Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
Sep 12 2012, 10:00 am
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata, CLERK
of the supreme court,
court of appeals and
collateral estoppel, or the law of the case. tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL W. REED GREGORY F. ZOELLER
Reed & Earhart P.C. Attorney General of Indiana
Warsaw, Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ROBERT LEE PICKENS, )
)
Appellant-Defendant, )
)
vs. ) No. 43A03-1112-CR-585
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE KOSCIUSKO CIRCUIT COURT
The Honorable Rex L. Reed, Judge
Cause No. 43C01-1102-FB-98
September 12, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Robert Lee Pickens (“Pickens”) was convicted after a jury trial of dealing in
methamphetamine1 as a Class B felony and was adjudicated a habitual offender.2 He was
sentenced to fifteen years for his Class B felony conviction enhanced by fifteen years for
his habitual offender adjudication for a total sentence of thirty years. Pickens appeals,
raising the following, restated issues:
I. Whether the trial court abused its discretion when it refused to
permit Pickens to plead guilty the day before his scheduled jury trial;
and
II. Whether his thirty-year sentence was inappropriate in light of the
nature of the offense and the character of the offender.
We affirm.
FACTS AND PROCEDURAL HISTORY
On February 13, 2011, Pickens contacted Dallas Deckys (“Deckys”), a
confidential informant for the Kosciusko County Drug Task Force, by phone and told her
that he had just finished manufacturing methamphetamine and wanted to sell her some.
He informed Deckys he had one gram for sale and that the cost was $80. Deckys
contacted Officer Paul Heaton (“Officer Heaton”) of the Warsaw Police Department to
tell him about the call she received from Pickens, and Officer Heaton advised Deckys to
make the drug buy. Later that day, Deckys met with Officer Heaton and Sergeant Don
McCune (“Sergeant McCune”) of the Kosciusko County Sheriff’s Department in the
parking lot of the Lake City Bank in Warsaw, Indiana. The officers searched Deckys and
1
See Ind. Code § 35-48-4-1.1.
2
See Ind. Code § 35-50-2-8.
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her minivan for illegal drugs and placed a recording transmitter in Deckys’s purse. The
officers gave Deckys two fifty-dollar bills, from which they had previously recorded the
serial numbers, to use to purchase the drugs. The officers then followed Deckys to a gas
station in Leesburg, Indiana, where she had arranged to meet Pickens.
When Deckys arrived at the gas station, Pickens was standing outside of a maroon
vehicle. Pickens got inside of Deckys’s minivan and handed her the methamphetamine in
a clear plastic bag; Deckys then gave him the two fifty-dollar bills. Deckys asked
Pickens how much the methamphetamine weighed, and he responded that it weighed one
gram. After hearing the drug transaction over the recording transmitter, the officers
moved in and arrested Pickens. During the arrest, the officers recovered one of the fifty-
dollar bills on the ground next to Pickens and the other one in Pickens’s front pants
pocket. The serial numbers on these fifty-dollar bills matched the bills provided to
Deckys prior to the drug transaction. Deckys gave the officers the plastic bag containing
the drugs, and it field-tested positive for methamphetamine. Later testing revealed that
the bag contained methamphetamine weighing .52 grams.
The State charged Pickens with dealing in methamphetamine as a Class B felony
and possession of methamphetamine as a Class D felony and filed a separate information
alleging an habitual offender enhancement. Prior to trial, the State dismissed the Class D
felony possession of methamphetamine charge. On the day before Pickens’s jury trial,
the State and Pickens tendered a proposed plea agreement, pursuant to which Pickens
would plead guilty to Class B felony dealing in methamphetamine and receive a six-year
executed sentence. During the plea hearing, Pickens expressed hesitancy about his plea,
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dissatisfaction with his attorney’s representation, indicated that he agreed to the plea after
learning that day about a tape of the drug transaction, and denied any involvement in the
crime. Tr. 3, 5, 7-8. After questioning Pickens, the trial court rejected the proposed plea
agreement, and Pickens proceeded to jury trial the next day. At the conclusion of the
two-day jury trial, Pickens was found guilty of Class B felony dealing in
methamphetamine, and Pickens admitted to being an habitual offender. The trial court
sentenced him to fifteen years for the Class B felony dealing in methamphetamine,
enhanced by fifteen years for the habitual offender adjudication, resulting in an aggregate
sentence of thirty years. Pickens now appeals.
