Matthew Powell v. State of Indiana

Connersville, IN - Criminal defense lawyer represented defendant Matthew Powell with raising 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.

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 fifteenyear 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 decadeslong 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.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1371 | 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).

Affirmed