NELSON v. STATE (2021)

MEMORANDUM DECISION

Statement of the Case

[1] Deangelo Nelson (“Nelson”) appeals the aggregate eight-year sentence imposed after he pled guilty to three counts of Level 5 felony dealing in a narcotic drug ¹ and admitted to being an habitual offender.² Nelson argues that his sentence is inappropriate. Concluding that his sentence is not inappropriate, we affirm Nelson's sentence.

[2] We affirm.

Issue

Whether Nelson's sentence is inappropriate.3

Facts

[3] On October 1, 2019, officers from the Vigo County Drug Task Force arranged a controlled purchase of narcotics from Nelson using a confidential informant (“the Informant”). On that date, the Informant drove to Nelson's home, and Nelson entered the passenger seat of the Informant's car. Thereafter, Nelson sold the Informant less than one gram of heroin and/or fentanyl. The officers arranged two more controlled buys from Nelson on October 7 and 23. The Informant drove to Nelson's home, wherein he received less than one gram of heroin and/or fentanyl on October 7 and more than two grams of heroin and/or fentanyl on October 23.

[4] On October 31, 2019, the State charged Nelson with three counts of Level 5 felony dealing in a narcotic drug, three counts of Level 6 felony possession of a narcotic drug, and Level 6 felony maintaining a common nuisance. The State also alleged that Nelson was an habitual offender. Pursuant to a plea agreement, Nelson pled guilty to the three dealing counts and admitted that he was an habitual offender. In exchange, the State dismissed the remaining charges. The parties also agreed to argue the sentence length with a cap of eight years.

[5] At the ensuing sentencing hearing, the trial court identified no mitigating factors. In aggravation, the trial court identified the following: (1) Nelson's criminal history, which includes a true finding as a juvenile for Class A misdemeanor resisting law enforcement and convictions as an adult for Level 6 felony failure to register as a sex offender, Level 6 felony failure of a sex offender to possess identification, Class D felony sexual battery, two Class A misdemeanor possession of marijuana convictions, and Class B misdemeanor possession of marijuana; and (2) Nelson had recently violated probation and conditions of his pre-trial release. The trial court sentenced Nelson to concurrent four (4) year sentences on each of the three dealing counts and enhanced the sentence by four (4) years for the habitual offender adjudication. The trial court ordered Nelson to serve his aggregate eight (8) year sentence in the Department of Correction, to be served on work release. Nelson now appeals.

Decision

[6] Nelson argues that his eight-year sentence is inappropriate. Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized by statute 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. The defendant bears the burden of persuading this Court that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a Rule 7(B) review “should be to attempt to leaven the outliers, and identify some guiding principles for trial courts and those charged with improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “Appellate Rule 7(B) analysis is not to determine whether another sentence is more appropriate but rather whether the sentence imposed is inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted), reh’g denied. Whether we regard a sentence as inappropriate turns on the “culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell, 895 N.E.2d at 1224.

[7] When determining whether a sentence is inappropriate, the advisory sentence is the starting point the General Assembly has selected as an appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081. Here, Nelson pled guilty to three counts of Level 5 felony dealing in a narcotic drug and admitted to being an habitual offender. The sentencing range for a Level 5 felony is “for a fixed term of between one (1) and six (6) years, with the advisory sentence being three (3) years.” I.C. § 35-50-2-6(b). A person found to be an habitual offender for a Level 5 felony may be sentenced to an additional fixed term that is between two (2) and six (6) years. I.C. § 35-50-2-8(i)(2). In accordance with the plea agreement sentencing cap, the trial court imposed concurrent four-year sentences for the Level 5 felonies and an additional four years for the habitual finding, for an aggregate eight-year sentence. In addition, the trial court allowed Nelson to serve his sentence on work release with the option of petitioning the court for placement in home detention after he completed five years of his sentence.

[8] Regarding the nature of the offense, this Court has recognized that 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). Here, the record shows that Nelson was dealing drugs in Vigo County. Nelson sold heroin and/or fentanyl to a confidential informant on three separate occasions. Given the well-established harm caused by opioids throughout Indiana, we find that Nelson's sentence is not inappropriate in light of the nature of his crimes.

[9] Turning to Nelson's character, he emphasizes that he had a difficult childhood and has “reached a point of self-realization that he did not have to become a victim of his circumstances.” (Nelson's Br. 12). As the trial court noted, however, Nelson has an extensive criminal history. Nelson has accumulated convictions for felony sexual battery, felony failure to register as a sex offender, felony failure of a sex offender to possess identification, and misdemeanor possession of a marijuana three times. Additionally, he has one true finding as a juvenile. In sum, Nelson's extensive criminal history reflects poorly on his character. See Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007) (any criminal history reflects poorly on a person's character). Furthermore, Nelson has been afforded leniency of probation by the judicial system in the past. However, he has shown an inability or unwillingness to conform his behavior to the rule of law.

[10] Accordingly, Nelson has not persuaded us that the nature of his offenses and character make his sentence inappropriate. Therefore, we affirm the sentence imposed by the trial court.

[11] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-48-4-1.

2.   I.C. § 35-50-2-8.

3.   In his brief, Nelson argues that the language in the plea agreement waiving his appellate rights should not apply because the trial court, without objection from either party, advised Nelson that he could still file an appeal. Because the State did not reply to Nelson's waiver argument in its brief, we take the State's silence as a concession on that issue. As a result, we address Nelson's substantive issue concerning the inappropriateness of his sentence.

Pyle, Judge.

Najam, J., and Tavitas, J., concur.