MEMORANDUM DECISION
Jul 28 2015, 8:49 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before 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
Caroline B. Briggs Gregory F. Zoeller
Lafayette, Indiana Attorney General of Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael C. Pulley, July 28, 2015
Appellant-Defendant, Court of Appeals Case No.
79A02-1412-CR-852
v. Appeal from the Tippecanoe
Superior Court;
The Honorable Thomas H. Busch,
State of Indiana, Judge;
Appellee-Plaintiff. 79D02-1310-FA-16
May, Judge.
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[1] Michael C. Pulley appeals his sentence for Class B felony possession of
methamphetamine 1 and Class C felony possession of chemical reagents or
precursors with intent to manufacture controlled substances. 2 He asserts the
trial court erred in splitting his sentence between the Department of Correction
(DOC) and Community Corrections, instead of ordering him placed in
Community Corrections for the entire thirteen-year sentence. We affirm.
Facts and Procedural History
[2] Pulley moved to Indiana in mid-2013. Six to eight weeks later, he was arrested
with his brother, his sister-in-law, and his aunt for drug-related activities.
Pulley was charged with multiple offenses related to the manufacture,
possession, and dealing of methamphetamine. On June 18, 2014, Pulley agreed
to plead guilty to Class B felony possession of methamphetamine and Class C
felony possession of chemical reagents or precursors with intent to manufacture
controlled substances.
[3] Pulley prepared a sentencing memorandum stating he provided for his
dependents, he “participate[d] in regular parenting time,” (App. at 23), he has
“done well on bond,” (id. at 24), he has been employed since “the day after his
release in October 2013,” (id.), he wished his bond to be applied to the
1
Ind. Code § 35-48-4-6.1 (2006).
2
Ind. Code § 35-48-4-14.5 (2013).
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restitution order, he was involved with the drugs in question for only a short
period of time, and his prior criminal history consists of a single misdemeanor.
[4] Pulley maintained there were no aggravators. Pulley noted the legislature has
changed the enhancement regarding drug activity near a school from 1000 feet
to 500 feet. As he was 674 feet from the school, under the new legislation, the
enhancement would not apply. Although Pulley recognized the change in
legislation would not apply to him, he asked the court to note, when
sentencing, the change in legislative intent. Pulley requested all his sentence be
served in Community Corrections. The State requested Pulley serve some of
the sentence in DOC.
[5] Although substantially agreeing with the mitigators Pulley offered, the court did
note as an aggravator that a child was in the home and subsequently tested
positive for methamphetamine. The court reasoned Pulley could benefit from
the DOC’s “purposeful incarceration program.” 3 (Tr. at 39.) The court
sentenced him to eight years in DOC and five years in Community Corrections.
Discussion and Decision
[6] Pulley asserts he was deprived of due process because the trial court’s
sentencing decision was based on the incorrect assumption that there was a
3
Purposeful incarceration was explained by the court to be a “special unit within the prison where everybody
. . . is engaged in the process of overcoming their drug abuse. They work together as a community to help
each other to do that.” (Tr. at 39.)
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limit to how many years someone could be sentenced to Community
Corrections.
[7] “[A] defendant is entitled to be sentenced only on the basis of accurate
information. A sentence based on materially untrue assumptions violates due
process.” Gardner v. State, 270 Ind. 627, 638, 388 N.E.2d 513, 520 (1979) (citing
Townsend v. Burke, 334 U.S. 736 (1948)). “[T]he trial court has discretion to
impose any sentence within the minimum and maximum imposed by law,
which is supported by an adequate statement of reasons, based on accurate
information.” Brooks v. State, 555 N.E.2d 1348, 1350 (Ind. Ct. App. 1990).
[8] Pulley correctly notes no statute prohibits the court from placing a person in
community corrections for thirteen years. But such placement “is subject to the
availability of residential beds or home detention units in a community
corrections program.” Ind. Code § 35-38-2.6-3 (2006). The court’s statement –
that it had been informed by Community Corrections that “it’s not appropriate
to put people on Community Corrections for more than five years,” (Tr. at 41)
– was not a legal pronouncement but rather was a statement about availability
of the service in that community. As trial courts are in the best position to
know the feasibility and availability of such placements, Fonner v. State, 876
N.E.2d 340, 343 (Ind. Ct. App. 2007), we cannot say the court’s recognition of
such practical limitations violated Pulley’s due process.
[9] Furthermore, the court’s discussion of the sentence it imposed demonstrates
other reasons why the court thought Pulley would be better accommodated in
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DOC. For instance, “[r]elapse is a constant danger for people who have a, a
problem with drugs,” (Tr. at 39), and the purposeful incarceration program
within DOC was set up to deal with that danger. Pulley needed “treatment to
develop the skill, the knowledge and the social structure that [he] need[s] in
order to avoid relapse,” (id. at 38), but Pulley had not been able to give
treatment his “highest priority because of [his] work schedule.” (Id.)
[10] There had been a child in the home where Pulley manufactured
methamphetamine, and that child tested positive for methamphetamine.
Pulley’s participation with manufacturing methamphetamine was “not just one
day, one mistake, it went on for a period of time and before that [Pulley was]
using drugs pretty heavily for several years.” (Id.) The court noted Pulley’s
plea agreement did not “indicate that [Pulley] had a greater role than
[possession of drugs].” (Id. at 40.) As the court fully explained why Pulley
should serve part of his sentence in the DOC, we cannot find error. See Fonner,
876 N.E.2d at 344 (upholding trial court’s decision to deny Fonner’s request for
“supervised day reporting” given Fonner’s “continuous record of vehicle-
related misdemeanor and felony convictions over a fourteen-year period and
failure of a previous community corrections placement”).
[11] Finding no violation of due process or error in Pulley’s placement in the DOC,
we affirm.
[12] Affirmed.
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Robb, J., and Mathias, J., concur.
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