Anthony Henderson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

Mar 19 2015, 9:08 am

Pursuant to Ind. Appellate Rule 65(D), this

Memorandum Decision shall not be regarded as

precedent or cited before any 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

Anthony C. Lawrence Gregory F. Zoeller

Anderson, Indiana Attorney General of Indiana

Larry D. Allen

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Anthony Henderson, March 19, 2015

Appellant-Defendant, Court of Appeals Case No.

48A02-1405-CR-370

v. Appeal from the Madison Circuit

Court

The Honorable David Happe, Judge

State of Indiana, Case No. 48C04-1309-FB-1814

Appellee-Plaintiff

Bradford, Judge.

Case Summary

[1] On September 19, 2013, Anderson Police Officer Christopher Frazier, together

with other Anderson Police Officers, went to the residence of Appellant-

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Defendant Anthony Henderson after Officer Frazier received information

which indicated that Henderson was dealing drugs from his residence. Upon

arriving at Henderson’s residence, officers encountered an individual who

admitted that he had purchased drugs from Henderson. The officers conducted

a search of Henderson’s residence after obtaining a search warrant. During

their search, officers found drugs and drug paraphernalia, including scales and a

ledger that contained client names and dollar amounts next to the client names.

[2] Henderson pled guilty after being charged with Class B felony possession of a

narcotic drug, i.e., heroin, Class B felony possession of cocaine, Class D felony

maintaining a common nuisance, and Class A misdemeanor dealing in

marijuana. The trial court accepted Henderson’s guilty plea and subsequently

sentenced him to an aggregate term of sixteen years, with twelve years executed

and four years suspended to probation. On appeal, Henderson contends that

the trial court abused its discretion in sentencing him and that his sentence is

inappropriate in light of the nature of his offenses and his character. We

disagree and conclude that the trial court did not abuse its discretion in

sentencing Henderson and that his sentence is not inappropriate.

Facts and Procedural History

[3] While working for the Anderson Police Department, Officer Christopher

Frazier received information from the Madison County Drug Task Force

(“MCDTF”) indicating that Henderson was dealing marijuana, cocaine, and

prescription medication from his residence. On September 19, 2013, Officer

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Frazier and Officer Chad Boynton went to Henderson’s residence, which was

located less than 1000 feet from a public park, to investigate the information

received from the MCDTF.

[4] Upon arriving at Henderson’s residence, Officers Frazier and Boynton

encountered a man, who was subsequently identified as Phillip Hall Jr., exiting

the back door of the residence. Officer Frazier detected the odor of burnt

marijuana coming from Hall’s clothing. Officer Boynton maintained visual

contact with Henderson’s residence while Officer Frazier interviewed Hall at a

nearby location. Hall admitted to Officer Frazier that he had smoked

marijuana inside Henderson’s apartment, that he had purchased marijuana

from Henderson, and that he had previously purchased marijuana from

Henderson on numerous occasions.

[5] While Officer Frazier was speaking to Hall, Officer Boynton reported a steady

stream of vehicle and foot traffic coming to and from Henderson’s residence.

Based on the information received from Hall, Officer Frazier obtained a search

warrant for Henderson’s residence. Officer Boynton and a member of the

MCDTF maintained visual contact with Henderson’s residence while Officer

Frazier completed the process of obtaining a search warrant.

[6] Upon searching Henderson’s residence, officers recovered cocaine, heroin,

marijuana, and various prescription medications from Henderson’s residence.

Henderson did not have a valid prescription for the prescription medications

which were subsequently identified as schedule II and IV narcotics. Officers

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also recovered digital scales and a ledger containing names and dollar amounts

next to the names.

[7] On September 20, 2013, Appellee-Plaintiff the State of Indiana (the “State”)

charged Henderson with Class B felony possession of a narcotic drug, i.e.,

heroin, Class B felony possession of cocaine, Class D felony maintaining a

common nuisance, and Class A misdemeanor dealing in marijuana. The State

also alleged that Henderson was a habitual offender. On April 17, 2014,

Henderson pled guilty as charged.1 The trial court accepted Henderson’s guilty

plea and subsequently sentenced him to an aggregate term of sixteen years, with

twelve years executed in the Department of Correction (“DOC”) and four years

suspended to probation.

Discussion and Decision

[8] On appeal, Henderson contends that the trial court abused its discretion in

sentencing him. Henderson also contends that his aggregate sixteen-year

sentence is inappropriate in light of the nature of his offenses and his character.

We disagree.

1

Based on our review of the record, it does not appear that Henderson admitted to being a

habitual offender or that the trial court made a finding as to whether Henderson qualified as a habitual

offender.

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I. Abuse of Discretion

[9] Sentencing 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), modified on other grounds on reh’g, 875 N.E.2d 218

(Ind. 2007). “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.

(quotation omitted).

One way in which a trial court may abuse its discretion is failing to

enter a sentencing statement at all. Other examples include entering a

sentencing statement that explains reasons for imposing a sentence-

including a finding of aggravating and mitigating factors if any-but 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.

