MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any May 29 2020, 10:51 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 ATTORNEY FOR APPELLEE
Donald C. Swanson Matthew B. MacKenzie
Haller & Colvin, P.C. Deputy Attorney General
Fort Wayne, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ted E. Geisleman, May 29, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-4
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D05-1712-F3-77
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Ted E. Geisleman (Geisleman), appeals the trial court’s
sentence following his guilty plea to dealing in cocaine, a Level 3 felony, Ind.
Code § 35-48-4-1(a)(2); three Counts of dealing in cocaine, Level 4 felonies, I.C.
§ 35-48-4-1(a)(1); dealing in a narcotic drug, a Level 5 felony, I.C. § 35-48-4-
1(a)(1); operating a motor vehicle after a lifetime suspension, a Level 5 felony,
I.C. § 9-30-10-17(a)(1); maintaining a common nuisance, a Level 6 felony, I.C.
§ 35-48-1-5(c); possession of marijuana, a Class B misdemeanor, I.C. § 35-48-4-
11(a)(1); and possession of paraphernalia, a Class C misdemeanor, I.C. § 35-48-
8.3(b)(1).
[2] We affirm.
ISSUES
[3] Geisleman presents two issues on appeal, which we restate as:
(1) Whether the trial court abused its discretion by failing to properly
recognize certain mitigating circumstances; and
(2) Whether Geisleman’s sentence is inappropriate in light of his character
and the nature of the offenses.
FACTS AND PROCEDURAL HISTORY
[4] During November and December 2017, Geisleman sold drugs on six different
occasions to a confidential informant. On December 28, 2017, as a result of
these undercover buys, the State filed an Information, charging Geisleman with
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a Level 3 felony dealing in cocaine; three Level 4 felonies dealing in cocaine; a
Level 5 felony dealing in a narcotic drug; a Level 5 felony operating a motor
vehicle after a lifetime suspension, a Level 6 felony maintaining a common
nuisance, a Class B misdemeanor possession of marijuana; and a Class C
misdemeanor possession of paraphernalia. On February 18, 2018, Geisleman
entered a plea agreement to all Counts, which provided him with an
opportunity to participate in a Drug Court diversion program.
[5] On September 23, 2019, the trial court terminated Geisleman from the
diversion program. On December 5, 2019, the trial court conducted a
sentencing hearing. During the hearing, Geisleman noted that he had made it
to the third phase of the program before “he completely fell apart and these new
offenses he had over in circuit court happened,” and that he did not “have a
whole lot to add other than” briefly referring, without identifying or explaining,
the application of certain mitigating factors that he had listed in two written
sentencing memoranda submitted to the trial court. (Transcript pp. 4-5). In its
review, the trial court identified two mitigating factors: (1) Geisleman’s guilty
plea, and (2) his expressed remorse. Contrary to his claim that he did not harm
the community, the trial court noted that he was selling drugs and therefore was
“poisoning members of our community.” (Tr. p. 7). The court further
observed Geisleman’s lengthy criminal history and the likelihood that he would
not respond positively to probation. Given that he was charged with a new
offense, the trial court stated that Geisleman’s attitude and character reveal that
he is likely to commit another crime. The trial court found as additional
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aggravating factors: (1) prior failed efforts at rehabilitation, and (2) the nature
and circumstances of the crimes. At the conclusion of the hearing, the trial
court imposed twelve years on the Level 3 felony; ten years each on the Level 4
felonies; five years each on the Level 5 and Level 6 felonies;180 days on the
Class B misdemeanor, and sixty days on the Class C misdemeanor, for a total
term of 57 years and 240 days. All Counts were ordered to be served
concurrently, resulting in a twelve-year sentence at the Department of
Correction.
[6] Geisleman now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
I. Mitigating Circumstances
[7] Geisleman contends that the trial court abused its discretion when it failed to
identify certain mitigating factors. So long as a sentence imposed by a trial
court is within the statutory range for the offense, it is subject to review only for
an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),
clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of the trial court’s
sentencing discretion occurs if its decision is clearly against the logic and effect
of the facts and circumstances before the court, or the reasonable, probable, and
actual deductions to be drawn therefrom. Id. A trial court abuses its discretion
when it fails to enter a sentencing statement at all, its stated reasons for
imposing sentence are not supported by the record, its sentencing statement
omits reasons that are clearly supported by the record and advanced for
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consideration, or its reasons for imposing sentence are improper as a matter of
law. Id. at 490-91.
[8] Geisleman now contends that the trial court abused its discretion when it failed
to properly recognize the mitigating circumstances proposed in the two written
sentencing memoranda he had submitted to the trial court prior to the
sentencing hearing. We remind Geisleman that “[i]t is the appellant’s duty to
provide the reviewing court with an adequate record for review.” Johnson v.
State, 747 N.E.2d 623, 627 (Ind. Ct. App. 2001). As such, Indiana Appellate
Rule 50(B)(1) provides that the appellant’s appendix “shall contain a table of
contents and copies of the following documents, if they exist: . . . (e) any record
material relied on in the brief unless the material is already included in the
transcript[.]” Geisleman did not include the two sentencing memoranda in his
appellate appendix.
