TUBBS v. STATE (2020)

MEMORANDUM DECISION

[1] Christopher A. Tubbs (“Tubbs”) pleaded guilty to dealing in methamphetamine ¹ as a Level 4 felony and to being an habitual offender.² The trial court imposed an aggregate sentence of twenty years. Tubbs now appeals his sentence and raises the following issue for our review: whether the sentence is inappropriate in light of the nature of the offense and his character.

[2] We affirm.

Facts and Procedural History

[3] On April 4, 2019, the State charged Tubbs with dealing in methamphetamine as a Level 4 felony and possession of methamphetamine as a Level 6 felony. Appellant's Conf. App. Vol. II at 11-14. The State also alleged Tubbs to be an habitual offender. Id. The State claimed that on June 12, 2018, Tubbs sold approximately 3.4 grams of methamphetamine to a confidential informant working with the Tippecanoe County Drug Task Force. Id. at 12. Tubbs agreed to plead guilty to Level 4 felony dealing in methamphetamine and to being an habitual offender. Id. at 16-17. In exchange, the State dismissed the remaining count of Level 6 felony possession of methamphetamine. Id.

[4] Prior to the sentencing hearing on January 3, 2019, the probation department compiled a presentence investigation report (“PSI”) regarding Tubbs's history of criminal offenses and substance abuse. Id. at 25-37. The report showed that in 2001, as a juvenile, Tubbs was adjudicated delinquent for what would have been misdemeanors of disorderly conduct and battery resulting in bodily injury if committed by an adult. Id. at 28. As an adult, Tubbs has two misdemeanor convictions in 2007, one for battery one for possession of marijuana; he also has a felony conviction for attempted robbery in 2007, and a felony conviction for theft in 2010. Id. at 32. After the commission of the instant offenses, he was again convicted of possession of marijuana and twice for the possession of methamphetamine in 2019. Id. The PSI revealed that Tubbs had eight petitions to revoke probation against him due to violations and that seven of them had been found true. Id. Tubbs was unsatisfactorily terminated from probation twice and was on probation when he committed the instant offense. Id.

[5] The PSI further showed that Tubbs had admitted to a long history of substance abuse beginning when he was a child. Id. at 35. Tubbs first tried marijuana at the age of eleven and was using it daily between the ages of thirteen and nineteen. Id. He consumed cocaine powder “every few days” between the ages of sixteen and seventeen and took crack cocaine “on the weekends” between the ages of sixteen and eighteen. Id. Between the ages of sixteen and eighteen, Tubbs used methamphetamine “every three days,” then between the ages of twenty-eight and thirty-one, he used methamphetamine “everyday.” Id. In addition, Tubbs admitted to using mushrooms twice and ecstasy “every now and then” when he was sixteen. Id. Despite his history of drug use, Tubbs claimed that going to school or work under the influence of drugs never caused problems for him. Id. He received out-patient substance abuse treatment at Cummins Mental Health from the ages of fourteen to fifteen and participated in treatment while incarcerated in the Department of Correction from 2009 to 2010. Id. He did not report that he voluntarily sought substance abuse treatment at any time. Id.

[6] On January 3, 2020, a sentencing hearing was held. Tr. Vol. II at 19. The trial court sentenced Tubbs to ten years for dealing in methamphetamine and enhanced the sentence by ten years because Tubbs was an habitual offender. Id. at 21-24. Tubbs now appeals.

Discussion and Decision

[7] Tubbs contends that his sentence is inappropriate. Pursuant to Indiana Appellate Rule 7(B), this court “may revise a sentence authorized by statute 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.” Our Supreme Court has explained that the principal role of appellate review should be to attempt to leaven the outliers, “not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We independently examine the nature of Tubbs's offense and his character under Appellate Rule 7(B) with substantial deference to the sentence imposed by the trial court. See Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015). “In conducting our review, we do not look to see whether the defendant's sentence is appropriate or if another sentence might be more appropriate; rather, the test is whether the sentence is ‘inappropriate.’ ” Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied. Whether a sentence is inappropriate ultimately depends upon “the culpability of the defendant, the severity of the crime, the damage done to others, and a myriad the trial of other factors that come to light in a given case.” Cardwell, 895 N.E.2d at 1224. Tubbs bears the burden of persuading us that his sentence is inappropriate. Id.

[8] Tubbs does not challenge his sentence on the grounds of his character, but he contends that the twenty-year aggregate sentence is inappropriate in light of the nature of his offense regardless of his character. Appellant's Br. at 13. Specifically, Tubbs argues that the amount of methamphetamine that he delivered was only “a small amount” (approximately 3.4 grams) and that the nature of his offense was non-violent because he was “merely selling methamphetamine to fund [his] own addiction.” Id. at 13-14; Tr. Vol. II at 31.

