Vol. 2 p. 60. Moreover, Musick argues that he was cooperative with law enforcement, despite telling officers there was no gun after they found the magazine and holster in the vehicle. We ultimately conclude that Musick has failed to present compelling evidence that portrays the nature of his offenses in a positive light, accompanied by restraint or regard. See Stephenson, 29 N.E.3d at 122.

[12] When reviewing the character of the offender, his character “is found in what we learn of his life and conduct.” Merriweather v. State, 151 N.E.3d 1281, 1286 (Ind. Ct. App. 2020) (citing Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011)). Musick argues in support of his character that he took responsibility and showed remorse. While we acknowledge that Musick readily admitted to possessing the methamphetamine, he denied the existence of the firearm when officers discovered the holster and magazine. At sentencing, Musick continued to downplay his culpability, claiming the firearm belonged to his girlfriend, that he was unaware the firearm was in the vehicle, and he had been a victim of a robbery. Musick's lack of candor regarding the firearm does not place his character in a good light.

[13] Musick's criminal history also demonstrates poor character. Musick was on parole for committing the same offense–being a serious violent felon in possession of a firearm–when he was arrested in this case. Musick has an extensive criminal history, which includes convictions for “two (2) misdemeanors, eleven (11) felonies, including forgeries, domestic violence, batteries um [sic], he was violated on community supervision eight (8) times, including his termination from problem solving court, two (2) crimes of violence, one (1) crime against a child.” Tr. p. 38. Further, Musick has previously “done twenty[-]three (23) years of actual time.” Id. at 33. Musick was provided numerous opportunities and programming to deal with his substance abuse issues, including drug court and Recover While Incarcerated, but failed to either complete or respond to the programming. Musick's history of criminal conduct reflects poorly on his character. Consequently, Musick has failed to identify “substantial virtuous traits or persistent examples of good character” to support appellate revision of his sentence. Stephenson, 29 N.E.3d at 122.

[14] Musick has not demonstrated that his ten-year aggregate sentence is inappropriate in light of the nature of the offenses and his character.

[15] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-48-4-6.1(a).

2.   I.C. § 35-47-4-5(c).

Foley, Judge.

Bailey, J. and Bradford, J., concur.