FILED
Feb 22 2012, 10:43 am
CLERK
of the supreme court,
court of appeals and
tax court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Antwon Abbott Gregory F. Zoeller
Bunker Hill, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 34S02-1202-CR-110
ANTWON ABBOTT,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
_________________________________
Appeal from the Howard Superior Court, No. 34D01-0909-FA-819
The Honorable William C. Menges, Jr., Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 34A02-1009-CR-1067
_________________________________
February 22, 2012
Rucker, Justice.
After a trial by jury thirty-year-old Antwon Leon Abbott was convicted of possession of
cocaine as a Class B felony for which he was sentenced to the maximum term of twenty years.
Based on the nature of the offense we revise Abbott’s sentence to twelve years.
Facts and Procedural History
The essential facts are these. In the early afternoon hours of September 8, 2009 Kokomo
police officer Gary Taylor – a member of the Drug Task force – planned to make a controlled
buy of narcotics at 436 South Indiana Street. As Officer Taylor headed in that direction he
observed a car in front of him – a black Oldsmobile with tinted windows. The car stopped at that
address for a short period. Someone came out of the house, went up to the car, went back into
the house, and the car drove off. Believing a drug transaction had occurred Officer Taylor
radioed canine Drug Task Force Officer Chad VanCamp and advised him to make a traffic stop.
Several blocks from 436 South Indiana Street, Officer VanCamp initiated a stop of the
black Oldsmobile on grounds of a “window tint” violation.1 See Appellant’s App. at 18. Abbott
was a passenger in the automobile. Both the driver and Abbott were ordered out of the car. A
subsequent search of Abbott revealed rolling papers, a plastic bag containing twenty-six other
smaller baggies, and a plastic baggie taped underneath his scrotum containing 1.15 grams of
cocaine and 5.17 grams of marijuana.
As it turns out, Officer VanCamp stopped the car within 1,000 feet of the Main Street
Methodist Church which housed the Acacia Academy – a private school. In point of fact Officer
VanCamp stopped the car near the intersection of Main Street and Harrison, just a few yards
from the church. Abbott was charged with dealing in cocaine as a Class A felony, possession of
cocaine as a Class B felony, and possession of marijuana as a Class A misdemeanor. A jury
found him guilty of possessing cocaine and marijuana and acquitted him of the dealing charge.
1
See Ind. Code § 9-19-19-4.
2
Finding no mitigating factors and citing Abbott’s criminal history and lack of remorse as
aggravating factors the trial court sentenced Abbott to twenty years for possession of cocaine. 2
Abbott appealed raising three claims including his sentence was inappropriate in light of the
nature of the offense and his character. The Court of Appeals rejected these claims and affirmed
the judgment of the trial court. See Abbott v. State, 950 N.E.2d 357 (Ind. Ct. App. 2011). We
grant transfer to address Abbott’s appropriateness claim. In all other respects we summarily
affirm the opinion of the Court of Appeals. See Ind. Appellate Rule 58(A).
Discussion
Possession of cocaine is generally a Class D felony which carries a maximum penalty of
three years. See Ind. Code §§ 35-48-4-6(a), 35-50-2-7. The offense is enhanced to a Class B
felony if the person possesses less than three grams of cocaine “in, on, or within one thousand
(1000) feet of . . . school property.” I.C. § 35-48-4-6(b)(2)(i). A Class B felony carries a
maximum penalty of twenty years. However, it is a defense for a person charged under Indiana
Code section 35-48-4-6(b) where the person was “in, on, or within one thousand (1000) feet of
school property . . . at the request or suggestion of a law enforcement officer or an agent of a law
enforcement officer.” I.C. § 35-48-4-16(c). This is not an affirmative defense, but rather a
mitigating factor that reduces culpability, “and therefore the defendant does not have the burden
of proof but ‘only the burden of placing the issue in question where the State’s evidence has not
done so.’” Harrison v. State, 901 N.E.2d 635, 642 (Ind. Ct. App. 2009), trans. denied (quoting
Adkins v. State, 887 N.E.2d 934, 938 (Ind. 2008)). Once at issue, the burden passes to the State
to disprove beyond a reasonable doubt that the defendant was within 1,000 feet of school
property at the request or suggestion of a law enforcement officer or an agent of a law
enforcement officer. See Gallagher v. State, 925 N.E.2d 350, 353 (Ind. 2010).
Here, during its case in chief the State placed at issue whether Abbott was within 1,000
feet of the Acacia Academy at the request of a law enforcement officer. More precisely Officer
VanCamp testified on direct examination that after receiving a radio call from Officer Taylor, he
2
The trial court also sentenced Abbott to one year for marijuana possession. Crediting him with time
served, the trial court noted that Abbott “has satisfied his sentence” with respect to that offense.
Appellant’s App. at 187.
3
“went southbound from the police station” and “I picked up the vehicle in the alley on Harrison
Street and where I initiated a traffic stop at the intersection of Main and Harrison.” Tr. at 173.