DISCUSSION AND DECISION
I. Refusal of Plea Agreement
A defendant has no absolute right to have a guilty plea accepted, and a trial court
may reject a plea in the exercise of sound judicial discretion. Beeks v. State, 839 N.E.2d
1271, 1273 (Ind. Ct. App. 2005) (citing Snyder v. State, 500 N.E.2d 154, 157 (Ind.
1986)), trans. denied. “Indeed, a trial court has discretion in deciding whether to accept a
guilty plea, and we will reverse the trial court’s decision only when it has abused that
discretion.” Id. at 1274 (citing Webster v. State, 708 N.E.2d 610, 613 (Ind. Ct. App.
1999), trans. denied). An abuse of discretion occurs when the trial court’s decision is
clearly against the logic and effect of the facts and circumstances before the court.
Jennings v. State, 723 N.E.2d 970, 972 (Ind. Ct. App. 2000), trans. denied.
Pickens argues that the trial court abused its discretion when it rejected his
proposed plea agreement. He specifically contends that the trial court arbitrarily made
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this decision without reason and did not establish any legitimate basis for refusing to
accept the proposed plea agreement. Pickens further asserts that, although the trial court
stated it was concerned about Pickens’s dissatisfaction with his defense attorney, Pickens
had maintained his desire to plead guilty. He also alleges that the trial court failed to
tentatively accept and agree to consider the proposed plea agreement as required by
accepted practice and applicable statutes. He therefore claims that the trial court’s
arbitrary refusal to consider the proposed plea constituted an abuse of discretion.
Initially, Pickens’s argument that the trial court abused its discretion because it did
not “tentatively accept and agree to consider [the plea agreement] as required by accepted
practice and applicable statutes” fails because the trial court has discretion in whether or
not to accept or reject a plea agreement. Beeks, 839 N.E.2d at 1274. Pickens’s next
argument, which is that the trial court failed to establish a legitimate basis for rejecting
the proposed plea agreement, also fails because the trial court is not required to state a
reason on the record when it rejects a plea agreement. “The absence of specific reasons
for rejection [of a plea agreement] does not evidence, in Indiana, abuse of discretion.”
Meadows v. State, 428 N.E.2d 1232, 1235 (Ind. 1981) (holding that when trial court, after
complying with guilty plea statutes, and after taking evidence on factual basis for plea,
rejects plea bargain, we will presume that court has properly evaluated propriety of
accepting it).
In the present case, the record reflects the basis for rejection of the plea agreement.
When questioned by the trial court, Pickens expressed hesitancy about the plea
agreement, indicated that he entered into the plea agreement because he learned about
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incriminating evidence earlier the same day, and denied any involvement in the crime.
Tr. at 3, 7-8. The record shows that, instead of arbitrarily rejecting Pickens’s plea
agreement, the trial court engaged in the following discussion with Pickens, during which
Pickens expressed hesitancy about pleading guilty:
Trial Court: Mr. Pickens, just a few moments ago, I received a proposed
Plea Agreement by the terms of which it would appear to me
that you may wish to withdraw a previously entered plea of
not guilty to the offense of Dealing in Methamphetamine in
an Amount Less Than Three (3) Grams, a Class B felony, as
charged in Count I in this case and you propose to enter a plea
of guilty to that charge under the terms of this Plea
Agreement. Is that true, Mr. Pickens?
Pickens: Yes.
Trial Court: That’s a fairly reluctant yes. Is that your desire or not, Mr.
Pickens?
Pickens: Yes.
Trial Court: It is. Have you discussed doing this with your Counsel . . .?
Pickens: Vaguely.
Trial Court: Well, do you need more time? Do you want more time with
[defense counsel] to –
Pickens: I mean, I ask him questions, he don’t [sic] answer me.
Trial Court: Pardon me?
Pickens: I’ve asked him questions over and over but he doesn’t answer
me.
Id. at 2-3. The trial court then asked Pickens if he needed more time to discuss his
questions with his attorney, and Pickens declined the opportunity and stated that,
although he had discussed the case with his attorney, he had not had enough time to do
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so. Id. at 3-5. After further discussion about whether Pickens would like more time to
talk with his attorney about the case, Pickens told the trial court that he was not satisfied
with the manner in which his attorney had represented him. Id. at 7. The trial court then
engaged in the following exchange with Pickens:
Trial Court: . . . First of all, let the court ask you, what is it that you are
not satisfied with [your defense attorney] about in the fashion
in which he has represented you. What is it, Mr. Pickens, that
is troubling you, if anything?
