MEMORANDUM DECISION FILED
Apr 12 2017, 10:51 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
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court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gerald Lynn West, April 12, 2017
Appellant-Defendant, Court of Appeals Case No.
84A04-1611-CR-2535
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable Michael J. Lewis,
Appellee-Plaintiff. Judge
Trial Court Cause No.
84D06-1510-F2-2616
Bailey, Judge.
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Case Summary
[1] Gerald Lynn West (“West”) challenges his aggregate thirty-year sentence for
Dealing in Methamphetamine, as a Level 2 felony,1 Maintaining a Common
Nuisance, as a Level 6 felony,2 Battery, as a Level 5 felony,3 and Possession of
Marijuana, as a Class A misdemeanor.4 He presents the issue of whether his
sentence is inappropriate. We affirm.
Facts and Procedural History
[2] On October 13, 2015, Terre Haute Police Department Officer Daniel LaFave
(“Officer LaFave”) initiated a traffic stop of a van driven by West, attached to a
trailer without operational brake lights. West produced a driver’s license but
was unable or unwilling to produce the vehicle’s registration and his proof of
insurance. West also denied knowing the name of his insurance provider.
Officer LaFave asked that West and his juvenile companion exit the vehicle.
[3] A canine police unit arrived, and the canine alerted to the presence of drugs.
As Officer Jeffrey Pupilli approached West to place him in handcuffs, West
turned and punched the officer in the face. West began to run away; he fell to
1
Ind. Code § 35-48-4-1.1(a)(2).
2
I.C. § 35-48-4-13(b)(2)(A) [now repealed and re-codified at I.C. § 35-45-1-5].
3
I.C. § 35-42-2-1.
4
I.C. § 35-48-4-11(a)(1).
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the ground after an officer deployed his Taser. West was eventually subdued
and arrested by four police officers.
[4] After the struggle, West’s van was searched. Inside the van was a large
insulated bag containing two smaller bags. Inside the smaller bags officers
found 357.38 grams of crystal methamphetamine. The officers also seized 2.58
grams of marijuana, digital scales with white residue, and a pipe.
[5] West was charged with Dealing in Methamphetamine, Possession of
Methamphetamine, Maintaining a Common Nuisance, two counts of Resisting
Law Enforcement, Battery, and Possession of Marijuana. A jury convicted him
as charged. Due to double jeopardy concerns, the trial court entered judgments
of conviction and sentences upon only four counts. For Dealing in
Methamphetamine, West received a sentence of thirty years. He received
concurrent sentences of two years for Maintaining a Common Nuisance, three
years for Battery, and 180 days for Possession of Marijuana. This appeal
ensued.
Discussion and Decision
[6] West requests that we revise his sentence pursuant to Indiana Appellate Rule
7(B). The authority granted to this Court by Article 7, § 6 of the Indiana
Constitution permitting appellate review and revision of criminal sentences is
implemented through Appellate Rule 7(B), which provides: “The Court may
revise a sentence authorized by statute if, after due consideration of the trial
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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.” Under this rule, and as
interpreted by case law, appellate courts may revise a sentence after due
consideration of the trial court’s decision, if the sentence is found to be
inappropriate in light of the nature of the offense and the character of the
offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,
798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to
attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.
[7] West was convicted of Level 2, Level 5, and Level 6 felonies. He faced a
sentencing range of ten to thirty years, with 17 and 1/2 years as the advisory
sentence; one to six years, with three years as the advisory sentence; and 6
months to 2 and 1/2 years, with one year as the advisory sentence, respectively.
I.C. §§ 35-50-2-4.5, 35-50-2-6, 35-50-2-7. Upon conviction of a Class A
misdemeanor, West faced a sentence of up to one year in prison. I.C. § 35-50-3-
2. West’s thirty-year, three-year, two-year, and 180 day sentences are
concurrent, yielding an aggregate sentence for all offenses equal to the
maximum term for a Level 2 felony.
[8] As for the nature of West’s offenses, he possessed 357.38 grams of crystal
methamphetamine and 2.58 grams of marijuana. The offense of possession of
methamphetamine is elevated to a Level 2 felony upon possession of 10 or
more grams. West possessed an amount approximately 35 times this threshold
amount. He struck a police officer and fled. Four police officers were required
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to subdue and arrest him. West’s conduct took place in the presence of a
juvenile. These circumstances do not militate toward a lesser sentence.
[9] Regarding West’s character, he has a lengthy criminal history. In 1989, he was
sentenced to six and one-half years’ imprisonment in a federal prison for
distributing cocaine within 100 feet of a school and possession of a firearm. In
2000, West was convicted of Dealing in Cocaine and Dealing in a Schedule II
Controlled Substance. His thirty-year sentence was modified to twenty years,
and he was released from prison in 2007. In 2014, West was charged with
Dealing in Methamphetamine and Resisting Law Enforcement. The charges
were dismissed in 2015, after West obtained an order suppressing evidence. 5
[10] Awaiting trial for the instant charges, West wrote a letter to his wife suggesting
that she participate in putting forth one of two scenarios in which West would
not be culpable for possession of methamphetamine. He suggested that a
juvenile admit to stealing the drugs. Alternatively, he suggested that his wife
should claim: she wanted rid of West, she had an affair with a police officer,
and she and the police officer planted evidence to frame West. West’s criminal
history and conduct during incarceration do not speak well of his character.
5
A record of arrest, without more, does not establish the historical fact that a defendant committed a
criminal offense, and thus the arrest is not evidence of a criminal history. Cotto v. State, 829 N.E.2d 520, 526
(Ind. 2005). However, a record of arrest may reveal that a defendant has not been deterred after subjection to
the police authority of the state and the information may be relevant to the trial court’s assessment of a
defendant’s character. Id.
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[11] West has failed to benefit from prior opportunities for rehabilitation. He has
not persuaded us that his thirty-year sentence is inappropriate.
[12] Affirmed.
Vaidik, C.J., and Robb, J., concur.
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