MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 30 2020, 8:23 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Chad A. Montgomery Curtis T. Hill, Jr.
Montgomery Law Office Attorney General
Lafayette, Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Samuel J. Sendrow
Certified Legal Intern
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tristan Pinkston, September 30, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-982
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Randy J. Williams,
Appellee-Plaintiff Judge
Trial Court Cause No.
79D01-1908-F4-37
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-982| September 30, 2020 Page 1 of 5
Case Summary
[1] Tristan Pinkston pled guilty to level 4 felony dealing in methamphetamine and
was sentenced to seven years, with four years executed in the Indiana
Department of Correction (DOC), one year executed in community
corrections, and two years suspended to probation. On appeal, Pinkston argues
that his DOC placement is inappropriate in light of the nature of his offense and
his character. We affirm.
Facts and Procedural History
[2] According to the probable cause affidavit, which both parties have relied on in
their briefs, on August 22, 2019, Tippecanoe County Police Department officers
were dispatched to a home on a report of suspicious activity. A moped was
parked in front of the home. The officers determined that the moped’s
registered owner was Pinkston, who was wanted on an outstanding warrant.
The officers knocked on the door, and a woman answered. The officers saw
Pinkston inside and asked him to come outside, which he did. They arrested
him pursuant to the warrant, and he admitted that he had methamphetamine in
his pants pocket. The officers found a plastic baggie with 3.6 grams of
methamphetamine and a pipe used to consume controlled substances in
Pinkston’s pocket. Pinkston told the officers that he had come to the home to
pick up methamphetamine to sell.
[3] The State charged Pinkston with level 4 felony dealing in methamphetamine,
level 6 felony possession of methamphetamine, and class C misdemeanor
Court of Appeals of Indiana | Memorandum Decision 20A-CR-982| September 30, 2020 Page 2 of 5
possession of paraphernalia. In February 2020, Pinkston signed a plea
agreement, pursuant to which he agreed to plead guilty to the level 4 felony
charge in exchange for the dismissal of the remaining charges. The agreement
provided for an executed sentence of no less than four years, which could be
served in either the DOC or community corrections. The agreement further
provided that any sentence between four and seven years could be served in the
DOC or community corrections or on probation, and that any sentence above
seven years would be served on probation. In April 2020, the trial court
accepted Pinkston’s plea and sentenced him to seven years, with four years
executed in the DOC, one year executed in community corrections, and two
years suspended to probation. Pinkston now appeals his sentence.
Discussion and Decision
[4] Pinkston does not challenge the length of his sentence, but he does assert that
the trial court should have ordered him to serve the entire executed portion of
his sentence in community corrections. Article 7, Section 6 of the Indiana
Constitution authorizes this Court to conduct independent appellate review and
revision of sentences pursuant to Indiana Appellate Rule 7(B), which provides
that we “may revise a sentence authorized by statute if, after due consideration
of the trial court’s decision, [we find] that the sentence is inappropriate in light
Court of Appeals of Indiana | Memorandum Decision 20A-CR-982| September 30, 2020 Page 3 of 5
of the nature of the offense and the character of the offender.” 1 “The location
where a sentence is to be served is an appropriate focus for application of our
review and revise authority.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App.
2008). “[I]t will be quite difficult for a defendant to prevail on a claim that the
placement of his sentence is inappropriate. This is because 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.” Id. at 267-68
(citation omitted). “A defendant challenging the placement of a sentence must
convince us that the given placement is itself inappropriate.” Id. at 268.
[5] Our supreme court has explained,
“[S]entencing is principally a discretionary function in which the
trial court’s judgment should receive considerable deference.”
Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). Such
deference should prevail unless overcome by compelling
evidence portraying in a positive light the nature of the offense
(such as accompanied by restraint, regard, and lack of brutality)
and the defendant’s character (such as substantial virtuous traits
or persistent examples of good character).
Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
1
Citing McMahon v. State, 856 N.E.2d 743 (Ind. Ct. App. 2006), Pinkston asserts that we “must merge the
trial court’s finding of aggravators and mitigators under Ind. Code § 35-38-1-7.1 into the review for
inappropriateness under Ind. App. Rule 7(B).” Appellant’s Br. at 10. We disagree, for the reasons given in
Turkette v. State, No. 20A-CR-87, 2020 WL 4198371, at *4 n.5 (Ind. Ct. App. July 22, 2020), pet. for trans. filed
(Sept. 8, 2020).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-982| September 30, 2020 Page 4 of 5
[6] We agree with Pinkston that the nature of his offense was not especially
egregious, in that he was cooperative during his encounter with the police and
possessed a relatively modest amount of methamphetamine. See Ind. Code §
35-48-4-1.1(c) (dealing in methamphetamine is a level 4 felony if defendant
possesses with intent to deliver at least one but less than five grams of drug).
But Pinkston’s character leaves a lot to be desired: he was wanted on an
outstanding warrant when he was found with methamphetamine in his pocket;
at age twenty-eight, he has accumulated six misdemeanor convictions and
failed to appear in three of those proceedings; four of the convictions are for
operating a motor vehicle without ever receiving a license, which, as the trial
court noted, demonstrates “disdain for the law,” Tr. Vol. 2 at 37; he was found
to have violated probation, apparently by committing the current offense; he
has a lengthy history of using and abusing substances, including alcohol and
illegal drugs; and he has participated in substance-related programs and classes,
which obviously had no lasting effect. Given all this, we cannot say that
Pinkston has convinced us that his DOC placement is inappropriate.
Therefore, we affirm.
[7] Affirmed.
Robb, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-982| September 30, 2020 Page 5 of 5