MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 03 2020, 8:42 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
Victoria Bailey Casanova Curtis T. Hill, Jr.
Casanova Legal Services, LLC Attorney General of Indiana
Indianapolis, Indiana Catherine E. Brizzi
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Matthew Powell, December 3, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-1371
v. Appeal from the
Fayette Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Hubert Branstetter, Jr., Special
Judge
Trial Court Cause No.
21D01-1904-F3-278
Kirsch, Judge.
[1] After Matthew Powell (“Powell”) entered an open plea agreement with the
State, the trial court sentenced him to eight years for Level 4 felony dealing in
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methamphetamine 1 and enhanced that sentence by seven years because of
Powell’s habitual offender status,2 yielding an aggregate sentence of fifteen
years. Powell raises two issues on appeal, which we restate as:
I. Whether the trial court abused its discretion by failing to cite
Powell’s guilty plea as a mitigating factor; and
II. Whether Powell’s fifteen-year aggregate sentence is
inappropriate considering the nature of his offense and his
character.
[2] We affirm.
Facts and Procedural History
[3] On April 15, 2019, an officer observed Powell driving away from a residence.
Appellant’s App. Vol. II at 41. The officer was aware that Powell was an habitual
traffic offender, so he alerted other patrol units of Powell’s location and vehicle
description. Id. Officers located Powell and conducted a traffic stop; they
searched Powell and his vehicle. Id. Officers located a plastic medication
container that held two Suboxone pills and 1.5 grams of methamphetamine in
Powell’s coat pocket. Id. Powell stated, “[T]hat meth isn’t mine. I just picked
it up and was taking it to somebody.” Id. Officers also found a plastic bottle
1
See Ind. Code § 35-48-4-1.1(a)(2).
2
See Ind. Code § 35-50-2-8(i)(1).
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that contained nineteen empty niacin capsules, which they believed were used
to store and transport drugs. Id.
[4] On April 16, 2019, the State charged Powell with Level 4 felony dealing in
methamphetamine, Level 6 felony possession of methamphetamine, Level 5
felony operating a motor vehicle after forfeiture of license for life, and Class A
misdemeanor possession of a controlled substance. Appellant’s App. Vol. II at 36.
On April 26, 2019, the State amended the information to allege that Powell was
an habitual offender. Id. at 16. Powell had charges pending in two other cases
under cause number 21C01-1707-F5-546 (“Cause 546”) and cause number
21C01-1511-F5-893 (“Cause 893”). Appellant’s Conf. App. Vol. II at 53. Under
Cause 546, Powell had pending charges for Level 5 felony possession of
methamphetamine, Level 6 felony maintaining a common nuisance, Class C
misdemeanor possession of paraphernalia, and an alleged habitual offender
status. Id. Under Cause 893, Powell had pending charges for aiding, inducing,
or causing dealing in a narcotic drug and an alleged habitual offender status.
Id.
[5] Powell entered a plea agreement that called for him to plead guilty to Level 4
felony dealing in methamphetamine and to being an habitual offender and, in
turn, the State would dismiss Powell’s charges for Level 6 felony possession of
methamphetamine, Level 5 felony operating a motor vehicle after forfeiture of
license for life, and Class A misdemeanor possession of a controlled substance.
Appellant’s App. Vol. II at 47. Under the agreement, Powell also pleaded guilty
to possession of methamphetamine under Cause 546 and aiding, inducing, or
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causing dealing in a narcotic drug under Cause 893. Id. Thus, the State agreed
to dismiss the remaining charges in Cause 546 for Level 6 felony maintaining a
common nuisance, Class C misdemeanor possession of paraphernalia, and the
alleged habitual offender status and to dismiss the habitual offender charge in
Cause 893. Id. The plea agreement left the sentence to the trial court’s
discretion. Id.
[6] The trial court accepted the plea agreement. Tr. Vol. II at 26. It imposed an
eight-year sentence for Level 4 dealing in methamphetamine and enhanced the
sentence by seven years because of Powell’s habitual offender status, all to be
served in the Indiana Department of Correction (“DOC”). Id. at 26-27. The
trial court found Powell’s criminal record as an aggravating factor, noting that
he had “at least 15 prior convictions.” Id. at 26. It found no mitigating factors.
