MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 18 2018, 10:30 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy P. Broden Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana
Marjorie Lawyer-Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Davon Martell Ganier, April 18, 2018
Appellant-Defendant, Court of Appeals Case No.
79A05-1710-CR-2305
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Randy J. Williams
Appellee-Plaintiff Trial Court Cause No.
79D01-1611-F2-32
May, Judge.
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[1] Davon Martell Ganier appeals the trial court’s order he execute twelve years of
his eighteen-year sentence. He argues the amount of time ordered executed in
the Department of Correction is inappropriate. We affirm.
Facts and Procedural History
[2] On November 1, 2016, the State charged Ganier with seven counts stemming
from an investigation of heroin distribution at Flenard Milsap’s house: two
counts of Level 4 felony dealing in a narcotic drug 1 and one count each of Level
2 felony dealing in a narcotic drug; 2 Level 2 felony conspiracy to commit
dealing in a narcotic drug; 3 Class B misdemeanor possession of marijuana;
Level 3 felony dealing in a narcotic drug; 4 Level 4 felony possession of a
narcotic drug; 5 and Level 5 felony possession of a narcotic drug. 6 On July 26,
2017, Ganier accepted a plea agreement in which he pled guilty to the two
Level 2 felonies in exchange for the State’s dismissal of the remaining five
charges. The plea left sentencing to the trial court’s discretion.
1
Ind. Code § 35-48-4-1(c) (2014).
2
Ind. Code § 35-48-4-1(e) (2014).
3
Ind. Code § 35-41-5-2 (2014) (conspiracy); Ind. Code § 35-48-4-1(e) (2014).
4
Ind. Code § 35-48-4-1(d) (2014).
5
Ind. Code § 35-48-4-6(d) (2014).
6
Ind. Code § 35-48-4-6(b) (2014).
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[3] On September 12, 2017, the trial court held a sentencing hearing and sentenced
Ganier to eighteen years for each Level 2 felony, to be served concurrently.
The trial court ordered
the defendant shall execute twelve (12) years of said sentence
through the Indiana Department of Corrections [sic] followed by
three (3) years executed through Tippecanoe County Community
Corrections at a level to be determined by them. . . . [and] three
years of the sentences of imprisonment should be, and the same
hereby are, suspended and the defendant placed on supervised
probation.
(App. Vol. II at 15.)
Discussion and Decision
[4] Under Ind. Appellate Rule 7(B), we may revise a sentence if, after due
consideration of the trial court’s decision, we find the sentence inappropriate in
light of the nature of the offense and the character of the offender. Anglemyer v.
State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (2007).
We consider not only the aggravators and mitigators found by the trial court,
but also any other factors appearing in the record. Johnson v. State, 986 N.E.2d
852, 856 (Ind. Ct. App. 2013). We defer to the trial court’s decision, and our
goal is to determine whether the defendant’s sentence is inappropriate, not
whether some other sentence would be more appropriate. Conley v. State, 972
N.E.2d 864, 876 (Ind. 2012), reh’g denied. Ganier, as the appellant, bears the
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burden of demonstrating his sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
[5] Ganier “does not challenge the aggregate length of the sentence imposed, but
rather the trial court’s decision to order a majority of the sentence to be
executed in the Department of Correction.” (Br. of Appellant at 5.) “The place
that a sentence is to be served is an appropriate focus for application of our
review and revise authority.” Biddinger v. State, 868 N.E.2d 407, 414 (Ind.
2007). However, it is “quite difficult for a defendant to prevail on a claim that
the placement of his or her sentence is inappropriate.” Fonner v. State, 876
N.E.2d 340, 343 (Ind. Ct. App. 2007). As we explained in Fonner:
As a practical matter, trial courts know the feasibility of
alternative placements in particular counties or communities.
For example, a trial court is aware of the availability, costs, and
entrance requirements of community corrections placements in a
specific locale. Additionally, 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. A
defendant challenging the placement of a sentence must convince
us that the given placement is itself inappropriate.
Id. at 343-4.
[6] When considering the nature of the offense, the advisory sentence is the starting
point for determining the appropriateness of a sentence. Anglemyer, 868 N.E.2d
at 494. The sentencing range for a Level 2 felony is ten to thirty years, with an
advisory sentence of seventeen and one-half years. Ind. Code § 35-50-2-4.5.
The trial court sentenced Ganier to eighteen years. The nature of Ganier’s
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crimes is unremarkable - he conspired with others to possess and sell heroin
between July 1 and October 25, 2016, and he possessed and sold heroin in the
presence of a child on October 25, 2016. 7
[7] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Johnson, 986 N.E.2d at 857. The significance of
criminal history varies based on the gravity, nature, and number of prior
offenses in relation to the current offense. Id. Ganier’s criminal history is
lengthy. He has multiple juvenile adjudications and adult misdemeanor
convictions. While those adult convictions are misdemeanors, there were four
pending petitions to revoke Ganier’s probation, and he was on probation for
two different offenses when he committed the crimes at issue in this case.
Ganier reported he used drugs daily and has defied the separate trial court
orders requiring him to engage in substance abuse treatment. At the sentencing
hearing, Ganier’s counsel asked him on direct examination, “if you were given
probation today and you were let out without any supervision, you’re going to
relapse, you’re going to be in trouble, you’re going to be back here, do you
agree with that?” (Tr. Vol. II at 43.) Ganier answered, “Yes.” (Id.)
[8] Based on the nature of his crime and Ganier’s character, we are unconvinced
his placement in the Department of Correction for twelve years is
7
Ganier also argues, regarding the nature of his offense, “he was raised without the benefit of a father and
was recruited to commit the instant offenses by an individual whom he viewed as his uncle.” (Br. of
Appellant at 7.) We find this argument unpersuasive considering Ganier’s escalating criminal history and
failure to rehabilitate.
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inappropriate. His criminal history alone demonstrates his inability to
rehabilitate his behavior when given less restrictive supervision. See Fonner, 876
N.E.2d at 344 (placement in the Department of Correction not inappropriate
when prior, less restrictive efforts at rehabilitation have been unsuccessful).
Conclusion
[9] We hold Ganier has not carried his burden of persuading us that the amount of
time ordered executed in the Department of Correction is inappropriate based
upon his character and the nature of the offenses he committed. Accordingly,
we affirm.
[10] Affirmed.
Riley, J., and Mathias, J., concur.
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