MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 05 2016, 8:43 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony S. Churchward Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Thomas A. Conway, April 5, 2016
Appellant-Defendant, Court of Appeals Case No.
92A03-1510-CR-1676
v. Appeal from the Whitley Superior
Court
State of Indiana, The Honorable Douglas M. Fahl,
Appellee-Plaintiff. Judge
Trial Court Cause No.
92D01-1501-F6-51 & 92D01-1408-
CM-422
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Thomas A. Conway (Conway), appeals his sentence
following his conviction for Count I, possession of paraphernalia, a Class A
misdemeanor, Ind. Code § 35-48-4-8.3(a)(1); Count II, possession of a narcotic
drug, a Level 6 felony, I.C. § 35-48-4-6(a); Count III, unlawful possession of a
syringe, a Level 6 felony, I.C. §§ 16-42-19-18, -27; and Count IV, possession of
a controlled substance, a Class A misdemeanor, I.C. § 35-48-4-7(a).
[2] We affirm.
ISSUE
[3] Conway raises one issue on appeal, which we restate as follows: Whether
Conway’s sentence is inappropriate based on the nature of the offense and his
character.
FACTS AND PROCEDURAL HISTORY
[4] On the morning of January 23, 2015, Officer Jonathon Stoffel (Officer Stoffel)
of the Columbia City Police Department was patrolling along U.S. Highway 30
in Whitley County, Indiana. At approximately 3:30 a.m., Officer Stoffel
initiated a traffic stop of a Pontiac sedan after his radar unit indicated that the
vehicle was traveling seventy-three miles per hour in a sixty miles per hour
zone. As Officer Stoffel approached the vehicle, he observed five occupants,
which prompted him to call for back-up. Officer Stoffel requested identification
from the driver and all four passengers and returned to his squad car in order to
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verify the occupants’ information. He discovered that one of the passengers,
Conway, had an active arrest warrant in Kosciusko County.
[5] By this time, Officer Timothy Pittenger (Officer Pittenger) of the Columbia City
Police Department and Sergeant Todd Cook (Sergeant Cook) of the Whitley
County Sheriff’s Department had arrived to assist with the traffic stop. Due to
the warrant, Sergeant Cook placed Conway under arrest and transferred him to
his squad car. After it was determined that the vehicle would have to be towed
because none of the occupants produced a valid driver’s license, Officer
Pittenger conducted an inventory search. Officer Pittenger discovered a Marvel
Avengers-themed metal box on the floor behind the driver’s seat, and Conway
had been sitting directly behind the driver at the time of the stop. 1 Inside the
box were three silver spoons covered in blue residue, which tested positive for
Oxycodone; four hypodermic needles; a gum wrapper containing a white,
powdery substance, which field tested positive for methamphetamine; and two
pills, which were later identified as Oxycodone. It was subsequently
determined that the white substance was heroin, not methamphetamine.
Although Conway denied any knowledge of the box or its contents, two of the
other passengers stated that the box belonged to Conway.
1
Although Conway was not driving at the time of the traffic stop, the vehicle belonged to Conway’s
girlfriend. Shortly before Officer Stoffel initiated the stop, Conway had been driving the vehicle and stopped
at a gas station where they exchanged drivers.
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[6] Later that day, the State filed an Information, which it amended on August 19,
2015, charging Conway with Count I, possession of paraphernalia, a Class A
misdemeanor; Count II, possession of a narcotic drug, a Level 6 felony; Count
III, unlawful possession of a syringe, a Level 6 felony; and Count IV,
possession of a controlled substance, a Class A misdemeanor. On August 19,
2015, the trial court conducted a jury trial. At the close of the evidence, the jury
returned a guilty verdict on all Counts.
[7] On September 14, 2015, the trial court held a sentencing hearing. The trial
court sentenced Conway to serve one year each on Counts I and IV, fully
executed; and two and one-half years each on Counts II and III, with six
months of each sentence suspended to probation. The trial court ordered that
each of the sentences on the four Counts run concurrently, for an aggregate
term of two and one-half years.
[8] Conway now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[9] Conway claims that his sentence is inappropriate. The trial court imposed a
sentence of two and one-half years, the statutory maximum, for both of
Conway’s Level 6 felonies, as well as maximum sentences of one year for each
of the two Class A misdemeanors. See I.C. §§ 35-50-2-7(b), -3-2. The
concurrent terms resulted in an aggregate sentence of two and one-half years, of
which six months was suspended to probation. Sentencing is primarily a
discretionary function of the trial court and, as such, “the trial court’s judgment
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should receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219,
1222 (Ind. 2008). Nevertheless, even where the trial court has imposed a
sentence that is authorized by law, our court may revise the sentence 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.” Ind. Appellate Rule 7(B).