Id. Powell now appeals. We will provide additional facts as necessary.
Discussion and Decision
I. Abuse of Discretion
[7] Powell claims the trial court abused its discretion in failing to cite his guilty plea
as a mitigating factor. Sentencing is left to the discretion of the trial court, and
an appellate court reviews its decisions only for an abuse of that discretion.
Singh v. State, 40 N.E.3d 981, 987 (Ind. Ct. App. 2015), trans. denied. An abuse
of discretion occurs if the decision is clearly against the logic and effect of the
facts and circumstances before the trial court. Id. The finding of mitigating
circumstances falls within the trial court’s discretion. Anglemyer v. State, 868
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N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). The trial
court is not obligated to find a circumstance to be mitigating merely because it
is advanced by the defendant. Id. at 493. The trial court is also not required to
give the same weight to mitigating circumstances as does the defendant. Id. at
494.
[8] An allegation that the trial court failed to identify or find a mitigating factor
requires the defendant to show that the mitigating factor is both significant and
clearly supported by the evidence. Id. at 493. Further, if the trial court does not
find the existence of a mitigating factor, is it not obligated to explain why it has
found that the factor does not exist. Id. A trial court abuses its discretion only
if “the record does not support the reasons, or the sentencing statement omits
reasons that are clearly supported by the record and advanced for consideration,
or the reasons given are improper as a matter of law.” Baumholser v. State, 62
N.E.3d 411, 416 (Ind. Ct. App. 2016) (quoting Anglemyer, 868 N.E.2d at 490),
trans. denied.
[9] Powell is correct that as a general rule, a defendant who pleads guilty is entitled
to some mitigating weight for the guilty plea:
Our courts have long held that a defendant who pleads guilty
deserves to have some mitigating weight extended to the guilty
plea in return. A guilty plea demonstrates a defendant’s
acceptance of responsibility for the crime and at least partially
confirms the mitigating evidence regarding his character. Scheckel
v. State, 655 N.E.2d 506, 511 (Ind. 1995); see also Williams v. State,
430 N.E.2d 759, 764 (Ind.1982) (“[A] defendant who willingly
enters a plea of guilty has extended a substantial benefit to the
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state and deserves to have a substantial benefit extended to him
in return.”).
Cotto v. State, 829 N.E.2d 520, 525 (Ind. 2005) (some internal citations omitted).
[10] However, whether a trial court should cite a guilty plea as a mitigating factor
“is necessarily fact sensitive, and not every plea of guilty is a significant
mitigating circumstance that must be credited by a trial court.” Cherry v. State,
772 N.E.2d 433, 436-37 (Ind. Ct. App. 2002) (quoting Trueblood v. State, 715
N.E.2d 1242, 1257 (Ind. 1999)), trans. denied. “For example, a guilty plea may
not be significantly mitigating when it does not demonstrate the defendant’s
acceptance of responsibility, or when the defendant receives a substantial benefit in
return for the plea.” Smith v. State, 908 N.E.2d 1251, 1254 (Ind. Ct. App. 2009)
(quoting Anglemyer, 875 N.E.2d at 221) (emphasis added).
[11] Powell acknowledges that a guilty plea is not necessarily entitled to mitigating
weight if a defendant receives a substantial benefit from the guilty plea, but he
argues that he did not receive a substantial benefit from the guilty plea. First,
he contends that he received no benefit from the dismissal of the Level 6 felony
possession of methamphetamine charge because he could not have been
convicted of both possession of methamphetamine and dealing in
methamphetamine because the possession offense was a lesser included offense
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of the dealing charge.3 Powell then acknowledges that he received “some
limited benefit from the plea agreement” but contends this benefit was not
substantial, so the trial court abused its discretion in not citing his guilty plea as
a mitigating factor. Appellant’s Br. at 13.
