Brett W Walters v. State of Indiana

Indianapolis, IN: Criminal defense lawyer represented Defendant charged with possession of methamphetamine, possession of paraphernalia, resisting law enforcement and two counts of disorderly conduct.

On July 29, 2019, Fort Wayne Police officers were dispatched to a Walmart

store in Fort Wayne in reference to an unwanted party.1

When they arrived,

the officers found Walters accompanying a person they suspected to be the

unwanted party. The officers noticed a smell of marijuana coming from

Walters and detained him. During a patdown search, officers located a glass

smoking device which contained burnt residue. The officers placed Walters

under arrest, searched him further, and located a clear sandwich bag containing

2.8 grams of methamphetamine.

[3] On August 2, 2019, the State charged Walters under cause number 02D05-

1908-F6-944 ("Cause No. 944”) with possession of methamphetamine as a level

6 felony and possession of paraphernalia as a class C misdemeanor. On August

14, 2019, the court entered an Order for Monitored Conditional Release.

1 Although the guilty plea transcript reveals little about the nature of the offenses, Walters cites portions of

the probable cause affidavits on appeal.Court of Appeals of Indiana | Memorandum Decision 21A-CR-74 | June 28, 2021 Page 3 of 8

[4] On August 17, 2019, Fort Wayne Police officers were dispatched to an address

in reference to a "party armed.” Appellant's Appendix Volume II at 100. The

officers located Walters who began to yell and argue with them. Officers told

him to quiet down but he continued to be loud and drew the attention of a

crowd. After being taken to the hospital, he continued to yell and scream and

called the police and hospital staff "foul names.” Appellant's Brief at 9. His

conduct continued, and officers forcibly removed him from the hospital.

Walters then fell to the ground and refused to stand up while being taken to a

police vehicle. While being placed in the vehicle, he attempted to kick and

lunge at the officers, pushed off the vehicle, and caused an officer to be knocked

backwards.

[5] The State charged Walters under cause number 02D05-1908-CM-3818 ("Cause

No. 3818”) with resisting law enforcement as a class A misdemeanor and two

counts of disorderly conduct as class B misdemeanors. On August 19, 2019,

the court entered an order under Cause No. 944 finding probable cause that

Walters violated the conditions of release and ordered him to be held without

bond.

[6] On September 9, 2019, Walters entered a Drug Court Program Participation

Agreement in which he agreed to plead guilty to the charged offenses under

Cause Nos. 944 and 3818 in exchange for the opportunity to participate in the

drug court program. The State agreed to dismiss all counts under Cause Nos.

944 and 3818 upon Walters's compliance with all terms and conditions of the

agreement and after his successful completion of all program requirements. Court of Appeals of Indiana | Memorandum Decision 21A-CR-74 | June 28, 2021 Page 4 of 8

That same day, the court held a hearing under Cause Nos. 944 and 3818, and

Walters pled guilty and indicated that he read and signed the agreement.

[7] On November 16, 2020, the Allen County Drug Court Case Manager filed a

petition to terminate Walters's participation in the drug court program and

alleged Walters violated the terms of the participation agreement by failing to

maintain good behavior by being in possession of synthetic marijuana on or

about October 24, 2020, during a home visit by the field team. That same day,

the court entered orders under Cause Nos. 944 and 3818 finding that he

violated the terms of the agreement and revoked him from the drug court

program.

[8] On December 18, 2020, the court held a consolidated sentencing hearing under

Cause Nos. 944 and 3818. Walters stated:

[The prosecutor] said that I didn't complete my residence. I

completed Road to Recovery, but as for overall, I apologize to

the system. I don't mean to cause more problems or more work

for you guys. I think I had every intention to complete the

program, I meant to complete the program, I would have

completed the program, but on Valentine's I was placed in the

county jail for two missed appointments, which one of them I

rescheduled and one of them I went to, but they told me to leave

because I was sick. I felt that wasn't right, but I was placed in the

county jail for Valentine's Day. I think that was the beginning of

the end for my relationship with my significant other at that time

and ever since then my thought process towards the program has

been negative because of the failed relationship. And it shouldn't

have been. I should have been able to get past that and complete

the program. It just had my thought process poisoned toward the Court of Appeals of Indiana | Memorandum Decision 21A-CR-74 | June 28, 2021 Page 5 of 8

program and I didn't want to complete the program anymore and

I apologize.

Transcript at 18.

[9] The court found Walters's juvenile and adult criminal record, failed efforts at

rehabilitation, commission of new offenses while he was on bond in a felony

matter, and that he was a "multi-state offender with a conviction in Kentucky

and multiple convictions here in Indiana” as aggravating circumstances. Id. at

19. The court found Walters's guilty plea, acceptance of responsibility, and

remorse as mitigating circumstances.

