GABEHART v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] After pleading guilty to possession of cocaine and marijuana, the trial court sentenced Joshua Gabehart to an aggregate sentence of two-and-a-half years executed, the maximum concurrent sentence allowable for his convictions. Gabehart appeals, raising two issues, which we restate as (1) whether the trial court abused its discretion by sentencing him to the maximum allowable sentence for a Level 6 felony; and (2) whether his sentence is inappropriate in light of the nature of the offense and his character. Finding no error, we affirm.

Facts and Procedural History

[2] On May 12, 2024, a woman reported to the police that a man who called himself “Tattoo Josh,” later identified as Gabehart, sexually assaulted her. Transcript Vol. 4 at 15. That same evening, the police found Gabehart at a neighbor's house with a backpack containing cocaine and marijuana.¹ The State charged Gabehart with Level 6 felony Possession of Cocaine ² and Class B misdemeanor Possession of Marijuana,³ along with other crimes related to the alleged sexual assault.

[3] On September 16, 2024, Gabehart pled guilty to the possession charges after the trial court denied his motion to sever those charges from the sexual assault offenses. Ten days later, a jury acquitted Gabehart of the sexual assault charges.

[4] At sentencing on the possession charges, the State presented evidence that Gabehart's criminal history began in 1999 and consisted of at least twenty-five convictions in four states, including two misdemeanor convictions in the preceding six months.⁴ The State, misstating the advisory sentence for a Level 6 felony as “a year and a half[,]” recommended the trial court sentence Gabehart to an aggregate sentence of two years executed based on his “extensive” criminal history and because that sentence was the midpoint between the advisory and the maximum sentence of two-and-a-half years. Id. at 174-75.

[5] Before sentencing Gabehart, the trial court noted:

Mr. Gabehart does have an extensive criminal history ․ both [ ] misdemeanors and ․ at least two felonies ․ [that spans] technically, four decades, but one was from ’99, so really, it does span three decades ․ which would give – doin’ the math, here ․ a [ ] significant [ ] part of, if not all of, Mr. Gabehart's [ ] adult criminal life has been spent with low-level misdemeanors and felonies.

․

[T]he advisory sentence ․ is the middle point in the sentence is ․ a year and a half.

․

[I]t's always difficult ․ when you start going above ․ the advisory sentence [ ] on an aggravated sentence, especially with Level 6s, but this is one where ․ given ․ the length of criminal history here ․ and [ ] it does not appear [he] is making any changes.

[6] Id. at 177-178. The trial court also noted that Gabehart's criminal history included probation violations and leniency from the courts, including a history of suspended sentences, conditional discharge-type sentences, and “a lot of time served-type sentences.” Id. at 177. The trial court sentenced Gabehart to 910 days executed for possessing cocaine and 180 days executed for possessing marijuana, to be served concurrently. See Appellant's Appendix Vol. 2 at 63-65. Gabehart appeals.

Discussion and Decision

1. Sentencing Discretion

[7] Gabehart argues that the trial court abused its discretion by failing to consider his guilty plea as a mitigating factor, overstating the timeframe of his criminal history, and misstating the advisory sentence for a Level 6 felony at sentencing.

[8] Sentencing decisions, including the finding of mitigating circumstances, “rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. A trial court is required to enter a sentencing statement, including “a reasonably detailed recitation of the trial court's reasons for imposing a particular sentence[,]” for a felony offense, id., including “identify[ing] all significant mitigating circumstances” it finds. Id. at 493. But a trial court is not required to find mitigating circumstances nor explain why it does not accept one argued by a defendant. Id.; see Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993).

[9] Here, the trial court did not specifically find any mitigating circumstances. Gabehart argues that the trial court abused its discretion by not finding his guilty plea to be a mitigating circumstance because his “open” guilty plea was without the benefit of a plea bargain capping his sentencing exposure. Appellant's Br. at 16. Such an allegation “requires [Gabehart] to establish that the mitigating evidence is both significant and clearly supported by the record.” Anglemyer, 868 N.E.2d at 493. But a trial court does not have to credit a guilty plea as a significant mitigating circumstance. See Cherry v. State, 772 N.E.2d 433, 436-37 (Ind. Ct. App. 2002) (“not every plea of guilty is a significant mitigating circumstance that must be credited by a trial court[ ]”) (quoting Trueblood v. State, 715 N.E.2d 1242, 1257 (Ind. 1999)), cert. denied. For example, a guilty plea's significance “is lessened if it is made on the eve of trial and after the State has already expended significant resources.” Primmer v. State, 857 N.E.2d 11, 16 (Ind. Ct. App. 2006), trans. denied.