[9] As Geisleman did not advance the mitigating factors for consideration on the
record but merely requested the trial court to consider the two memoranda that
had been filed, these documents are necessary for this court to evaluate
Geisleman’s claim. The record indicates that on February 17, 2020, the State
filed a motion for conforming appendix, informing this court that Geisleman’s
appendix did not include the two sentencing memoranda. Geisleman objected
to the State’s motion, asserting that he was only required to provide appendices
containing information from the record on appeal that are “necessary and
relevant to the issues on appeal,” and that he raised only two issues, “none of
which have to do with evidence presented at the hearing.” (Def. motion Feb.
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28, 2020). In response to the parties’ motions, we observed in our March 4,
2020 order, that “an Appellant who fails to include the materials necessary for
this [c]ourt’s review risks waiver of the affected issues or dismissal of the
appeal.” (Crt. Order March 4, 2020). Accordingly, as a result of failing to
provide the only portion of the record enumerating Geisleman’s proposed
mitigating circumstances, we are unable to consider his claim and we conclude
that he has waived appellate review. See, e.g., Nasser v. State, 727 N.E.2d 1105,
1110 (Ind. Ct. App. 2000) (finding that appellant waived sentencing argument
because he failed to include the pre-sentence report in the record).
II. Inappropriateness of Sentence
[10] Geisleman also requests that we independently review the appropriateness of
his sentence. “Even when a trial court imposes a sentence within its discretion,
the Indiana Constitution authorizes independent appellate review and revision
of this sentencing decision.” Hoak v. State, 113 N.E.3d 1209, 1209 (Ind. 2019).
Thus, we may alter a 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. Id. The principal role of such review
is to attempt to leaven the outliers. Cardwell v. State, 895 N.E.2d 1219, 1225
(Ind. 2008). The defendant bears the burden to persuade the reviewing court
that the sentence imposed is inappropriate. Robinson v. State, 91 N.E.3d 574,
577 (Ind. 2018).
[11] In considering the appropriateness of a sentence, we recognize the advisory
sentence is the starting point the Legislature selected as appropriate for the
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crime committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). Geisleman
was sentenced to a total term of 57 years and 240 days. This aggregate term is
composed of a bevy of concurrent sentences, not one of which was a maximum
sentence for its particular Level of offense. Specifically, the trial court ordered
all Counts to be served concurrently, resulting in a twelve-year sentence at the
Department of Correction. Geisleman now requests this court to decrease his
sentence to the minimum aggregate sentence of three years. We decline to do
so.
[12] With respect to the nature of the crimes, we do not turn a blind eye to “facts of
the incident that brought the defendant before” us or the “nature and
circumstances of the crime as well as the manner in which the crime is
committed.” Bethea v. State, 893 N.E.2d 1134, 1145 (Ind. 2013). Geisleman
flooded the community with illegal drugs and sold narcotics to a confidential
information for a profit on at least six different occasions. See Evans v. State, 725
N.E. 2d 850, 851 (Ind. 2000) (holding that purveyors of illegal drugs are “a
menace to society,” and as such acknowledged by the legislature by classifying
those offenses as serious felonies).
[13] Likewise, Geisleman’s character does not warrant a downward revision of his
sentence. A defendant’s willingness to continue committing crimes is relevant
for analysis of his character under Appellate Rule 7(B). Garcia v. State, 47 N.E.
3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied. Geisleman has a significant
criminal history spanning almost three decades, from 1990 to 2019, and
involving juvenile, misdemeanor, and felony offenses. His juvenile history
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included adjudications for, among others, possession of paraphernalia and
possession of marijuana; while his adult history includes charges for, among
others, burglary, battery, resisting law enforcement, and being a habitual traffic
violator. As the trial court noted during sentencing:
[Geisleman] had three adjudications as a juvenile with time in
the Wood Youth Center. [He] has been given short jail
sentences, intermediate jail sentences, and longer jail sentences.
[He] has been assessed fines and costs. [He] has been through
the Center for Non-Violence. [He] had time in the Department
of Correction. [He] has been on active adult probation. [He] had
home detention. [He] had the benefit of suspended sentences,
time through the Alcohol Abuse Deterrent Program. [He] has
been on parole. [He] has been through Criminal Division
Services. [He] had multiple attempts at substance abuse
treatment through the system, and ultimately, the Drug Court
Program.
(Tr. p. 8). He repeatedly failed to take advantage of rehabilitative programs,
and he did not respond positively to probation. While participating in the Drug
Court program, Geisleman committed a new offense. Geisleman has not
shown that his character, as evidenced by his criminal history and probation
violations, warrants the minimum sentence that he requested. Therefore, in
light of the facts before us, we conclude that trial court’s imposed sentence is
not inappropriate.
CONCLUSIONS
[14] Based on the foregoing, we hold that Geisleman’s sentence is not inappropriate
in light of the offense and his character.
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[15] Affirmed.
[16] Mathias, J. and Tavitas, J. concur
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