Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Aug 29 2014, 9:29 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
RONALD J. MOORE GREGORY F. ZOELLER
The Moore Law Firm, LLC Attorney General of Indiana
Richmond, Indiana
LYUBOV GORE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOHN PALATAS, )
)
Appellant-Defendant, )
)
vs. ) No. 89A05-1403-CR-134
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WAYNE CIRCUIT COURT
The Honorable David A. Kolger, Judge
Cause Nos. 89C01-1304-FA-12, 89C01-1312-FA-37
August 29, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
CASE SUMMARY
During the Spring of 2013, Appellant-Defendant John Palatas sold heroin on at least
four different occasions. On one of these occasions, Palatas sold more than three grams of
heroin, on another he sold the heroin within 1000 feet of a school property, and on another he
sold the heroin within 1000 feet of a youth program center. In addition, Palatas possessed 3.7
grams of marijuana at the time of his arrest, and a search of Palatas’s residence following his
arrest revealed that Palatas had a large sum of cash and 252.95 grams of heroin stored in his
residence. As a result of his criminal actions, Palatas was charged, under two separate cause
numbers, with numerous crimes. He subsequently pled guilty as charged and was sentenced
to an aggregate forty-five-year sentence. On appeal, Palatas contends that the trial court
abused its discretion in sentencing him and that his sentence is inappropriate. Finding no
abuse of discretion by the trial court and concluding that Palatas’s sentence is not
inappropriate, we affirm.
FACTS AND PROCEDURAL HISTORY
The factual basis entered during the January 28, 2014 guilty plea hearing outlines
Palatas’s relevant criminal actions. On March 23, 2013, Palatas knowingly or intentionally
delivered heroin to another person. On March 27, 2013, Palatas knowingly or intentionally
delivered heroin to another person, with said offense being committed in, on, or within 1000
feet of a school property, i.e., the Elizabeth Starr Academy. On March 28, 2013, Palatas
knowingly or intentionally delivered heroin to another person, with said offense being
committed in, on, or within 1000 feet of a youth program center, i.e., a Boys and Girls Club.
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On April 9, 2013, Palatas (1) possessed, with the intent to deliver, more than three grams of
heroin; (2) knowingly or intentionally maintained a building, structure, or other place that
was used one or more times for unlawfully keeping a controlled substance and/or items of
drug paraphernalia; and (3) knowingly or intentionally possessed marijuana.
As a result of Palatas’s actions, Appellee-Plaintiff the State of Indiana (the “State”)
subsequently charged Palatas with several criminal charges under two separate cause
numbers. Specifically, with respect to Palatas’s actions on March 23, 27, and 28, 2013, the
State charged Palatas under Cause Number 89C01-1312-FA-37 (“Cause No. FA-37”) with
one count of Class B felony dealing in a narcotic drug and two counts of Class A felony
dealing in a narcotic drug. With respect to Palatas’s actions on April 9, 2013, the State
charged Palatas under Cause Number 89C01-1304-FA-12 (“Cause No. FA-12”) with one
count of Class A felony dealing in a narcotic drug, one count of Class D felony maintaining a
common nuisance, and one count of Class A misdemeanor possession of marijuana.
On January 28, 2014, Palatas entered into a plea agreement under which he agreed to
plead guilty as charged. In exchange for Palatas’s plea, the State agreed that his sentence
imposed for each charge should be run concurrently to his sentences for the remaining
charges, including those charged under the separate cause number. On February 27, 2014,
the trial court accepted the plea agreement and sentenced Palatas to an aggravated forty-five-
year executed sentence. Because Cause No. FA-37 and Cause No. FA-12 were joined
together below when Palatas pled guilty and was sentenced, Cause No. FA-37 and Cause No.
FA-12 have been consolidated on appeal.