[9] When 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. Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015); Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014), trans denied. Here, Tubbs was convicted of Level 4 felony dealing in methamphetamine. A person convicted of a Level 4 felony faces a sentencing range between two and twelve years, with an advisory sentence of six years. Ind. Code § 35-50-2-5.5. A person found to be an habitual offender faces an additional fixed term between six and twenty years if convicted of a Level 4 felony. I.C. § 35-50-2-8(i)(1). Therefore, the maximum sentence that Tubbs could have received from the trial court was thirty-two years. The trial court imposed a sentence of ten years for Tubbs's Level 4 felony and ten years for his habitual offender adjudication, for an aggregate sentence of twenty years, which is twelve years less than the trial court was authorized to impose pursuant to his plea agreement.

[10] As this court has recognized, 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), trans. denied. “When determining the appropriateness of a sentence that deviates from an advisory sentence, we consider whether there is anything more or less egregious about the offense as committed by the defendant that ‘makes it different from the typical offense accounted for by the legislature when it set the advisory sentence.’ ” Moyer v. State, 83 N.E.3d 136, 142 (Ind. Ct. App. 2017) (quoting Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011)), trans. denied.

[11] Tubbs sold 3.4 grams of methamphetamine to a confidential informant. He claims that his sentence is inappropriate because (1) the amount of the drug was small, (2) the offense was non-violent and (3) he only intended to sell methamphetamine to fund his own addiction.

[12] We find Tubbs's argument unavailing. First, the amount of the drug had already been taken into consideration when the State charged him with Level 4 felony, which requires the drug to be of at least one gram but less than five grams. Ind. Code § 35-48-4-1.1. Secondly, the Level 4 felony to which he agreed to plead guilty does not require an element of violence; therefore, the fact that he was not violent when committing the felony of dealing in methamphetamine does not affect our analysis of his sentencing under the nature-of-the-offense prong. Id. Lastly, the mens rea element of the instant offense only requires that Tubbs “knowingly or intentionally” delivered methamphetamine. Id. His intended use of the earnings after the commission of the crime was irrelevant.

[13] With regard to the character of the offender, the court has recognized that it should be found in what we learn of the offender's life and conduct. Perry, 78 N.E.3d at 13. One relevant factor is the defendant's criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013). “ ‘Even a minor criminal record reflects poorly on a defendant's character.’ ” Morris v. State, 114 N.E.3d 531, 539 (Ind. Ct. App. 2018) (quoting Reis v. State, 88 N.E.3d 1099, 1105 (Ind. Ct. App. 2017)), trans. denied.

[14] Although Tubbs does not make any argument regarding his character, our review of such supports that his sentence was not inappropriate. Tubbs has a lengthy history of criminal offenses. App. Conf. Vol. II at 28-32. As a juvenile, in 2001, Tubbs was adjudicated a delinquent child for misdemeanor offenses of disorderly conduct and battery. Id. As an adult, he has had three misdemeanor convictions for possession of marijuana and two Level 6 felony convictions for possession of methamphetamine in 2007 and 2019. Id. In addition to his drug-related offenses, Tubbs also has a felony conviction for attempted robbery in 2007 and a felony conviction for theft in 2010. Id. Tubbs's history of criminal offenses not only demonstrates that he is an habitual offender, but also that he has failed to abide by the law despite being afforded the opportunities to reform his behavior through community corrections, incarceration, and probations. In fact, when Tubbs committed the instant offense, he was on probation after being convicted of possession of methamphetamine only five months earlier in January 2019. Id. Tubbs's dealing in methamphetamine, despite being on probation for a similar offense, renders him “a threat to the general safety to the community.” See Heyen v. State, 936 N.E.2d 294 (Ind. Ct. App. 2011), trans. denied. Tubbs's history of substance abuse also reflects poorly on his character and is viewed as an aggravating factor. See Iddings v. State, 772 N.E.2d 1006, 1018 (Ind. Ct. App. 2002), trans denied. This is especially so because there was no record to show that Tubbs took any voluntary steps to overcome his substance abuse problem. He claimed that being on drugs had never affected his study and work. Appellant's Conf. App. Vol. II at 35. Such a statement did not indicate an appreciation of the detrimental effect of drugs; rather, it showed a lack of desire to stop using illegal drugs. The evidence does not depict Tubbs as someone who has otherwise exhibited virtuous character, and we defer to the trial court unless a defendant's character shows substantial virtuous traits or persistent examples of good character. See Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[15] We, therefore, conclude that Tubbs did not show that his twenty-year aggregate sentence is inappropriate in light of the nature of the offense and his character.

[16] Affirmed.

FOOTNOTES

1.   See Ind. Code § 35-48-4-1.1.

2.   See Ind. Code § 35-50-2-8.

Kirsch, Judge.

Najam, J., and Brown, J., concur.