[10] Gabehart's motion to sever was denied. Then one week before his trial, he pled guilty to the drug possession charges. Thus, Gabehart's plea benefitted him by ensuring that the jury would not hear evidence of his alleged drug possession during his sexual assault trial. See Scott, 840 N.E.2d at 383. Gabehart also makes no argument that his guilty plea rose to the level of a significant mitigating circumstance. However, even if it did, the trial court found several aggravating circumstances justifying the increase in Gabehart's sentence, including his criminal history and previous leniency from the courts. “[O]ne valid aggravating factor is enough to enhance a sentence.” Harris v. State, 163 N.E.3d 938, 956 (Ind. Ct. App. 2021), trans. denied. And a trial court need not weigh aggravating and mitigating circumstances against each other. Anglemyer, 868 N.E.2d at 491. The trial court did not abuse its discretion by not finding Gabehart's guilty plea to be a significant mitigating circumstance.

[11] Gabehart next argues that the trial court abused its discretion by misstating the advisory sentence for a Level 6 felony and the length of his criminal past. First, at sentencing the trial court repeated the State's mistake by stating that the advisory sentence for a Level 6 felony conviction was “the middle point in the sentence[,]” which it said was “a year and [a] half.” Tr. Vol. 5 at 177. The trial court was correct that the Level 6 felony mid-point is one and a half years, but the advisory sentence and the middle point between the minimum and maximum sentence will not always reflect the same amount of time. Ind. Code § 35-50-2-7(b) (stating that “[a] person who commits a Level 6 felony ․ shall be imprisoned for a fixed term of between six (6) months and two and one-half (2 1/212) years, with the advisory sentence being one (1) year”). However, from our review of the record, it appears the trial court did not contemplate imposing the advisory sentence for Gabehart's possession convictions. In fact, the judge specifically referenced his extensive criminal history and the fact that “it [did] not appear [he was] making any changes[ ]” and imposed the maximum sentence. Tr. Vol. 5 at 178. Gabehart presents no evidence to show that the trial court would have imposed a lesser sentence had it understood the advisory sentence to be one year. Nor does Gabehart argue that the sentencing statement was based on an improper reason as a matter of law. See Anglemyer, 868 N.E.2d at 490-491. Thus, this misstatement did not bear on the trial court's sentencing of Gabehart.

[12] Finally, Gabehart argues that the trial court misstated his criminal history as “span[ning] three decades,” making it sound as if he engaged in criminal activity for thirty years, when in actuality it was only twenty-five years. We agree with the State that this argument is no more than a quibble with the court's semantics. Gabehart presents no argument to support that his twenty-five years of criminality, rather than “three decade[s’]” worth, would have resulted in a shorter sentence. In fact, the trial court showed it understood the beginning of Gabehart's criminal career by specifically noting that his first criminal conviction was in 1999. Regardless, Gabehart's “extensive criminal history” was long and supported by the record. We find nothing in the trial court's statement to indicate that the court relied upon reasons that are improper as a matter of law in sentencing Gabehart. Tr. Vol. 5 at 177. Thus, the trial court did not abuse its discretion.

2. Appropriateness of Sentence

[13] Gabehart argues that his sentence is inappropriate given the nature of his offense and his character. See Appellee's Br. at 18-21. Under Indiana Appellate Rule 7(B), we “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.” “The two prongs of 7(B) review are ‘separate inquiries to ultimately be balanced in determining whether a sentence is inappropriate.’ ” Crum v. State, 239 N.E.3d 858, 861 (Ind. Ct. App. 2024) (quoting Lane v. State, 232 N.E.3d 119, 126 (Ind. 2024)). “To the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief.” Id. (quoting Lane v. State, 232 N.E.3d at 127). We conduct Rule 7(B) review with “substantial deference” to the trial court because 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), cert. denied (internal quotations and citations omitted).

[14] When assessing whether a sentence is inappropriate, we first consider the statutory range established for the class of the offense. Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011), reh'g denied. A Level 6 felony carries a sentencing range of six months to two-and-a-half years imprisonment, with an advisory sentence of one year. See Ind. Code § 35-50-2-7(b).

