Combs v. State

.VAIDIK, Judge,

concurring in part and dissenting in part.

I agree with the majority that the war-rantless search of the car was proper. However, I part ways with the majority's analysis and conclusion on the inappropriate sentence issue. I therefore concur in part and dissent in part.

The jury found Combs guilty of Class C felony possession of methamphetamine, Class A misdemeanor possession of paraphernalia, and Class A misdemeanor car*1064rying a handgun without a license. The trial court identified as aggravators that Combs violated the conditions of his release on bond in the instant case by twice testing positive for methamphetamine and that Combs has a prior substance abuse conviction, specifically, a conviction for possession of marijuana from approximately eleven years before.10 The trial court identified no mitigators. Finding that the aggravators outweighed the mitigators, the trial court sentenced Combs to an enhanced sentence of six years with two years suspended to probation for Class C felony possession of methamphetamine.11 The trial court ordered the sentences for the other convictions to be served concurrently.

In reaching its conclusion that Combs' sentence is inappropriate, the majority found that one of the aggravators identified by the trial court-that Combs twice tested positive for methamphetamine while out on bond-violated Blakely because the State never proved the positive test result beyond a reasonable doubt. As a result, the majority found that there was only one proper aggravator-Combs' distant possession conviction. Given the low quantity of methamphetamine found on Combs and the "extremely limited significance" of Combs' prior possession conviction, the majority concluded that Combs' sentence was inappropriate and reduced it to the presumptive term of four years. Op. at 1062. For the reasons that follow, I believe that Combs' sentence is appropriate.

I first point out that Combs was sentenced under the old "presumptive" sentencing scheme. Under that scheme, we first determine whether the trial court properly found and balanced the mitigating and aggravating circumstances. Even if we assume that the trial court improperly considered as an aggravator Combs! methamphetamine use while out on bond because it violated Blakely, Combs' sentence was still correctly enhanced because of his prior conviction for possession of marijuana. Although this conviction is more than ten years old, it relates directly to his current drug offenses. See Williams v. State, 838 N.E.2d 1019, 1021 (Ind.2005) ("The significance of a criminal history varies based on the gravity, nature and number of prior offenses as they relate to the current offense.") (quotation omitted). This aggravator, particularly in the absence of any mitigators, is sufficient to sustain Combs' aggravated sentence. See id.

Because Combs' enhanced sentence is statutorily proper under our presumptive sentencing scheme as well as under Blakety, we then conduct an independent review of the sentence for appropriateness under Indiana Appellate Rule 7(B). In doing so, we look to the nature of the offense and the character of the offender. This review is more expansive and may consider more than simply a "re-look" at the appropriate aggravators and mitigators. See Childress v. State, 848 N.E.2d 1073, 1079-1080 (Ind.2006) ("Indeed even where the trial court has been meticulous in following the proper procedure in imposing a sentence, 'we still may exercise our authority under Appellate Rule 7(B) to revise a sentence that we conclude is inappropriate in light of the nature of the offense and the character of *1065the offender.'") (quoting Hope v. State, 834 N.E2d 713, 718 (Ind.Ct.App.2005)). To be sure, if our review under Appellate Rule 7(B) were limited to reviewing the proper aggravators and mitigators found by the trial court, then the reviews would be co-extensive. Our Supreme Court emphasized in Childress that even though a trial court may have acted within its lawful discretion when imposing a sentence, Article VII, Section 6 of the Indiana Constitution authorizes "independent appellate review." Id. at 1080. In our independent review under Appellate Rule 7(B), we are not constrained by using only Blakely ag-gravators."12

Blakely is concerned with the enhancement of a defendant's sentence based on facts not proven beyond a reasonable doubt. 542 U.S. 296, 303-04, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Under Appellate Rule 7(B), Indiana appellate courts may not increase a defendant's sentence. See Ind. Appellate Rule 7(A) ("A defendant in a Criminal Appeal may appeal the defendant's sentence.") (emphasis added).13 As such, Appellate Rule 7(B) does not implicate Blakely. Therefore, when analyzing the nature of the offense and the character of the offender under Appellate Rule 7(B), appellate courts may rely upon facts that were not proven beyond a reasonable doubt because there is simply no danger to the defendant that his sentence will be increased. Indeed, Appellate Rule 7(B) is used as a vehicle to reduce a defendant's sentence. Using this framework, I now proceed to address whether Combs' sentence is inappropriate by looking to the nature of the offenses and his character.14

As for Combs' character, the record shows that he has a prior conviction for possession of marijuana. Although this conviction is over ten years old, two of Combs' convictions in the present case are drug-related. Moreover, when Combs was out on bond in this case, he twice tested positive for methamphetamine in violation of the conditions of his bond. As a result, Combs had his bond revoked. And at the time of sentencing in this case, Combs had two methamphetamine charges pending against him. See Johnson v. State, 837 N.E.2d 209, 218 (Ind.Ct.App.2005) ("When evaluating the character of an offender, a trial court may consider the offender's arrest record in addition to actual convie-tions. A record of arrests, particularly a lengthy one, may reveal that a defendant has not been deterred even after having been subject to the police authority of the State.") (quotation and internal citation omitted), trans. denied. This shows that Combs is not able to conform his conduct to the law, even when he knows that he is being drug tested and must not use drugs as a condition of his liberty.

*1066Regarding the nature of the offense, it is true that a small amount of methamphetamine was found in the car. However, at the time Combs was stopped, he was driving a car, he was under the influence of methamphetamine, and he possessed two loaded guns and a knife. This dangerous combination persuades me that the nature of this offense is serious. After due consideration of the trial court's decision, I cannot conclude that the two years of probation tacked on to Combs' four-year sentence makes his sentence inappropriate. I therefore dissent on this issue.

. The trial court also identified as an aggra-vator that the imposition of a reduced or suspended sentence and imposition of probation would depreciate the seriousness of the crime. However, this aggravator is improper.

. Pursuant to Indiana Code § 35-50-2-6 (2004), the presumptive sentence was four years, with the minimum sentence being two years and the maximum sentence being eight years.

. Had Combs' sentence not been statutorily proper or had his sentence violated Blakely (such as if alf of the aggravators were improper under Blakely), we also could have exercised our constitutional authority to revise his sentence rather than remand to the trial court. See Neff v. State, 849 N.E.2d 556, 562 (Ind.2006); Williams v. State, 827 N.E.2d 1127, 1128 (Ind.2005). In this instance only, the reviews would be co-extensive.

. Appellate Rule 7(A) also provides, "The State may not initiate an appeal of a sentence, but may cross-appeal where provided by law." The State may appeal only those matters specified in Indiana Code § 35-38-4-2. See Lewis v. State, 769 N.E.2d 243, 247 n. 5 (Ind.Ct.App.2002), aff'd on reh g, 774 N.E.2d 941, trans. denied. In addition, the State may also appeal when a trial court fails to sentence a defendant in accordance with statutory requirements. Id. None of these reasons include increasing a defendant's sentence because it is inappropriate.

. This may not be the same framework we work with when we review sentences under the new "advisory" sentencing scheme.