[10] The “principal role” of sentence review under Appellate Rule 7(B) “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, 895 N.E.2d at
1225. Ultimately, “whether we regard a sentence as appropriate at the end of
the day turns on our sense of 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.” Id. at 1224. Although “‘reasonable minds may differ’ on the
appropriateness of a sentence[,]” our review focuses on “the length of the
aggregate sentence and how it is to be served.” Parks v. State, 22 N.E.3d 552,
555 (Ind. 2014) (quoting Buchanan v. State, 767 N.E.2d 967, 970 (Ind. 2002));
Cardwell, 895 N.E.2d at 1224. “The question under Appellate Rule 7(B) is not
whether another sentence is more appropriate; rather, the question is whether
the sentence imposed is inappropriate.” Helsley v. State, 43 N.E.3d 225, 228
(Ind. 2015). Conway bears the burden of proving that his sentence is
inappropriate. Gleason v. State, 965 N.E.2d 702, 712 (Ind. Ct. App. 2012) (citing
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).
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[11] Turning first to the nature of the offense, the evidence establishes that Conway
was found in possession of a metal box, the contents of which included: three
silver spoons covered with the residue of Oxycodone pills, 0.07 grams of
heroin, two tablets of Oxycodone weighing 0.10 grams each, and four syringes.
Conway contends that “[t]here was no evidence submitted that he was engaged
in dealing these drugs and the relative small amounts signify personal use.”
(Appellant’s Br. p. 13). We agree that the evidence does not indicate that
Conway intended to deal the drugs found in his possession, which is precisely
why he was charged with lower-level possession crimes and was sentenced
accordingly.
[12] As to the nature of the offender, Conway argues that his sentence merits
revision because his criminal history consists of only non-violent offenses, most
of which were related to substance abuse. 2 While Conway is technically correct
about the types of crimes he committed, we find that his criminal history is
extensive. Between 1996 and 2014, Conway was convicted of at least ten
misdemeanors, including: minor consuming alcohol, driving while suspended,
disorderly conduct, possession of paraphernalia (three times), operating while
2
For these same reasons, Conway also cursorily asserts that, while it was proper for the trial court to
consider his criminal history as an aggravating circumstance, “it should not have given it so much weight.”
(Appellant’s Br. p. 12). A defendant’s criminal history is a valid aggravating factor that a trial court may
consider in determining a proper sentence. I.C. § 35-38-1-7.1(a)(2). Moreover, it is well established that “a
trial court can not . . . be said to have abused its discretion [by] failing to ‘properly weigh’ [aggravating and
mitigating] factors.” Anglemyer v. State, 868 N.E.2d 482, 491, clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
Here, because the trial court issued a sentencing statement, which identified several aggravating
circumstances that are supported by the record and found no mitigating factors, the trial court acted within its
sentencing discretion. Id. at 490-91.
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intoxicated (controlled substance), restriction of sale of ephedrine, giving a false
name, and conversion. During this time, he was also convicted of at least six
felonies, including: possession of precursors (two times), neglect of a
dependent, manufacturing methamphetamine, and possession of a controlled
substance (two times). Also, Conway was convicted of possession of a
controlled substance in Alabama, but it is unclear whether this was a felony or
misdemeanor conviction. Furthermore, at the time he committed the present
offenses, Conway was on both parole and probation.
[13] In addition, it is clear that Conway suffers from a substance abuse problem. He
started using marijuana when he was nineteen years old, and by age twenty-
four, he had tried cocaine and was “hooked” on methamphetamine.
(Appellant’s Conf. App. p. 208). In 2014, Conway began using heroin, “along
with whatever ‘pill’ he could get.” (Appellant’s Conf. App. p. 208). As noted
by the trial court, Conway had previously been given “several opportunities to
seek help with regard to alcohol and substance abuse.” (Tr. p. 174). While
incarcerated, Conway completed substance abuse education programs in
Whitley and Kosciusko Counties, as well as a therapeutic program through the
Kentucky Department of Correction.
[14] Conway’s staggering criminal record and other illegal activities—i.e., illicit drug
use—evidence his refusal to lead a law-abiding life. Despite the fact that he has
received lenient sentences in the past, including suspended sentences, fines, and
probation, none of these measures were sufficient to deter him from committing
the present offenses. Likewise, prior efforts at rehabilitation have been
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insufficient to prevent Conway from relapsing and committing additional drug-
related and other offenses. Accordingly, we decline to exercise our authority
under Appellate Rule 7(B) to revise Conway’s aggregate two and one-half year
sentence.
CONCLUSION
[15] Based on the foregoing, we conclude that Conway’s sentence is not
inappropriate.
[16] Affirmed.
[17] Najam, J. and May, J. concur
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