Pickens: I was arrested on the 13th of February and this whole time
that I’ve been sitting here in this jail -- there was no tape of
no [sic] drug transaction.
Trial Court: I do not need to know that.
Pickens: I’m explaining to you. All of a sudden tomorrow is my trial
date for a two-day trial. All of a sudden, I get called out this
morning -- listen to this. And you hear some whispering on
there, (defendant making whispering noises) and then you
hear somebody say, half gram, which isn’t me.
Trial Court: Mr. Pickens, it seems to me like those are matters that the
Court probably ought to not hear. So, I believe, that probably
it would be appropriate then for this Court to not go forward
at this time. I don’t want you to plead guilty if that’s not your
desire, if you’re not, if you’re dissatisfied in some fashion or
other with your representation. So let’s, we’ll just call the
proceedings to a halt.
Id. at 7-8.
Even though the trial court mentioned Pickens’s dissatisfaction with his defense
attorney as a reason for rejecting his proposed plea agreement, Pickens’s comments
demonstrate that he was only entering into the plea agreement because he was confronted
by evidence that he clearly disputed. Further, his denial of his involvement in the crime
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likely meant that he would have difficulty establishing a sufficient factual basis for the
guilty plea. See D.A. v. State, 967 N.E.2d 59, 63 (Ind. Ct. App. 2012) (citing Ind. Code §
35-35-1-3) (“A court may not accept a guilty plea unless the court determines that a
sufficient factual basis exists to support the plea.”). Therefore, based on Pickens’s
statements and the thoughtful discussion in which the trial court engaged with him, we
conclude that the trial court did not abuse its discretion in rejecting Pickens’s proposed
plea agreement.
II. Inappropriate Sentence
Pickens argues that his aggregate thirty-year sentence was inappropriate in light of
the nature of the offense and the character of the offender. “This court has 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.’” Spitler v. State, 908 N.E.2d 694, 696 (Ind. Ct. App. 2009) (quoting Ind.
Appellate Rule 7(B)), trans. denied. Although Indiana Appellate Rule 7(B) does not
require us to be extremely deferential to a trial court’s sentencing decision, we still must
give due consideration to that decision. Delao v. State, 940 N.E.2d 849, 852-53 (Ind. Ct.
App. 2011) (citing Patterson v. State, 909 N.E.2d 1058, 1062–63 (Ind. Ct. App. 2009)),
trans. denied. We understand and recognize the unique perspective a trial court brings to
its sentencing decisions. Id. at 853. The defendant bears the burden of persuading this
court that his sentence is inappropriate. Id.
Initially, we note that it would be within our discretion to find that Pickens has
waived his inappropriateness argument by failing to make a cogent argument. See Ind.
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Appellate Rule 46(A)(8)(a). Pickens’s argument in support of finding his sentence to be
inappropriate focuses only on the nature of his offense, by arguing that he only sold a
small amount of methamphetamine to Deckys as a result of his relationship with her.
“But revision of a sentence under Indiana Appellate Rule 7(B) requires the appellant to
demonstrate that his sentence is inappropriate in light of both the nature of his offenses
and his character.” Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008). Pickens
does not raise any cogent argument as to the inappropriateness of his sentence in light of
his character.
Waiver notwithstanding, we conclude that Pickens’s thirty-year sentence was not
inappropriate. Although the circumstances of Pickens’s offense were unremarkable, his
character demonstrates that the sentence given was appropriate. Pickens has an extensive
adult criminal history that included nine felony convictions, several misdemeanor
convictions, and two prior habitual offender enhancements. His first encounter with law
enforcement was at the age of nine, and he was placed in the Indiana Boys School at the
age of fifteen. He has been given several opportunities in the past for both parole and
probation, which have been previously revoked, and he was on parole and probation at
the time he committed the current offense. Pickens has not met his burden of persuading
this court that his sentence was inappropriate in light of the nature of the offense and the
character of the offender.
Affirmed.
NAJAM, J., and MAY, J., concur.
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