NELSON v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] After Wesley Nelson pled guilty under two separate cause numbers to three Level 6 felonies and two Class A misdemeanors, the trial court sentenced him to an aggregate term of five years. Nelson appeals his sentence, arguing that it is inappropriate in light of the non-violent nature of the offenses and his character.

[2] We affirm.

Facts & Procedural History

[3] On October 25, 2024, an officer with the Fort Wayne Police Department (FWPD) was on patrol when he observed a vehicle with an expired license plate. The officer also determined that the vehicle was traveling at forty-two miles per hour in a thirty-five mile-per-hour zone. After the officer initiated a traffic stop by activating the lights and sirens on his police vehicle, the driver, later identified as Nelson, accelerated to speeds in excess of fifty-five miles per hour on residential streets. Nelson finally crashed into a concrete median and fled from the vehicle on foot. The officer caught up to Nelson and took him into custody without further incident. During a search incident to arrest, the officer located inside Nelson's left ear canal a clear bag containing a gray powdery substance. The substance field tested positive for fentanyl. On October 28, 2024, the State charged Nelson under Cause No. 02D04-2410-F6-1603 (F6-1603) with Level 6 felony possession of cocaine or a narcotic drug; Level 6 felony resisting law enforcement (by car); Class A misdemeanor resisting law enforcement (fleeing on foot); and Class A misdemeanor driving while suspended. Nelson was released on his own recognizance with enhanced pretrial supervision.

[4] On November 4, 2024, officers with FWPD found Nelson and a woman sitting in a car in the parking lot of a hotel during early morning hours. The officers approached the car, and Nelson and the woman identified themselves. The officers noticed a small bag with a “rock like substance” inside Nelson's ear and asked him to remove it. Appendix Vol. II at 28. When Nelson removed the bag, he dropped it. The substance in the baggie fell out and was not recovered but the baggie was located outside the vehicle. In the back seat of the car, the officers located two other “baggies” that Nelson admitted were his. Id. The substances in the baggies field tested positive for cocaine. The State charged Nelson under Cause No. 02D04-2411-F6-1661 (F6-1661) with Level 6 felony possession of cocaine or a narcotic drug. The same day, the State filed under F6-1603 a notice with pretrial services that Nelson had violated the conditions of his monitored controlled release by committing a new offense.

[5] On January 7, 2025, Nelson, pro se and without the benefit of a plea agreement, pled guilty as charged under both F6-1603 and F6-1661. The trial court held a sentencing hearing for both causes on January 31, 2025.¹ Nelson addressed the court and attributed his conduct to the recent loss of his parents. He requested a recommendation to drug court or HOPE probation for rehabilitation. The State advised that Nelson was ineligible for either.

[6] In sentencing Nelson, the court identified Nelson's criminal history as an aggravating circumstance, noting that as an adult he had accumulated eighteen prior misdemeanor convictions and seven prior felony convictions.² In addition, he had his suspended sentence revoked six times, probation revoked four times,³ a suspended sentence modified twice, his work release placement revoked once, his probation modified once, and his sentence modified once. Nelson was out on bond in F6-1603 when he committed the new offense charged in F6-1661. After reviewing his criminal history, the court expressly found that efforts at rehabilitation had failed. The trial court considered Nelson's plea of guilty and acceptance of responsibility as mitigating.

[7] Under F6-1603, the trial court sentenced Nelson to concurrent two-year terms for each Level 6 felony, and concurrent one-year terms for the Class A misdemeanors. The court ordered the two-year sentence to be served consecutively to the one-year sentence, for an aggregate term of three years under F6-1603. Under F6-1661, the court sentenced Nelson to two years. The court ordered the sentences under F6-1603 to be served consecutively to the sentence in F6-1661, for a total aggregate sentence of five years. Nelson now appeals.

Discussion & Decision

[8] Nelson seeks our independent review of the appropriateness of his sentence under Ind. Appellate Rule 7(B), which allows us to revise a sentence if “after due consideration of the trial court's decision” we find that “the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Hoak v. State, 113 N.E.3d 1209, 1209 (Ind. 2019). As sentencing is principally a discretionary function, deference to the trial court “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). Nelson bears the responsibility of persuading us that his sentence is inappropriate. See Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018).

[9] In determining whether a sentence is inappropriate, the advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed. Brown v. State, 160 N.E.3d 205, 220 (Ind. Ct. App. 2020). The sentencing range for a Level 6 felony is between six months and two and one-half years, with the advisory sentence being one year. Ind. Code § 35-50-2-7(b). For a Class A misdemeanor, a court may impose a sentence of not more than one year. I.C. § 35-50-3-2. For each of his Level 6 felony convictions, Nelson was sentenced to an enhanced term of two years and for each of his Class A misdemeanor convictions, he received one-year sentences. Because Nelson was on bond when he committed the offense in F6-1661, the trial court was required by statute to order the aggregate three-year sentence in F6-1603 and the two-year sentence in F6-1661 be served consecutively. See I.C. § 35-50-1-2(e).

[10] Regarding the nature of the offense, Nelson asserts that possession of drugs is a non-violent offense that does not warrant an enhanced sentence. Nelson, however, makes no mention of the fact that he recklessly endangered others when he fled from police in an attempt to evade responsibility for his crimes. He also does not mention that a week after being charged under F6-1603, he was again found in possession of narcotics. While his possession of drugs (for claimed personal use) was non-violent, other circumstances surrounding his crimes do not dictate against the sentence imposed.

[11] As to the character of the offender, Nelson does not deny that he has a significant criminal history but maintains that the recent loss of his parents and the fact that he was obviously struggling with his addiction is significant in terms of evaluating his character at the time of the offenses. Nelson asserts that his addiction issues could be better dealt with outside of the prison system and maintains that drug court, probation, or community corrections would be more beneficial. We disagree. As the trial court found, prior attempts at rehabilitation have failed. Nelson's criminal history evidences such failures. As recounted above, Nelson has a significant criminal history, has been unsuccessfully discharged from probation more times than he successfully completed it, and courts have modified his sentences on numerous occasions. In short, Nelson repeatedly abused the leniency afforded him in the past. Nelson has not convinced us that his character is deserving of a lesser sentence.

[12] The total aggregate sentence of five years is not inappropriate.

[13] Affirmed.

FOOTNOTES

1.   Nelson was represented by private counsel for the sentencing hearing.

2.   The pre-sentence investigation report showed that Nelson had two prior juvenile delinquency adjudications. His first adjudication occurred when he was fourteen years old and was for Class A misdemeanor possession of marijuana.

3.   The PSI shows that Nelson successfully completed probation two times.

Altice, Chief Judge.

Pyle, J. and DeBoer, J., concur.