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DISCUSSION AND DECISION
Palatas challenges his sentence on appeal, claiming both that the trial court abused its
discretion in sentencing him and that his aggregate forty-five-year sentence is inappropriate
in light of the nature of his offenses and his character.1
I. Abuse of Discretion
Sentencing decisions 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), 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).
One way in which a trial court may abuse its discretion is failing to enter a
sentencing statement at all. Other examples include entering a sentencing
statement that explains reasons for imposing a sentence-including a finding of
aggravating and mitigating factors if any-but 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. Under those circumstances, remand for resentencing may
be the appropriate remedy if we cannot say with confidence that the trial court
would have imposed the same sentence had it properly considered reasons that
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Initially, we note that Palatas presents his argument on appeal in terms of a presumptive sentencing
scheme. However, we observe that Indiana’s sentencing scheme was amended effective April 25, 2005, to
incorporate advisory sentences rather than presumptive sentences and comply with the holdings in Blakely v.
Washington, 542 U.S. 296 (2004), and Smylie v. State, 823 N.E.2d 679 (Ind. 2005). The Indiana Supreme
Court has subsequently held that upon review of a defendant’s sentence, we apply the sentencing scheme in
effect at the time of the defendant’s offense. Upton v. State, 904 N.E.2d 700, 702 (Ind. Ct. App. 2009); see
also Robertson v. State, 871 N.E.2d 280, 286 (Ind. 2007) (“Although Robertson was sentenced after the
amendments to Indiana’s sentencing scheme, his offense occurred before the amendments were effective so the
pre-Blakely sentencing scheme applies to Robertson’s sentence.”). Here, Palatas committed the instant
offenses in March and April of 2013, well after the 2005 amendments to Indiana’s sentencing scheme took
effect. Consequently, the post-April 25, 2005 advisory sentencing scheme applies to Palatas’s convictions.
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enjoy support in the record.
Id. at 490-91. A single aggravating factor may support an enhanced sentence. Fugate v.
State, 608 N.E.2d 1370, 1374 (Ind. 1993).
A. Whether the Trial Court Erroneously Found Certain Aggravating Factors
Palatas claims that the trial court abused its discretion in imposing an enhanced
sentence because the trial court erroneously found certain factors to be aggravating during
sentencing.
1. Criminal History
Palatas argues that the trial court erroneously found his criminal history, which
includes four prior felony convictions, twenty-two prior misdemeanor convictions, two
probation revocations, and one unsuccessful probation termination, to be an aggravating
factor at sentencing. However, because Indiana Code section 35-38-1-7.1(a)(2) provides that
a person’s criminal history is a valid aggravating factor, we conclude that the trial court did
not err in considering Palatas’s criminal history to be an aggravating factor at sentencing.
2. Placement on Probation at the Time He Committed Instant Offenses
Palatas also argues that the trial court erred in finding the fact that he was on probation
at the time he committed the instant offenses to be an aggravating factor at sentencing. The
fact that a defendant committed a crime while on probation is a factor distinct from the
defendant’s criminal history and is a proper aggravating factor at sentencing. See Barber v.
State, 863 N.E.2d 1199, 1208 (Ind. Ct. App. 2007) (providing that the fact that the defendant
was on probation when he committed the underlying offense because the defendant was still
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serving a court-imposed sentence when he committed the criminal acts in question), trans.
denied. In making this argument, Palatas claims that the record does not support the trial
court’s determination that he was on probation when he committed the instant offenses. We
disagree.
Palatas admitted that the pre-sentence investigation report (“PSI”), which was
generated prior to sentencing, was accurate. The PSI indicates that Palatas was sentenced to
five years of probation in Montgomery County, Ohio on September 23, 2009. Palatas
committed the underlying offenses in March and April of 2013, less than five years after
Palatas was sentenced to five years of probation in Ohio. Further, Palatas points to no
evidence and nothing in the record indicates that Palatas was released early from the five-
year probationary term in Ohio. Accordingly, we conclude that the trial court did not err in
finding the fact that Palatas was on probation when he committed the instant offenses to be
an aggravating factor because the record sufficiently establishes that Palatas was on
probation in a case stemming from Ohio at the time he committed the underlying offenses.
