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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DERICK W. STEELE GREGORY F. ZOELLER
Deputy Public Defender Attorney General of Indiana
Kokomo, Indiana
JOSEPH Y. HO
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DANIEL PETERS, )
)
Appellant-Defendant, )
)
vs. ) No. 34A02-1207-CR-569
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HOWARD SUPERIOR COURT
The Honorable William C. Menges, Jr., Judge
Cause No. 34D01-1009-FA-856
February 12, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issue
Daniel Peters pleaded guilty to possession of methamphetamine in excess of three
grams, a Class B felony, and was ultimately sentenced to fifteen years, all executed.
Peters appeals his sentence, arguing it is inappropriate in light of the nature of his offense
and his character. Concluding the sentence is not inappropriate, we affirm.
Facts and Procedural History
On two occasions in September 2010, Peters agreed with a confidential informant
to purchase the ingredients for and then teach the informant how to manufacture
methamphetamine in excess of three grams. The State charged Peters with conspiracy to
commit dealing in methamphetamine, a Class A felony; dealing in a schedule II
controlled substance, a Class B felony; and unlawful sale of legend drugs, a Class D
felony.
On April 27, 2011, Peters appeared in court and entered a plea of guilty to
possession of methamphetamine in excess of three grams, a Class B felony and a lesser-
included offense of the conspiracy to commit dealing in methamphetamine charge. The
“Recommendation of Plea Agreement” filed by the parties states:
The sentence shall be left to the discretion of the Court after
evidence and argument. Said sentencing shall be deferred during the
Defendant’s participation in the Howard County Drug Court Program.
Should the Defendant successfully complete the Howard County
Drug Court Program, this cause and all charges filed in it shall be
dismissed.
Should the Defendant fail the Howard County Drug Court Program,
this matter shall be set for sentencing with the term and conditions of that
sentence decided by the Court after evidence and arguments presented by
the parties.
If the Defendant fails the Howard County Drug Court Program, the
State of Indiana agrees to dismiss Counts 2 and 3 and agrees not to file
additional charges resulting from the same facts and/or circumstances.
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Appellant’s Appendix at 43. The trial court accepted Peters’s plea of guilty and deferred
sentencing to allow him to participate in the drug court program.
Throughout 2011 and into 2012, Peters appeared regularly in drug court for status
hearings. In early 2012, a notice of intent to terminate Peters from the drug court
program was filed with the trial court, alleging that he had failed to comply with the rules
of the program by: 1) having a confirmed positive urine drug screen; 2) being evicted
from the Kokomo Rescue Mission; 3) lying about his attendance at GED classes; and 4)
using a cell phone without authorization. See id. at 47, 48. Following a fact-finding
hearing, Peters’s participation in the drug court program was terminated. At the ensuing
sentencing hearing, the trial court, finding Peters’s prior criminal history and the fact he
violated probation by committing this offense were aggravating factors and finding no
mitigating factors, sentenced him to fifteen years at the Department of Correction.
Discussion and Decision
I. Standard of Review1
This court has the authority to revise a sentence “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.” Ind. Appellate Rule 7(B). In
assessing the nature of the offense and the character of the offender, we may look to any
factors appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct. App.
2007), trans. denied. The burden is on the defendant to persuade us that his sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
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Although Peters includes in his brief the standard for reviewing a sentence for an abuse of the trial
court’s discretion, his argument is directed only at the nature of his offense and his character, and we likewise
restrict our discussion to whether his sentence is inappropriate.
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II. Peters’s Sentence
Peters was convicted of a Class B felony, the sentence for which ranges from six
to twenty years with an advisory sentence of ten years. See Ind. Code § 35-50-2-5. The
trial court sentenced him to fifteen years.
As to the nature of his offense, Peters argues that his crime, while “not acceptable
under Indiana law,” Appellant’s Brief at 4, did not cause physical injury or pecuniary loss
and did not involve a victim. Although we agree the crime is not particularly heinous, as
it was an agreement to manufacture methamphetamine which did not come to fruition, we
do note that Peters was not only planning to manufacture approximately eight grams of
an illegal and insidious drug, he was also planning to teach someone else the
manufacturing process.
As to his character, Peters notes that he is thirty-two years old, that he developed a
substance abuse problem at an early age, and that his criminal history stems from his drug
dependency. The trial court found his criminal history to be an aggravating factor in
determining his sentence. The significance of a criminal history “varies based on the
gravity, nature and number of prior offenses as they relate to the current offense.”
Wooley v. State, 716 N.E.2d 919, 929 n.4 (Ind. 1999). Peters, at thirty-two years of age,
has accumulated six misdemeanor and four felony convictions. His most recent
convictions prior to this offense also involved drug activity. He has repeatedly failed to
comply with the conditions of probation and other opportunities for rehabilitation short of
incarceration. He also failed to obtain his GED as a condition of his probation in 1998,
which was again a condition of his participation in drug court for this arrest and which he
again failed to do. Peters may have a substance abuse problem which has led to poor
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decision-making, but he has demonstrated no interest in overcoming his addiction, as one
of the reasons he was terminated from the drug court program was his use of marijuana
nearly a year after entering the program. In short, we agree with the trial court that
Peters’s character as illuminated by his past actions and inactions warrants an enhanced
and executed sentence.
Conclusion
Given Peters’s criminal history and repeated disregard for rehabilitative
opportunities offered to him, we conclude that Peters has not demonstrated his fifteen-
year sentence is inappropriate in light of the nature of his offense and his character. The
trial court’s sentencing order is affirmed.
Affirmed.
MAY, J., and PYLE, J., concur.
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