Nothing in the record suggests that the driver of the car had anything to do with the location of
the stop. According to Officer VanCamp, “[s]o at that time I activated my emergency lights and
the vehicle pulled over on the east side of the road on Main Street.” Tr. at 174. Additionally,
nothing in the record before us sheds any light on why Abbott made no effort at trial to pursue
the issue of whether his possession of cocaine within 1,000 feet of school property was at the
request of Officer VanCamp. No attempt was made to cross-examine Officer VanCamp on this
issue; not once during closing argument did Abbott mention the statutory mitigating factor under
Indiana Code section 35-48-4-16(c); and Abbott did not request and the trial court did not give a
jury instruction on the matter. Indeed even on appeal Abbott makes no argument concerning
Indiana Code section 35-48-4-16(c).3
In any event we conclude that the circumstances resulting in the enhancement of Abbott’s
offense from a Class D felony to a Class B felony weigh heavily in assessing the appropriateness
of the sentence imposed. We hasten to note there is no question that the trial court properly
exercised its sentencing discretion in this case. Nonetheless, “[a]lthough a trial court may have
acted within its lawful discretion in determining a sentence, Article VII, Sections 4 and 6 of the
Indiana Constitution ‘authorize[] independent appellate review and revision of a sentence
imposed by the trial court.’” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007) (quoting
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)). Our appellate authority is implemented
through Indiana Appellate Rule 7(B), which allows us to “revise a sentence authorized by statute
if, after due consideration of the trial court’s decision, the Court finds that the sentence is
inappropriate in light of the nature of the offense and the character of the offender.”
Concerning Abbott’s character, the record shows he has an extensive history of juvenile
delinquency and adult criminal convictions that include resisting arrest, receiving stolen
property, and possession of cocaine. As the Court of Appeals observed, “[c]learly, Abbott has
not reformed his criminal behavior despite his numerous prior contacts with the criminal justice
system.” Abbott, 950 N.E.2d at 365. We agree. But this is not the end of the inquiry. As to the
nature of the offense, the advisory sentence is the starting point the Legislature has selected as an
3
Although representing himself on transfer, Abbott was represented by counsel on direct appeal.
4
appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081. And the advisory
sentence for a Class B felony is ten years. See I.C. § 35-50-2-5. We emphasize however that
Abbott’s offense was enhanced from a Class D felony – which has an advisory sentence of one
and a half years, see I.C. § 35-50-2-7 – to a Class B felony because he was “in, on, or within one
thousand feet (1000) of . . . school property.” I.C. § 35-48-4-6(b)(2)(i). However, but for the
police officer’s choice of location in stopping the car in which Abbott was a passenger, he would
have received no more than the maximum three-year sentence for his possession of less than
three grams of cocaine. These circumstances compel us to conclude that although Abbott’s
character does not necessarily justify a revision of his sentence, the nature of Abbott’s offense in
this case renders his twenty-year maximum sentence inappropriate. We therefore grant transfer
and revise Abbott’s sentence to twelve years – two years above the statutory advisory term for a
Class B felony.
Conclusion
We remand this cause to the trial court with instructions to issue an amended sentencing
order consistent with this opinion. The judgment of the trial court is otherwise affirmed.
Shepard, C.J., and Sullivan, J., concur.
David, J., dissents with separate opinion in which Dickson, J., concurs.
5
David, J., dissenting.
I would affirm the trial court. The sentence imposed by the trial court was not
inappropriate in light of the nature of the offense and the character of the offender. Ind.
Appellate Rule 7(B).
Over one gram of cocaine and five grams of marijuana were found by a physician in a
plastic bag hidden under Abbott’s scrotum. In addition, Abbott was arrested within 1000 feet of
a school. Indiana Code section 35-48-4-6(b)(2) accordingly elevates Abbott’s Class D felony
conviction of possession of cocaine to a Class B felony. I write to stress two important points
about Abbott’s crime and sentence.
First, in Walker v. State, this Court held that a defendant’s presence in a school zone is a
strict liability element. 668 N.E.2d 243, 244 (Ind. 1996) (“[W]e can imagine an altogether
rational reason the legislature might decide to write a statute with a strict liability punishment
provision.”). It is clear that with this provision the legislature intended to deter drug activity
from in and around schools and to give more discretion to law enforcement, prosecutors, and
judges in combating the evils of drugs. As this Court has aptly stated, “‘[a] dealer’s lack of
knowledge of his proximity to the schools does not make the illegal drug any less harmful to the
youth in whose hands it may eventually come to rest.’” Id. at 244–45 (quoting Williford v. State,
571 N.E.2d 310, 313 (Ind. Ct. App. 1991), trans. denied).
Second, although sympathy may arise when a defendant who commits a Class D felony
suddenly finds himself facing a Class B felony sentence, the trial court here adequately justified
the sentence imposed. Thus, I agree with the Court of Appeals conclusion that the nature of the
offense and Abbott’s character “support[] the trial court decision to impose a twenty-year
sentence.” Abbott v. State, 950 N.E.2d 357, 365 (Ind. Ct. App. 2011). Specifically, in regards to
Abbott’s offense, the Court of Appeals stated that “Abbott was found with a not insubstantial
amount of cocaine and marijuana, along with plastic baggies that are commonly used to package
illicit drugs for sale.” Id. at 364–65. The Court of Appeals also appropriately noted that “Abbott
has ten convictions, including felony convictions for receiving stolen property, cruelty to an
animal, and possession of cocaine. . . . Clearly, Abbott has not reformed his criminal behavior
despite his numerous prior contacts with the criminal justice system.” Id. at 365.
For the foregoing reasons, I respectfully dissent.
Dickson, J., concurs.
2