Eric W. Guthrie v. State of Indiana (mem. dec.)

E
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
                                                                                        FILED
regarded as precedent or cited before any                                           Dec 28 2020, 9:26 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
Alex M. Ooley                                            Curtis T. Hill, Jr.
Borden, Indiana                                          Attorney General of Indiana

                                                         Sierra A. Murray
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Eric W. Guthrie,                                         December 28, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-1445
        v.                                               Appeal from the Washington
                                                         Superior Court
State of Indiana,                                        The Honorable Frank E.
Appellee-Plaintiff.                                      Newkirk, Jr., Judge
                                                         Trial Court Cause No.
                                                         88D01-1712-F2-854



Sharpnack, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-1445 | December 28, 2020            Page 1 of 10
                                          Statement of the Case
[1]   Eric W. Guthrie pleaded guilty to possession of methamphetamine as a Level 4
                 1
      felony and was sentenced to six years executed in the Indiana Department of

      Correction (DOC). He appeals his sentence. We affirm.


                                                    Issues
[2]   Guthrie presents the following two issues for our review:


                 1.       Whether his sentence is inappropriate in light of the nature
                          of the offense and the character of the offender; and
                 2.       Whether the trial court abused its discretion in sentencing
                          Guthrie to six years executed in the DOC with no time
                          suspended.


                                   Facts and Procedural History
[3]   At approximately 11:00 p.m. on December 10, 2017, Deputy Tory Hildreth

      with the Washington County Sheriff’s Department observed a Ford F150 truck

      with a broken taillight make a right hand turn without using a turn signal in

      Salem, Indiana. Deputy Hildreth initiated a traffic stop. Guthrie was identified

      as the driver of the truck, and Cierra Knieriem was identified as the passenger.


[4]   Additional law enforcement officers arrived at the scene to lend assistance,

      including Washington County Sheriff’s Deputy Brad Naugle and Officer Chad




      1
          Ind. Code § 35-48-4-6.1(c)(2) (2014).


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1445 | December 28, 2020   Page 2 of 10
      Webb with the Salem City Police Department. Officer Webb saw what he

      believed to be a drug pipe on the rear passenger side floorboard of the truck.

      The pipe field tested positive for methamphetamine. Guthrie and his passenger

      were asked to step out of the truck and were handcuffed. The truck was

      searched and inventoried. A second pipe and a partially burned marijuana

      cigarette were discovered in the truck’s center console.


[5]   Deputy Naugle read Knieriem her Miranda rights and then spoke with her.

      Knieriem stated that she had been to Guthrie’s home and had observed a bag

      containing approximately a quarter ounce of marijuana in Guthrie’s bedroom

      and used needles in a closet. Deputy Naugle then read Guthrie his Miranda

      rights. Guthrie told Deputy Naugle that the only drugs that would be found at

      his home would be two marijuana cigarettes.


[6]   Based on the information obtained during the traffic stop, a search warrant was

      obtained for Guthrie’s residence. A search of the residence was conducted

      shortly after midnight on December 11, 2017. During the search, the officers

      collected numerous drug related items, including methamphetamine. Guthrie

      was arrested and charged with a total of twenty-five drug related offenses.


[7]   On January 8, 2020, Guthrie pleaded guilty, pursuant to a plea agreement, to

      one count of Level 4 felony possession of methamphetamine. In exchange, the

      State agreed to dismiss the remaining charges. The agreement left sentencing to

      the discretion of the trial court but capped the executed time at twelve years.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1445 | December 28, 2020   Page 3 of 10
      That same day, the trial court accepted Guthrie’s guilty plea and entered a

      judgment of conviction.


[8]   On July 8, 2020, the trial court sentenced Guthrie to six years executed in the

      DOC with no time suspended. At sentencing, the trial court provided the

      following statement:


                 So I have a decision here. And I want to tell you that I have
                 made an evaluation as required by law of the aggravating and
                 mitigating circumstances. Which I found to be an aggravator,
                 the fact that there is a history of criminal activity. I also find as
                 mitigators that the defendant did accept guilt for a crime and
                 entered into this open plea. Also, the fact that his son is without
                 a mother now has been considered as a possible hardship, but I
                 can’t really find that it’s an undue hardship,[2] but I have listed it
                 under the categories of mitigating factors. And the reason that I
                 can’t find that its [sic] an undue hardship, is the fact that there
                 has not been payment of support and the fact that there are
                 grandparents who are guardians of the child now. But I have
                 listed it under the mitigating factor section. So I don’t really
                 know whether you would have done well on probation, but I’m
                 not going to put you on probation. I am simply going to impose
                 the advisory sentence of six years for this.