[12] Here, Powell received a significant benefit from the guilty plea through the
dismissal of the charges for Level 5 felony operating a motor vehicle after
forfeiture of license for life and Class A misdemeanor possession of a controlled
substance. As Powell acknowledges, he could have received a sentence
between two years and eight years for Level 5 felony operating a motor vehicle
after forfeiture of license for life. See Ind. Code § 35-50-2-6. He also admits that
he could have received a one-year sentence for Class A misdemeanor
possession of a controlled substance. See Ind. Code § 35-50-3-2. What Powell
fails to acknowledge is that the plea agreement dismissed charges in Cause 546
and Cause 893, including charges for Level 6 felony maintaining a common
nuisance and Class C misdemeanor possession of paraphernalia. Appellant’s
App. Vol. II at 47. Thus, Powell received a substantial benefit from the plea
agreement. Accordingly, the trial court did not abuse its discretion in failing to
cite Powell’s guilty plea as a mitigating factor.
3
We will assume without deciding that the possession charge was a lesser included offense of the dealing
charge and that the trial court could not have entered judgment of conviction on both offenses.
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II. Inappropriate Sentence
[13] Powell argues that his sentence is inappropriate considering the nature of his
offenses and his character. Under Indiana Appellate Rule 7(B), we may revise
a sentence if, after due consideration of the trial court’s decision, we find the
sentence is inappropriate considering the nature of the offense and the character
of the offender. Anglemyer, 868 N.E.2d at 491. The nature of offense compares
the defendant’s actions with the required showing to sustain a conviction under
the charged offense, Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008), while
the character of the offender permits for a broader consideration of the
defendant’s character. Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App.
2013), trans. denied. Whether a sentence is inappropriate turns on our sense of
the culpability of the defendant, the severity of the crime, the damage done to
others, and other factors that come to light in a given case. Cardwell, 895
N.E.2d at 1224.
[14] 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 appellant’s sentence is inappropriate, not whether
some other sentence would be more appropriate. Conley v. State, 972 N.E.2d
864, 876 (Ind. 2012). “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
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character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). When we
review a sentence, we seek to leaven the outliers, not to achieve a perceived
correct result. Cardwell, 895 N.E.2d at 1225.
Nature of Offense
[15] Powell argues that his fifteen-year aggregate sentence is inappropriate because
he contends “nothing about this offense is remarkable” or merits imposing two
years more than the advisory sentence for a Level 4 felony. Appellant’s Br. at 15-
16. When considering the nature of the offense, the advisory sentence is the
starting point in our analysis. Holloway v. State, 950 N.E.2d 803, 806 (Ind. Ct.
App. 2011); Anglemyer, 868 N.E.2d at 494. A Level 4 felony carries an advisory
sentence of six years, with a range of two to twelve years. Ind. Code § 35-50-2-
5.5. An habitual offender enhancement for a person convicted for a Level 4
felony ranges between six and twenty years. Ind. Code § 35-50-2-8(i)(1).
[16] The nature of the offense is found in the details and circumstances of the
commission of the offense. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017).
The nature of the offense refers to a defendant’s actions in comparison with the
elements of the offense. Cardwell, 895 N.E.2d at 1224. When determining
whether a sentence that exceeds the advisory sentence is inappropriate, “we
consider whether there is anything more or less egregious about the offense as
committed by the defendant that ‘makes it different from the typical offense
accounted for by the legislature when it set the advisory sentence.’” Moyer v.
State, 83 N.E.3d 136, 142 (Ind. Ct. App. 2017) (quoting Holloway, 950 N.E.2d
at 807), trans. denied.
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[17] Here, the nature of Powell’s sentence does not make his sentence inappropriate.
Powell decided to drive despite the fact that he was an habitual traffic offender
and had lost his license for life in 2003 after repeated incidents of operating a
vehicle while intoxicated and driving with a suspended license. Appellant’s Conf.
App. II at 58-59. Also, it appears Powell was out on bond when he committed
the instant offenses. See Tr. Vol. II at 17, 25-26. Moreover, regardless of the
seriousness of his crimes, Powell did not receive the maximum sentences. His
sentence for dealing in methamphetamine was only two years above the
advisory sentence, and his habitual offender enhancement was only one year
above the minimum possible enhancement. See Ind. Code § 35-50-2-5.5; Ind.
Code § 35-50-2-8(i)(1). Thus, Powell’s crime did not need to be especially
egregious to justify the fact that his sentence for Level 4 dealing in
methamphetamine was only two years above the advisory sentence. Powell’s
sentence was not inappropriate considering the nature of his offense.
