Brian M. Helmick, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] After pleading guilty to Level 6 felony methamphetamine possession and two additional misdemeanors, the trial court sentenced Brian Helmick to an aggregate term of 850 days of incarceration. Helmick argues that the trial court abused its discretion in sentencing him and that his sentence is inappropriate. Because we disagree, we affirm.

Facts and Procedural History

[2] On June 23, 2023, during the traffic stop of a vehicle in which Helmick was a passenger, Blackford County police discovered a “glass smoking device containing a burnt residue” and “a container with a red lid containing a white crystal substance” later confirmed to be methamphetamine belonging to Helmick. Appellant's App. Vol. II p. 15. Helmick had apparently attempted to conceal this container when the traffic stop had been initiated. On July 6, 2023, after committing several traffic infractions, Helmick was stopped by Blackford County police, who observed him exhibiting signs of impairment from methamphetamine use. On January 3, 2024, police again observed Helmick committing several traffic infractions. Helmick, once again, exhibited signs consistent with methamphetamine use, and he failed several field sobriety tests and submitted to a saliva test which showed a positive result for methamphetamine.

[3] On May 8, 2024, Helmick pled guilty to Level 6 felony possession of methamphetamine; Class C misdemeanor operating a vehicle with a schedule I or II controlled substance or its metabolite in his blood; and Class C misdemeanor operating a vehicle while intoxicated. In exchange for the plea, the State agreed to dismiss remaining counts and charges. The parties agreed that sentencing would be left to the discretion of the trial court. The same day, the trial court took the plea agreement under advisement and ordered the preparation of a presentence investigation report (“PSI”). Specifically, the trial court ordered the Blackford County Probation Department “to update the [PSI]” and the defendant “to meet with probation and cooperate in all regard in the compiling of information for the report.” Appellant's App. Vol. II p. 61.

[4] On May 31, 2024, the Blackford County Probation Department filed a notice to the trial court that Helmick had failed to report to his previously-scheduled PSI interview. On June 11, 2024, a second notice was filed informing the trial court that Helmick had failed to report to his second scheduled PSI interview. The second notice asserted that “[d]ue to his failure to report to Probation on two separate occasions, and [Helmick's] continued failure to assist for his sentencing, this officer is unable to complete a PSI report to this Court.” Appellant's App. Vol. II p. 116.

[5] At the sentencing hearing on July 31, 2024, the trial court noted that Helmick had “failed to comply with any type of assistance on the preparation of [the PSI] on two separate occasions” and stated that “anything [Helmick] says will not be given much weight.” Tr. Vol. II p. 17. Helmick admitted at the hearing that he had missed the two probation appointments and had failed to assist with the PSI. He further testified that he had served seventeen years in the military, suffers from post-traumatic stress disorder (“PTSD”), and had previously sought treatment for substance abuse through the Department of Veterans Affairs. When asked whether he had a criminal history, Helmick answered, “I have little stuff. A couple things here and there. Yeah.” Tr. Vol. II p. 20. Helmick further admitted that he had previously had probation revoked, for which revocation he had spent seven months in prison in New Jersey. When the State stated that it had records indicating that Helmick had “six or seven pages” outlining “quite an extensive criminal history[,]” Helmick responded “[y]es, right.” Tr. Vol. II p. 21. Helmick, however, attempted to downplay his criminal history, claiming that his prior convictions “were small.” Tr. Vol. II p. 21.

[6] The trial court ultimately found as an aggravating factor that Helmick had been out on bail for felony possession of methamphetamine when he committed one of the misdemeanors in this case, and he had been out on bail for both of those offenses when he committed the other misdemeanor. The trial court found “as a particular aggravating factor that [Helmick had] failed to meet with the probation department on two separate occasions. Despite their outreaches ․ to meet with [him].” Tr. Vol. II p. 23. The court also found that Helmick's prior criminal history, although its extent was “unclear[,]” was an aggravating factor. Tr. Vol. II p. 23. The court found no mitigating factors and that “the aggravating factors greatly outweigh[ ] no mitigating factors.” Tr. Vol. II p. 23. Ultimately, the trial court sentenced Helmick to two years executed for the felony conviction and sixty days executed for each of the two misdemeanors, to be served consecutively.

Discussion and Decision

I. Sentencing—Abuse of Discretion

[7] Helmick contends that the trial court abused its discretion in sentencing him. Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds on reh'g, 875 N.E.2d 218 (Ind. 2007). “An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.” Id. (quotation omitted).

[8] We review for an abuse of discretion the court's finding of aggravators and mitigators to justify a sentence, but we cannot review the relative weight assigned to those factors. When reviewing the aggravating and mitigating circumstances identified by the trial court in its sentencing statement, we will remand only if the record does not support the reasons, or the sentencing statement omits reasons that are clearly supported by the record, and advanced for consideration, or the reasons given are improper as a matter of law.

Baumholser v. State, 62 N.E.3d 411, 416 (Ind. Ct. App. 2016) (internal citation and quotation omitted), trans. denied. “A single aggravating circumstance may be sufficient to enhance a sentence.” Id. at 417.

A. PSI

[9] Helmick first argues that because “[n]either a [PSI] nor a report that meets the requirements of I.C. 35-38-1-9 are part of this court's record[,]” the trial court abused its discretion in sentencing Helmick for the Level 6 felony.¹ Indiana Code section 35-38-1-8 provides the following:

(a) Except as provided in subsection (c), a defendant convicted of a felony may not be sentenced before a written presentence report is prepared by a probation officer and considered by the sentencing court. Delay of sentence until a presentence report is prepared does not constitute an indefinite postponement or suspension of sentence.