      Tr. Vol. 2, pp. 36-38. Guthrie now appeals.




      2
          Guthrie testified that his son’s mother is deceased.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1445 | December 28, 2020   Page 4 of 10
                                   Discussion and Decision
                                    I. Inappropriate Sentence
[9]   Guthrie argues his six-year sentence is inappropriate in light of the nature of his

      offense and his character.


              We may review and revise criminal sentences pursuant to the
              authority derived from Article 7, Section 6 of the Indiana
              Constitution. Indiana Appellate Rule 7(B) empowers us to revise
              a sentence “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.” Because
              a trial court’s judgment “should receive considerable
              deference[,]” our principal role is to “leaven the outliers.”
              Cardwell v. State, 895 N.E.2d 1219, 1222-25 (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). The defendant bears the burden to
              persuade this court that his or her sentence is inappropriate,
              Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006), and we may
              look to any factors appearing in the record for such a
              determination. Stokes v. State, 947 N.E.2d 1033, 1038 (Ind. Ct.
              App. 2011), trans. denied.


      Reis v. State, 88 N.E.3d 1099, 1101-02 (Ind. Ct. App. 2017). The question under

      Appellate Rule 7(B) analysis is “not whether another sentence is more

      appropriate” but rather “whether the sentence imposed is inappropriate.” King

      v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Whether a sentence is

      inappropriate “turns on our sense of the culpability of the defendant, the

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1445 | December 28, 2020   Page 5 of 10
       severity of the crime, the damage done to others, and myriad other factors that

       come to light in a given case.” Cardwell, 895 N.E.2d at 1224.


[10]   We begin with the advisory sentence in determining the appropriateness of a

       sentence. Childress, 848 N.E.2d 1073. Since the advisory sentence is the

       starting point our General Assembly has selected as an appropriate sentence for

       the crime committed, the defendant bears a particularly heavy burden in

       persuading us that his sentence is inappropriate when the trial court imposes

       the advisory sentence. Golden v. State, 862 N.E.2d 1212, 1216 (Ind. Ct. App.

       2007), trans. denied. The sentencing range for a Level 4 felony is “a fixed term

       of between two (2) and twelve (12) years, with the advisory sentence being six

       (6) years.” Ind. Code § 35-50-2-5.5 (2014). Guthrie was sentenced to the

       advisory sentence for the Level 4 felony.


[11]   To determine the nature of the offense, we examine the details and

       circumstances surrounding the offense. Washington v. State, 940 N.E.2d 1220,

       1222 (Ind. Ct. App. 2011), trans. denied. Here, when officers executed the

       search of Guthrie’s residence, they found evidence of drug use and drug

       dealing, including drug paraphernalia with drug residue inside, packaging

       materials, measuring spoons, weight scales, ten cell phones, and firearms.

       Originally, Guthrie was charged with twenty-five drug related offenses, which

       included felony and misdemeanor charges for dealing in and possession of

       methamphetamine, dealing in and possession of heroin, maintaining a common

       nuisance, and possession of a synthetic or synthetic lookalike drug. Guthrie

       ultimately pleaded guilty to one count of Level 4 felony possession of

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1445 | December 28, 2020   Page 6 of 10
       methamphetamine. He maintains that because his offense was a nonviolent

       offense he should have been sentenced to time served and probation. However,

       we find that nothing about the nature and circumstances of Guthrie’s offense

       leads us to the conclusion that his six-year sentence is inappropriate.


[12]   The character of the offender is found in what we learn of the offender’s life and

       conduct. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). When

       considering the character of the offender, one relevant fact is the defendant’s

       criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013).

       Guthrie argues that his sentence is inappropriate as to his character because,

       among other things, he has had no felony convictions prior to the instant case;

       he has not been charged with any violent offenses; he was not on probation at

       the time he committed the instant offense; and he has not been convicted of

       committing a crime in over ten years.


[13]   Guthrie’s criminal history includes the following: In 1997, he was charged with

       public intoxication and minor consumption of alcohol. He was granted a

       deferral and the charges were eventually dismissed. The following year, he was

       charged with conspiracy to commit burglary. He entered into and successfully

       completed a pretrial diversion program for the offense. In July of 2006, he was

       charged with and pleaded guilty to operating a vehicle with .08 B.A.C. or

       greater. He was sentenced to sixty days with fifty-eight days suspended and

       placed on supervised probation for six months. We acknowledge that Guthrie’s

       criminal history is not extensive and resulted in few convictions; however, it

       still reflects poorly on his character and shows he was not deterred by previous

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1445 | December 28, 2020   Page 7 of 10
       contacts with the criminal justice system from committing the current offenses.