[10] The court sentenced Walters under Cause No. 944 to two years for possession

of methamphetamine as a level 6 felony and sixty days for possession of

paraphernalia as a class C misdemeanor served concurrent with each other and

consecutive to the sentence in Cause No. 3818. Under Cause No. 3818, the

court sentenced him to the Allen County Confinement Facility for 365 days for

resisting law enforcement as a class A misdemeanor, ninety days for disorderly

conduct as a class B misdemeanor, and 180 days for disorderly conduct as a

class B misdemeanor. The court ordered that the sentences be served

concurrent with each other and consecutive to the sentence under Cause No.

944.

Discussion

[11] The issue is whether Walters's sentence is inappropriate in light of the nature of

the offenses and his character. Walters argues that possession of Court of Appeals of Indiana | Memorandum Decision 21A-CR-74 | June 28, 2021 Page 6 of 8

methamphetamine does not create any danger to any other person unless

additional circumstances are present and his offenses under Cause No. 944 did

not harm any other person. He also points to his acceptance of responsibility

and guilty plea.

[12] Ind. Appellate Rule 7(B) provides that we "may revise a sentence authorized by

statute if, after due consideration of the trial court's decision, [we find] that the

sentence is inappropriate in light of the nature of the offense and the character

of the offender.” Under this rule, the burden is on the defendant to persuade

the appellate court that his or her sentence is inappropriate. Childress v. State,

848 N.E.2d 1073, 1080 (Ind. 2006).

[13] Ind. Code § 35-50-2-7 provides that a person who commits a level 6 felony shall

be imprisoned for a fixed term of between six months and two and one-half

years, with the advisory sentence being one year. Ind. Code § 35-50-3-2

provides that a person who commits a class A misdemeanor shall be

imprisoned for a fixed term of not more than one year. Ind. Code § 35-50-3-3

provides that a person who commits a class B misdemeanor shall be imprisoned

for a fixed term of not more than 180 days. Ind. Code § 35-50-3-4 provides that

a person who commits a class C misdemeanor shall be imprisoned for a fixed

term of not more than sixty days.

[14] Our review of the nature of the offenses reveals that Walters accompanied an

individual who was a suspected unwanted party at a Walmart store. Walters

smelled of marijuana and had a glass smoking device with burnt residue as well Court of Appeals of Indiana | Memorandum Decision 21A-CR-74 | June 28, 2021 Page 7 of 8

as a bag containing 2.8 grams of methamphetamine on his person. Three days

after being given monitored conditional release, officers responded to a dispatch

regarding an armed party and discovered Walters, and he yelled and argued

with officers, refused to quiet down, and drew the attention of a crowd. After

being taken to the hospital, he continued to yell and scream, called the police

and hospital staff foul names, fell to the ground after being removed from the

hospital, refused to stand up, attempted to kick and lunge at the officers, pushed

off of a vehicle, and caused an officer to be knocked backwards.

[15] Our review of the character of the offender reveals that Walters pled guilty as

charged in exchange for the opportunity to participate in the drug court

program and the State agreed to dismiss all counts under Cause Nos. 944 and

3818 upon Walters's compliance with all terms and conditions of the agreement

and his successful completion of all program requirements. Walters

subsequently violated the conditions of the drug court program.

[16] Walters did not include his presentence investigation report in the record to

facilitate this court's assessment of his sentence.2

Walters acknowledges on

appeal that he has accumulated a "substantial criminal history” and that the

2

Walters's failure to include the presentence investigation report in his appendix hampers our ability to

consider his argument and review the trial court's sentencing decision. See Nasser v. State, 727 N.E.2d 1105,

1110 (Ind. Ct. App. 2000) (finding that defendant had waived a sentencing argument because he had failed to

include the presentence investigation report in the record), trans. denied; but see Ind. Appellate Rule 49(B)

(providing that "[a]ny party's failure to include any item in an Appendix shall not waive any issue or

argument”). As the appellant, Walters bears the burden of presenting a record that is complete with respect

to the issues raised on appeal. See Ford v. State, 704 N.E.2d 457, 461 (Ind. 1998), reh'g denied.Court of Appeals of Indiana | Memorandum Decision 21A-CR-74 | June 28, 2021 Page 8 of 8

trial court found at sentencing that he had been adjudicated delinquent nine

times for offenses which would have been crimes had they been committed by

an adult and that he had accumulated seventeen misdemeanor convictions and

nine felony convictions. Appellant's Brief at 15.

[17] After due consideration, we conclude that Walters has not sustained his burden

of establishing that his sentence is inappropriate in light of the nature of the

offenses and his character.

For the foregoing reasons, we affirm Walters’s sentence.