MEMORANDUM DECISION FILED
Aug 05 2016, 7:53 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
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
Stanley L. Campbell Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tony R. Brockway, August 5, 2016
Appellant-Defendant, Court of Appeals Case No.
02A04-1512-CR-2244
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D05-1504-F6-302
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A04-1512-CR-2244 | August 5, 2016 Page 1 of 5
[1] Tony Brockway appeals the sentence he received for Level 6 Felony Possession
of a Synthetic Drug.1 He asks us to revise his sentence. Finding his sentence
not inappropriate, we affirm.
Facts
[2] On April 6, 2015, a Fort Wayne police officer recognized Brockway, and knew
that he had an active warrant for a probation violation. The officer arrested
him, and, in a search incident to that arrest, found a baggie containing 3.5
grams of “Spice,” a synthetic drug. Brockway had a previous conviction for
possession of a synthetic drug in October 2014.
[3] On April 10, 2015, the State charged Brockway with possession of a synthetic
drug, which becomes a Level 6 felony if the defendant has a prior conviction for
the same offense. I.C. § 35-48-4-11.5(c). On April 27, 2015, Brockway was
accepted into the drug court program, after the trial court preliminarily entered
a guilty plea.
[4] Brockway began residing at the Freedom House on May 25, 2015, but was
unsuccessfully discharged one month later because he continued to do drugs
and failed to return to the facility. Brockway was then taken to the Potter’s
House rehabilitation facility on July 30, 2015, but left that facility and failed to
return by September 26, 2015. Brockway also failed to show up to a
1
Ind. Code § 35-48-4-11.5.
Court of Appeals of Indiana | Memorandum Decision 02A04-1512-CR-2244 | August 5, 2016 Page 2 of 5
compliance hearing on September 28, 2015. As a result, the trial court issued a
bench warrant for his arrest, revoked his drug court agreement, and scheduled
the case for the entry of a conviction and sentencing.
[5] The pre-sentence investigation report (PSI) used by the trial court detailed an
extensive criminal history, including significant involvement with illegal drugs.
At a November 17, 2015, sentencing hearing, the trial court found this history
to be an aggravating circumstance, but found Brockway’s guilty plea and
acceptance of responsibility to be mitigating circumstances. The trial court
sentenced Brockway to two years imprisonment. Brockway now appeals.
Discussion and Decision
[6] Brockway has one argument on appeal, namely, that his sentence is
inappropriate. Indiana Appellate Rule 7(B) provides, “The Court may revise a
sentence authorized by statute 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.” The principal role of such
review is to attempt to leaven the outliers, but not to achieve a perceived
“correct” sentence. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).
Sentencing is principally a discretionary function in which the trial court’s
judgment should receive considerable deference. Id. at 1222. The defendant
bears the burden of showing us that his sentence is inappropriate. Kennedy v.
State, 934 N.E.2d 779, 788 (Ind. Ct. App. 2010).
Court of Appeals of Indiana | Memorandum Decision 02A04-1512-CR-2244 | August 5, 2016 Page 3 of 5
[7] We initially note that Brockway pleaded guilty to a Level 6 felony, which
carries a sentence between six months and two and one-half years, with an
advisory sentence of one year. Ind. Code § 35-50-2-7. Thus, Brockway’s
sentence is above the advisory sentence, but below the maximum sentence.
[8] Turning to the nature of Brockway’s offense, Brockway was found in
possession of 3.5 grams of a synthetic drug while he was on probation for a
prior dealing offense. The record does not reveal anything else about the
circumstances of this possession of illegal drugs, and so Brockway has not
carried his burden of showing that the nature of his offense renders his two-year
sentence inappropriate.
[9] Turning to Brockway’s character, we find a young man experiencing many
difficulties with drugs and criminality. At twenty-four years of age, Brockway
has four juvenile delinquency adjudications, three adult misdemeanor
convictions, and two felony convictions. Among these are convictions for
possessing synthetic drugs, possessing cocaine, and dealing in synthetic drugs.
The PSI report also shows his involvement with alcohol, marijuana, heroin,
opiates, and Xanax. Moreover, Brockway has been given chances to reform:
the trial court initially admitted him into the drug court program, where he had
the opportunity to receive services from two rehabilitation facilities. He failed
to attend both services to their completion. While in the program, he amassed
five positive drug screens, two missed drug screens, and two diluted drug
screens. Like the trial court, we acknowledge Brockway’s guilty plea and
Court of Appeals of Indiana | Memorandum Decision 02A04-1512-CR-2244 | August 5, 2016 Page 4 of 5
acceptance of responsibility, but these are outweighed by his history of
misdeeds. We are not persuaded to revise his sentence.
[10] In short, neither the nature of Brockway’s offense, nor his character, satisfy the
burden of showing that his sentence is an outlier. His sentence is not
inappropriate.
[11] The judgment of the trial court is affirmed.
Vaidik, C.J., and Najam, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A04-1512-CR-2244 | August 5, 2016 Page 5 of 5