Character of the Offender
[18] Powell cites a variety of factors in contending his fifteen-year aggregate
sentence is inappropriate considering his character. First, Powell admits that he
frequently uses illegal drugs, but he contends this does not reflect poorly on his
character because he is addicted to drugs. Since the age of fifteen, Powell has
used heroin and Dilaudid. Appellant’s App. Vol. II at 63. He also began using
alcohol at that age but quit consuming alcohol in 2009. Id. During the last five
years, Powell has used methamphetamine. Id. Powell explains that although
he had been incarcerated as a result of drug offenses previously, he had not
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received treatment for anything other than alcohol abuse. Tr. Vol. II at 11-12,
15. Powell states that he attempted to sign up for treatment programs in DOC’s
Purposeful Incarceration program during his most recent five-year
incarceration, but he never reached the top of the selection list because the trial
court had not issued an order recommending Powell’s placement in that
program. Id. at 12-13.
[19] Second, Powell acknowledges that he has an extensive criminal history, but he
contends this does not reflect poorly on his character because most of his
convictions were related to traffic offenses or crimes related to his substance
abuse. He argues that his lack of drug treatment during his thirty years of
substance abuse “renders his recidivism unsurprising.” Appellant’s Br. at 18.
Thus, he contends his criminal history should not reflect negatively on his
character.
[20] Third, Powell claims his medical problems should persuade us that his fifteen-
year aggregate sentence was inappropriate. His health problems include
depression and anxiety, diabetes, degenerative back disorder, hypertension, and
foot problems. Appellant’s Conf. App. Vol. II at 62. Since 1996, Powell has had
ten back surgeries and seventeen surgeries on his feet. Id.
[21] We reject Powell’s argument that his drug use and addiction do not reflect
poorly on his character. Powell started abusing alcohol and heroin when he
was fifteen years old and has been abusing drugs for thirty years. Appellant’s
Conf. App. Vol. II at 63. Although the court ordered Powell to participate in
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alcohol counseling in 2002, Powell never sought out treatment for his decades-
long addiction to heroin until he attempted to participate in the DOC’s
Purposeful Incarceration program at some point within the previous five years
Tr. Vol. II at 11-13.
[22] We next reject Powell’s efforts to minimize his criminal record by stating that
most of his convictions were for traffic offenses or offenses related to his
addiction. We first observe that many of his convictions were for other kinds of
offenses. These include convictions for robbery, theft, battery resulting in
bodily injury, criminal mischief, and false informing. Appellant’s Conf. App. Vol.
II at 56-60. Moreover, we reject Powell’s suggestion that convictions for traffic
offenses do not reflect poorly on his character. Four of his prior traffic related
convictions were for operating while intoxicated, an offense that endangers the
public. Id. at 57-59. While the record supports Powell’s contention that he
suffers from addictions to heroin and methamphetamine, he could have made
the prudent decision to not drive while under the influence of illegal drugs or
alcohol but chose to do so anyway. Powell’s other traffic-related convictions
include two convictions for operating while an habitual traffic violator and two
convictions for driving while suspended; such offenses show flagrant disregard
for the consequences of his prior convictions. Id. at 56-60. In total, Powell’s
thirty-five-year criminal history includes fifteen convictions (eight for felonies
and seven for misdemeanors), at least two revocations of probation, and
multiple arrests. Id. Powell’s criminal record does not speak well to his
character.
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[23] Finally, we reject Powell’s argument that his medical problems should persuade
us that his fifteen-year aggregate sentence was inappropriate. We are not
required to consider a defendant’s poor health to be a mitigating circumstance.
Henderson v. State, 848 N.E.2d 341, 345 (Ind. Ct. App. 2006). Furthermore,
Powell does not demonstrate or even allege a nexus between his medical
problems and his lengthy history of criminal misconduct. Thus, we conclude
that Powell’s sentence was not inappropriate considering his character. And
because we earlier found that Powell’s sentence was not inappropriate
considering the nature of his offense, we conclude that Powell is not entitled to
a sentence reduction pursuant to Indiana Appellate Rule 7(B).
[24] Affirmed.
Pyle, J., and Tavitas, J., concur.
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