Under those circumstances, remand for resentencing may be the

appropriate remedy if we cannot say with confidence that the trial

court would have imposed the same sentence had it properly

considered reasons that enjoy support in the record.

Id. at 490-91. A single aggravating factor may support an enhanced sentence.

Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993).

[10] Henderson claims that the trial court abused its discretion by finding his high

Indiana Risk Assessment System (“IRAS”) score to be an aggravating factor

during sentencing. The Indiana Supreme Court has held that assessment tools

such as the IRAS “are sufficiently reliable to warrant consideration of their

resulting scores and/or narrative assessments with the other relevant

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information presented to a trial court for purposes of sentencing.” Malenchik v.

State, 928 N.E.2d 564, 574 (Ind. 2010).

Such assessment instruments enable a sentencing judge to more

effectively evaluate and weigh several express statutory sentencing

considerations such as criminal history, the likelihood of affirmative

response to probation or short term imprisonment, and the character

and attitudes indicating that a defendant “is unlikely to commit

another crime.” Ind. Code § 35-38-1-7.1(a)(2), (b)(6)-(8).

Furthermore, even apart from these statutory criteria, which “do not

limit the matters that the court may consider in determining the

sentence,” Ind. Code § 35-38-1-7.1(c), the offender’s scores and/or

narrative assessment results may be considered by a trial judge in

reaching an informed sentencing decision.

Id.

[11] The Indiana Supreme Court further held that “supporting research convincingly

shows that offender risk assessment instruments, which are substantially based

on such personal and sociological data, are effective in predicting the risk of

recidivism and the amenability to rehabilitative treatment.” Id. (citations

omitted). “Because of such established materiality, we discern no impropriety

in [these risk-assessment] scores being considered as a supplemental source of

information to assist a trial court in formulating the manner a sentence is to be

served.” Id. at 575. “Such instruments endeavor to provide usable information

based on extensive penal and sociological research to assist the trial judge in

crafting individualized sentencing schemes with a maximum potential for

reformation.” Id. However, while the Indiana Supreme Court held that the

results of offender-assessment instruments, such as the IRAS, are appropriate

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supplemental tools for judicial consideration at sentencing, these evaluations

and their scores are not intended to serve as aggravating or mitigating

circumstances nor to determine the gross length of sentence, but a trial court

may employ such results in formulating the manner in which a sentence is to be

served. Id.

[12] Upon review, we observe that contrary to Henderson’s claim in this regard, the

trial court did not find his high IRAS score to be an aggravating factor during

sentencing. The written sentencing order lists the aggravating factors as

Henderson’s serious prior criminal history and the number of offenses he

committed in one instance. The trial court did not mention Henderson’s high

IRAS score in explaining Henderson’s sentence in the written sentencing order.

Further, while the trial court did mention Henderson’s high IRAS score in its

verbal sentencing statement, review of the record indicates that the trial court

merely considered Henderson’s high IRAS score together with both the

aggravating and mitigating factors that were presented by the parties during the

sentencing hearing. Specifically, the trial court stated the following:

You seem like you’re fairly in tune with some of the things that you’ve

done wrong, you have some insight into your own behavior. And the

person who I see described here in the P.S.I. is frankly a fairly

dangerous person. And if I were just to meet you without knowing

that about you, I wouldn’t guess that you had that kind of history. But

I know as the sentencing judge here that you do because I’ve seen that

P.S.I. So while I can certainly have some sympathy for you in the

description of your circumstances that you’ve given here in court, I

can’t ignore the things that I see in the P.S.I. And I have to sentence

you based on the totality of your circumstances, which includes all

those bad things that you bring forward. You have a very serious

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criminal history and that is a significant aggravating factor. And

further aggravation here is the fact that the defendant has a number of

serious drug charges which are being pled guilty to all at the same

time. This isn’t just one Class B Felony, it’s a number of different

serious felony convictions, drug related. So the serious history and the

number of offenses here are the primary aggravation. In terms of

mitigation, I think that Mr. Henderson, as he sits here today, is

sincerely remorseful for the situation in which he’s placed himself.

The defendant did plead guilty and accept responsibility here. It did

happen late in the process, it was at a trial readiness hearing which

happened just a few days before the scheduled jury trial. So it’s a little

bit different than someone who comes in a month or two (2) after their

initial hearing and takes responsibility right away. There was a period

of time that went by. But it’s still a mitigator and it should be

mentioned as a mitigator.… Yes, absolutely, there was not a benefit of

any protection from a plea agreement that limited his exposure here,

he simply pled guilty and that is certainly another important factor to

point out.… As mentioned by the parties, the defendant does have a

high IRAS score indicating a high risk of recidivism and a high need

for services. When I weigh these things out, the court does find that

the aggravation does outweigh the mitigation. Mr. Henderson, I don’t

have a high degree of optimism that community corrections alone here

would be adequate to address your needs so there is gonna be a

Department of Corrections component to this sentence. Sentences are

gonna be entered as follows: On the B Felony counts, Counts I and II,

defendant is sentenced to the Department of Corrections for sixteen

(16) years, of which twelve (12) years will be executed, the other four

(4) suspended and served on probation.… After the B’s we jump down

to the D Felony, Maintaining a Common Nuisance under Count III,

and there will be a two (2) year commitment to the DOC, all executed.