       See Reis, 88 N.E.3d at 1105 (noting that “[e]ven a minor criminal record reflects

       poorly on a defendant’s character”). Given Guthrie’s criminal history – as well

       as his failure to pay child support, which also reflects poorly on his character –

       we cannot say that his sentence is inappropriate for his character.


[14]   Under these facts and circumstances, we find that both the nature of the offense

       and Guthrie’s character support the six-year sentence imposed by the trial court.

       Guthrie’s sentence is not inappropriate.


                           II. Abuse of Discretion at Sentencing
[15]   “[S]entencing decisions rest within the sound discretion of the trial court and

       are reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868

       N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. “So long as

       the sentence is within the statutory range, it is subject to review only for abuse

       of discretion.” Id. An abuse of discretion occurs “if the decision is ‘clearly

       against the logic and effect of the facts and circumstances before the court, or

       the reasonable, probable, and actual deductions to be drawn therefrom.’” Id.

       (citation omitted).


[16]   First, Guthrie argues that the trial court abused its discretion at sentencing by

       failing to consider probation as a term of his sentence. However, to the

       contrary, the court did consider placing Guthrie on probation. In its sentencing

       statement, the trial court specifically noted that it did not know “whether

       [Guthrie] would have done well on probation” and ultimately determined that

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1445 | December 28, 2020   Page 8 of 10
       it was “not going to put [Guthrie] on probation.” Tr. Vol. 2, p. 38.

       Furthermore, we remind Guthrie that “consideration and imposition of

       alternatives to incarceration is a ‘matter of grace’ left to the discretion of the

       trial court.” See Wolf v. State, 793 N.E.2d 328, 330 (Ind. Ct. App. 2003)

       (quoting Million v. State, 646 N.E.2d 998, 1001-02 (Ind. Ct. App. 1995)).

       Because the trial court had the discretion to determine that incarceration was

       more appropriate than probation, its exercise of this discretion was not an abuse

       of discretion.


[17]   Guthrie next argues that the trial court abused its discretion by failing to

       provide detailed reasons for imposing the fully executed sentence. Guthrie also

       argues that the trial court’s statement that it did not know “if [Guthrie] would

       do well on probation” “is clearly against the logic and effect of the facts and

       circumstances before the court” because, according to Guthrie, the presentence

       investigation report recommended that he be placed on probation, and his prior

       successful completions of pretrial diversion and a six-month term of probation

       “show[ed] that he could do well under conditions similar to probation.” Reply

       Br. p. 5.


[18]   It is well settled that a trial court may abuse its discretion by failing to enter

       a sentencing statement at all, by explaining reasons for imposing a sentence not

       supported by the record, or if “the sentencing statement omits reasons that are

       clearly supported by the record and advanced for consideration[.]” Anglemyer,

       868 N.E.2d at 491. However, here, because the trial court sentenced Guthrie to

       the advisory sentence of six years for the Level 4 felony, the trial court was not

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1445 | December 28, 2020   Page 9 of 10
       required to enter a sentencing statement. See Ward v. State, 113 N.E.3d 1242,

       1245 (Ind. Ct. App. 2018) (“[A] trial court is not required to enter a sentencing

       statement if it imposes the advisory sentence for a felony conviction.”); see also

       Ind. Code § 35-38-1-1.3 (2014) (“After a court has pronounced a sentence for a

       felony conviction, the court shall issue a statement of the court’s reasons for

       selecting the sentence that it imposes unless the court imposes the advisory

       sentence for the felony.”). Though not required to do so, the trial court

       nevertheless entered a sentencing statement indicating that it considered

       Guthrie’s criminal history as an aggravating factor and considered as mitigating

       factors Guthrie’s guilty plea and Guthrie’s argument regarding the undue

       hardship on his son that imprisonment would cause because Guthrie’s son is

       without a mother. The court also considered probation as an alternative to

       incarceration. The trial court did not abuse its discretion when it sentenced

       Guthrie.


                                                Conclusion
[19]   For the reasons stated, we conclude that Guthrie’s six-year sentence is

       not inappropriate in light of the nature of the offense and his character and that

       the trial court did not abuse its discretion at sentencing.


[20]   Affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1445 | December 28, 2020   Page 10 of 10

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