[15] “The nature of the offense is found in the details and circumstances of the commission of the offense and the defendant's participation.” Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). When the trial court deviates from the advisory sentence, we consider whether the circumstances of the offense were “more or less egregious” than the typical offense contemplated for the advisory sentence. Norton v. State, 235 N.E.3d 1285, 1291 (Ind. Ct. App. 2024) (quoting T.A.D.W. v. State, 51 N.E.3d 1205, 1211 (Ind. Ct. App. 2016)).

[16] The trial court sentenced Gabehart to the maximum allowable sentence for a Level 6 felony. By doing so, Gabehart argues that the trial court put him in the “worst of the worst” category. Appellant's Br. at 17. Indeed, our Supreme Court has found “the maximum possible sentences are generally most appropriate for the worst offenders.” Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002) (quoting Evans v. State, 725 N.E.2d 850, 851 (Ind. 2000)). But as our Supreme Court clarified:

This is not, however, a guideline to determine whether a worse offender could be imagined. Despite the nature of any particular offense and offender, it will always be possible to identify or hypothesize a significantly more despicable scenario. Although maximum sentences are ordinarily appropriate for the worst offenders, we refer generally to the class of offenses and offenders that warrant the maximum punishment. But such class encompasses a considerable variety of offenses and offenders.

[17] Id. (emphasis in original). We disagree with Gabehart's characterization that drug possession is an “essentially victimless” crime. Appellant's Br. at 20. Our Indiana Supreme Court has made it clear that this is not the case, as “possessing even small amounts of drugs threatens society.” State v. Timbs, 169 N.E.3d 361, 373 (Ind. 2021). Nonetheless, possession of cocaine, the only felony for which Gabehart was convicted, has a wide sentencing range—six months to two-and-a-half years.⁵ And while the small amounts of drugs in Gabehart's possession, standing alone, may not support the maximum sentence, that is not the only basis for the trial court's sentence. See Hill v. State, 157 N.E.3d 1225, 1231 (Ind. Ct. App. 2020) (“But even if Hill is right about the nature of his offense, his criminal history alone justifies his maximum sentence”). We find the nature of Gabehart's offenses does not warrant a revision of his sentence. We now turn to assessing his character.

[18] “A defendant's life and conduct are illustrative of his ․ character.” Morris v. State, 114 N.E.3d 531, 539 (Ind. Ct. App. 2018), trans. denied. When considering the character of the offender, his criminal history is relevant, as are his “qualities, life, and conduct.” Crabtree v. State, 152 N.E.3d 687, 705 (Ind. Ct. App. 2020), trans. denied. “The significance of a criminal history in assessing a defendant's character and an appropriate sentence varies based on the gravity, nature, and number of prior offenses in relation to the current offense.” Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). “Even a minor criminal record reflects poorly on a defendant's character[.]” Cramer v. State, 240 N.E.3d 693, 700 (Ind. 2024) (quoting Reis v. State, 88 N.E.3d 1099, 1105 (Ind. Ct. App. 2017)).

[19] Gabehart's life and conduct paint the picture of a man who has shown little regard for the law. His criminal history includes at least twenty-five convictions throughout his adult life, including felonies and misdemeanor crimes of violence, such as domestic battery. Despite receiving lenient treatment from the courts—such as several suspended sentences—he continued to commit crimes and violate the terms of his probation. These crimes were not limited to his young adult life; Gabehart added two more convictions in the six months before being charged here, showing his character is not such that a revision of his sentence is necessary. See Tr. Vol. 5 at 177. We conclude that his sentence is not inappropriate given the extensive nature of his criminal history and his character.

Conclusion

[20] The trial court did not abuse its discretion in sentencing Gabehart to the maximum allowable sentence. And his sentence is not inappropriate in light of the nature of his offense and his character.

[21] Affirmed.

FOOTNOTES

1.   According to defense counsel, there was only .05 grams of cocaine and a “small amount of hardly anything of marijuana.” Tr. Vol. 5 at 175.

2.   Ind. Code § 35-48-4-6(a).

3.   I.C. § 35-48-4-11(a)(1).

4.   Evidence of Gabehart's criminal history was limited to the State's reading of his criminal convictions from the National Crime Information Center; however, these documents were not submitted into evidence and are not part of the appellate record.

5.   Because the sentences were run concurrently, we focus on the longer of the two sentences.

DeBoer, Judge.

Bailey, J., and Vaidik, J., concur