* * *

(c) A court may sentence a person convicted of a Level 6 felony without considering a written presentence report prepared by a probation officer. However, if a defendant is committed to the department of correction [(“DOC”)] or a community corrections program under IC 35-38-2.6, the probation officer shall prepare a report that meets the requirements of section 9 of this chapter to be sent with the offender to the department in lieu of the presentence investigation report required by section 14 of this chapter.

[10] Pursuant to this statutory language, a trial court is permitted to sentence a person convicted of a Level 6 felony without considering a written PSI. Furthermore, Helmick did not object to the trial court sentencing him without the benefit of a PSI. Helmick's failure to object on this basis below means that he has waived this claim for appellate review.² See Batchelor v. State, 119 N.E.3d 550, 556 (Ind. 2019) (“A party's failure to object to, and thus preserve, an alleged trial error results in waiver of that claim on appeal.”).

B. Proposed mitigating factors

[11] Helmick next argues that the trial court abused its discretion when it stated that anything Helmick says “will not be given much weight” and when it failed to find Helmick's proffered mitigating factors. Tr. Vol. II p. 17.

The finding of mitigating circumstances falls within the court's sentencing discretion. The trial court is not obligated to find a circumstance to be mitigating merely because it is advanced as such by the defendant, nor is it required to explain why it does not find a proffered circumstance to be mitigating. The court need not consider alleged mitigating circumstances that are highly disputable in nature, weight, or significance. Moreover, the trial court is not required to give the same weight to mitigating circumstances as does the defendant. On appeal, the defendant must show that the proffered mitigating circumstance is both significant and clearly supported by the record.

Kedrowitz v. State, 199 N.E.3d 386, 406 (Ind. Ct. App. 2022) (internal citations omitted), trans. denied. Before he testified, the trial court noted that Helmick “didn't participate in the [PSI]. Anything he says will not be given much weight.” Tr. Vol. II p. 17. Helmick testified that he served seventeen years in the military, suffers from PTSD, and had previously sought treatment for substance abuse through the Department of Veterans Affairs. While the trial court's comment may not have been the best practice, the trial court still heard Helmick's testimony, and, before sentencing, asked Helmick whether he had anything to add that had been left out. The trial court additionally noted that it had considered the evidence presented before entering the judgment. Thus, the trial court did consider Helmick's testimony and chose not to credit it, finding no mitigating factors. This was within the trial court's discretion.

II. Sentencing—Appropriateness

[12] Helmick also contends that his two-year sentence for Level 6 felony possession of methamphetamine is inappropriate. Indiana Appellate Rule 7(B) provides that “[t]he 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.” In analyzing such claims, we “concentrate less on comparing the facts of [the case at issue] to others, whether real or hypothetical, and more on focusing on the nature, extent, and depravity of the offense for which the defendant is being sentenced, and what it reveals about the defendant's character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008) (quotation omitted), trans. denied. The defendant bears the burden of persuading us that his sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).

[13] The advisory sentence for a Level 6 felony is one year, with a range of six months to two and one-half years. Ind. Code § 35-50-2-7. Helmick argues that “although he does have an uncertain criminal history, his lengthy service to this country speaks volumes as to his character and does not warrant the aggravated sentence imposed.” Appellant's Br. p. 12. While we agree that the extent of his criminal history is uncertain, Helmick did admit that he had a criminal history, to which the State referred as “quite an extensive criminal history[,]” a description to which Helmick did not object. Tr. Vol. II p. 21. Helmick further admitted that he had previously had probation revoked, for which revocation he had spent seven months in prison in New Jersey.

[14] Furthermore, Helmick was under the influence of methamphetamine when he was pulled over for committing a traffic violation less than two weeks after he had been arrested for possession of methamphetamine. Six months later, Helmick was, again, under the influence of methamphetamine when he was pulled over for other traffic violations. Neither Helmick's criminal history nor his conduct after his initial arrest for possession of methamphetamine reflects well on his character.

[15] Helmick argues that the nature of his felony offense “is a nonviolent one” with no victim, and thus, the two-year executed sentence for the offense is inappropriate. Again, Helmick pled guilty to Level 6 felony possession of methamphetamine. At the time of the June traffic stop in which Helmick was a passenger, Helmick had thrown the bottle containing methamphetamine into the dashboard compartment of the vehicle to conceal it, and he further appeared to be under the influence of methamphetamine when observed by police. Additionally, Helmick dangerously drove his vehicle while under the influence of methamphetamine twice after this initial stop. Helmick received a two-year sentence for his felony, which is below the maximum sentence of two and one-half years. Accordingly, Helmick has failed to carry his burden of convincing us that his sentence is inappropriate. See Sanchez, 891 N.E.2d at 176.

[16] The judgment of the trial court is affirmed.

FOOTNOTES

1.   To the extent that Helmick argues the trial court was required to continue the sentencing hearing because section 35-38-1-8(a) “contemplates continuances” for a PSI to be prepared, we note that subsection (c), which applied here, contains no such requirement.

2.   To the extent that the probation department has failed to prepare a report in lieu of the PSI as contemplated under section 35-38-1-8(c), we note that Helmick has made no showing that he has been prejudiced by this failure, and we fail to see how the failure to prepare such a report, required after a defendant is committed to the DOC, would result in an abuse of discretion during sentencing. Still, we would remind the State that section 35-38-1-8(c) requires, for a defendant sent to the DOC for a Level 6 felony without a PSI, that “the probation officer shall prepare a report that meets the requirements of section 9 of this chapter to be sent with the offender to the department in lieu of the presentence investigation report required by section 14 of this chapter.”

Bradford, Judge.

Judges Pyle and Kenworthy concur. Pyle, J., and Kenworthy, J., concur.