And Count IV, the A Misdemeanor, one (1) year in the DOC, all

executed. Counts run concurrently with each other for a total of

sixteen (16) years, twelve (12) executed and four (4) suspended.

Tr. pp. 37-39. The trial court’s oral sentencing statement, coupled with the

written sentencing order, make it clear that while the trial court did consider

Henderson’s high IRAS score when sentencing Henderson, the trial court did

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not specifically find the score to be an aggravating factor during sentencing.

Again, the Indiana Supreme Court has held that it is proper for the trial court to

consider such a score when crafting a defendant’s sentence.

[13] Furthermore, to the extent that Henderson claims that the trial court abused its

discretion in failing to find Henderson’s substance abuse to be a mitigating

factor, we observe that long-standing Indiana Supreme Court precedent

indicates that the trial court was not required to do so. See James v. State, 643

N.E.2d 321, 323 (Ind. 1994) (providing that a trial court is not required to

consider allegations of a defendant’s substance abuse as a mitigating

circumstance). Additionally, to the extent that Henderson also claims that the

trial court abused its discretion in applying weight to the aggravating and

mitigating factors, we observe that the Indiana Supreme Court has long held

that a trial court is not required to weigh or credit aggravating and mitigating

factors the way an appellant suggests it should be weighed or credited. Fugate,

608 N.E.2d at 1374. Because the trial court no longer has any obligation to

“weigh” aggravating and mitigating factors against each other when imposing a

sentence, unlike the pre-Blakely statutory regime, a trial court cannot now be

said to have abused its discretion in failing to “properly weigh” such factors.

Anglemyer, 868 N.E.2d at 491. As such, the trial court did not abuse its

discretion in sentencing Henderson.

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II. Appropriateness of Sentence

[14] Henderson also contends that his aggregate sixteen-year sentence is

inappropriate in light of the nature of his offenses and his character. Indiana

Appellate Rule 7(B) provides that “The Court may revise a sentence authorized

by statute 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.” In analyzing such claims, we “‘concentrate less on

comparing the facts of [the case at issue] to others, whether real or hypothetical,

and more on focusing on the nature, extent, and depravity of the offense for

which the defendant is being sentenced, and what it reveals about the

defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008)

(quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied).

The defendant bears the burden of persuading us that his sentence is

inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).

[15] With respect to the nature of Henderson’s offenses, the record demonstrates

that Henderson sold drugs out of his residence, which was within 1000 feet of a

public park. The search of Henderson’s residence revealed that he possessed

cocaine, heroin, and marijuana. He also possessed drug paraphernalia,

including digital scales and a ledger which contained customer names and

specific dollar amounts next to the customers’ names. The record revealed that

Henderson committed numerous offenses at once, and witnesses discovered in

or leaving Henderson’s apartment admitted to police that they had smoked

marijuana with Henderson in his residence on the day in question. One of

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these witnesses further admitted to police that he had purchased marijuana

from Henderson on many occasions. We find it troubling that Henderson was

not simply a “one time” offender, but rather was an active participant in the

sale of drugs in Madison County who repeatedly took drugs in and sold drugs

from his residence, which again was located within 1000 feet of a public park.

[16] Further, we disagree with Henderson’s assertion that the record indicates he is

of good character. Rather, we find that review of Henderson’s character is

troubling. Henderson points to the fact that he was steadily employed for a 10-

year period between 1996 and 2006. Henderson now relies on disability

benefits to provide support for his eight children. While there is no shame in

receiving disability benefits, these benefits appear to supplement the regular

income that Henderson receives in connection with his sale of drugs. In

addition, while Henderson did demonstrate remorse and accept responsibility

for his actions by pleading guilty, his decision to do so could easily be

considered to be a tactical decision as he waited until a short time before his

jury trial was scheduled to do so.

[17] Henderson also has an extensive criminal history which includes both felony

and misdemeanor convictions. Specifically, his criminal history includes

convictions for domestic battery, criminal confinement, intimidation, stalking,

resisting law enforcement, and contributing to a minor. His criminal history

also includes prior probation violations. In addition, at the time he committed

the instant offenses, Henderson was out on bond awaiting trial for felony

charges of strangulation, domestic battery, and criminal confinement, which

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reflects poorly on his character. Henderson’s criminal history indicates an

unwillingness to reform his behavior to conform to the rules of society. In light

of the facts surrounding the nature of Henderson’s offenses and his character,

we conclude that Henderson has failed to meet his burden of persuading us that

his aggregate sixteen-year sentence is inappropriate.

Conclusion

[18] In sum, we conclude that the trial court acted within its discretion in sentencing

Henderson and that Henderson failed to meet his burden of proving that his

aggregate sixteen-year sentence is inappropriate.

[19] The judgment of the trial court is affirmed.

Najam, J., and Mathias, J., concur.

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