MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 27 2018, 10:38 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stanley L. Campbell Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Lee M. Stoy, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David W. Gilliam, June 27, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-310
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D05-1603-F5-67
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-310| June 27, 2018 Page 1 of 6
Case Summary and Issue
[1] David Gilliam pleaded guilty to three counts of dealing in cocaine, all Level 5
felonies, and one count of maintaining a common nuisance, a Level 6 felony.
The trial court sentenced Gilliam to an aggregate sentence of three years in the
Indiana Department of Correction. Gilliam appeals, raising the sole issue of
whether his sentence is inappropriate in light of the nature of his offenses and
his character. Concluding his sentence is not inappropriate, we affirm.
Facts and Procedural History
[2] In March of 2016, the State charged Gilliam with three counts of dealing in
cocaine, all Level 5 felonies, and one count of maintaining a common nuisance,
a Level 6 felony. In May, Gilliam pleaded guilty to all four counts. The trial
court took Gilliam’s plea under advisement and placed Gilliam in the Allen
County Drug Court program. Pursuant to his agreement to participate in the
program, if Gilliam completed his obligations, the State would dismiss all
charges.
[3] For over a year after his entry in the drug court program, Gilliam appeared to
be a successful participant. He consistently had negative drug screens,
participated in community service, attended all appointments, and paid all of
his fees. Gilliam had only a few minor violations for which he performed
additional community service. In December of 2017, the Allen County Drug
Court Case Manager filed a petition to terminate Gilliam from the drug court
Court of Appeals of Indiana | Memorandum Decision 18A-CR-310| June 27, 2018 Page 2 of 6
program for allegedly engaging in a drug transaction with a confidential
informant. Gilliam admitted to the violation.
[4] On January 4, 2018, the trial court entered judgment of conviction on all four
counts. The trial court sentenced Gilliam to three years for each conviction of
dealing in cocaine and two years for his conviction of maintaining a common
nuisance. The trial court ordered all counts to be served concurrently for an
aggregate sentence of three years. Gilliam now appeals.
Discussion and Decision
[5] The sole issue raised by Gilliam on appeal is whether his sentence is
inappropriate in light of the nature of the offense and his character. In support
of his argument, Gilliam points to his positive efforts in the drug court program,
the fact this was his first felony conviction, and the fact this was his first drug-
related conviction. Thus, Gilliam “believes that a conviction of one (1) year on
each of the Counts would have been an appropriate sentence.” Brief of
Appellant at 13.
[6] The Indiana Constitution grants this court the authority to review and revise a
lawfully imposed 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)
(implementing Ind. Const. Art. 7, § 6). In reviewing a sentence, our principal
role is to leaven the outliers rather than necessarily achieve what is perceived as
Court of Appeals of Indiana | Memorandum Decision 18A-CR-310| June 27, 2018 Page 3 of 6
the correct result. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “We do
not look to determine if the sentence was appropriate; instead we look to make
sure the sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876
(Ind. 2012). The defendant bears the burden to demonstrate the sentence is
inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on
reh’g, 875 N.E.2d 218.
[7] We first observe that “the advisory sentence is the starting point the Legislature
selected as appropriate for the crime committed.” Pierce v. State, 949 N.E.2d
349, 352 (Ind. 2011). The sentencing range for a Level 5 felony is between one
and six years, with an advisory sentence of three years. Ind. Code § 35-50-2-
6(b). Gilliam received the advisory sentence for each Level 5 felony. The
sentencing range for a Level 6 felony is between six months and two and one-
half years, with the advisory sentence being one year. Ind. Code § 35-50-2-7(b).
Gilliam received a two-year sentence for his Level 6 felony conviction of
maintaining a common nuisance. However, this above-advisory sentence runs
concurrent with his three-year term for dealing in cocaine. See Pierce v. State,
949 N.E.2d 349, 352 (Ind. 2011) (recognizing appellate review should focus on
the “forest”—the aggregate sentence—rather than the “trees”—consecutive or
concurrent, number of counts, or length of the sentence of any individual
count).
[8] Our review of the nature of the offenses does not reveal anything particularly
egregious. The probable cause affidavit reveals that on three separate occasions
Court of Appeals of Indiana | Memorandum Decision 18A-CR-310| June 27, 2018 Page 4 of 6
an undercover officer and confidential informant purchased cocaine from
Gilliam. For these crimes, Gilliam received the advisory sentence.
[9] Turning to Gilliam’s character, it is clear he has not led a law-abiding life.
Gilliam’s pre-sentence investigation report reveals seventeen misdemeanor
convictions and multiple juvenile adjudications. Although Gilliam has had no
drug-related convictions since 1980, his constant contacts with law enforcement
do not speak highly of his character. More significantly, we are troubled by the
fact Gilliam squandered an opportunity to have the charges against him
dismissed had he followed his obligations under the drug court program.
Gilliam’s inability to remedy his criminal behavior weighs heavily on his
character and, overall, we are unpersuaded his efforts in the drug court program
and criminal history require a reduction in his sentence.
[10] Although Gilliam “believes . . . one (1) year on each of the Counts would have
been an appropriate sentence[,]” Br. of Appellant at 13, it is not this court’s
duty to determine the “appropriate” sentence; our mandate is to determine
whether the given sentence is inappropriate. Conley, 972 N.E.2d at 876. In this
case, after reviewing the nature of the offenses and Gilliam’s character, we
conclude Gilliam’s sentence is not inappropriate.
Conclusion
[11] Gilliam’s sentence is not inappropriate in light of the nature of the offenses and
his character. The judgment of the trial court is therefore affirmed.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-310| June 27, 2018 Page 5 of 6
[12] Affirmed.
Najam, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-310| June 27, 2018 Page 6 of 6