3. Weight of Heroin Found in Palatas’s Home
In addition, Palatas argues that the trial court erred in finding the fact that 252.95
grams of heroin were recovered from his residence to be an aggravating factor at sentencing.
In making this argument, Palatas simply states that “[t]he quantity of drugs involved is an
inappropriate aggravator.” Appellant’s Br. p. 14. Palatas does not provide any citation to
relevant authority or any argument in support of this statement. However, even if we were to
assume that the trial court did err in considering this factor, we must still conclude that the
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trial court acted within its discretion in imposing an enhanced sentence because the existence
of a single aggravator may support an enhanced sentence. Fugate, 608 N.E.2d at 1374. The
trial court properly considered two other aggravating factors, i.e., Palatas’s criminal history
and the fact that he was on probation at the time he committed the instant offenses, and these
aggravating factors are sufficient to support Palatas’s enhanced sentence.
B. Whether the Trial Court Failed to Apply Proper Weight
to Certain Aggravating and Mitigating Factors
Palatas claims that the trial court abused its discretion in imposing enhanced
sentences. In making this claim, Palatas argues that the trial court applied improper
aggravating weight to his criminal history. He also argues that the trial court failed to give
proper mitigating weight to his guilty plea, his life history, and his remorse.
The Indiana Supreme Court has long held that a trial court is not required to weigh or
credit aggravating and mitigating factors the way an appellant suggests it should be weighed
or credited. Fugate, 608 N.E.2d at 1374. Further, because the trial court no longer has any
obligation to “weigh” aggravating and mitigating factors against each other when imposing a
sentence, unlike the pre-Blakely statutory regime, a trial court cannot now be said to have
abused its discretion in failing to “properly weigh” such factors. Anglemyer, 868 N.E.2d at
491. As such, the trial court did not abuse its discretion in this regard.
II. Appropriateness of Sentence
Indiana Appellate Rule 7(B) provides that “The Court may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, the Court finds
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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) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), 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).
In the instant matter, Palatas pled guilty to three counts of Class A felony dealing in a
narcotic drug, one count of Class B felony dealing in a narcotic drug, one count of Class D
felony maintaining a common nuisance, and one count of Class A misdemeanor possession
of marijuana. The record demonstrates that Palatas sold heroin on numerous occasions. On
one occasion, Palatas sold an amount of heroin weighing more than three grams. On two
other separate occasions, Palatas sold drugs within 1000 feet of both a school and a youth
program center. Law enforcement discovered 252.95 grams of heroin in Palatas’s residence
during a search of the residence following Palatas’s arrest. Law enforcement also recovered
over $10,000.00 in cash from Palatas’s residence. These facts support an inference that
Palatas was not a “small time” drug dealer as he claimed, but rather was heavily involved in
drug dealing.
With respect to Palatas’s character, the record demonstrates that Palatas has shown an
ongoing disregard for the laws of this State. Palatas’s criminal history includes four prior
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felony convictions, twenty-two prior misdemeanor convictions, two probation revocations,
and one unsuccessful probation termination because Palatas absconded. The prior
convictions include convictions relating to drug and alcohol use and theft. His criminal
history includes convictions arising from both Indiana and Ohio. The record indicates that
Palatas has failed to reform his criminal behavior despite routine leniency from the trial
court. In addition, Palatas’s criminal actions also appear to be escalating in seriousness.
Palatas has failed to prove that his aggregate forty-five-year sentence is inappropriate in light
of the nature of Palatas’s offenses and his character.
CONCLUSION
The trial court did not abuse its discretion in sentencing Palatas. In addition, Palatas
has failed to prove that his aggregate forty-five-year sentence is inappropriate in light of his
actions and his character.
The judgment of the trial court is affirmed.
BARNES, J., and BROWN, J., concur.
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