MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Jul 24 2018, 10:04 am

court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
John T. Wilson                                            Curtis T. Hill, Jr.
Anderson, Indiana                                         Attorney General of Indiana

                                                          Michael Gene Worden
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Andrew C. Abbott,                                        July 24, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-670
        v.                                               Appeal from the Henry Circuit
                                                         Court
State of Indiana,                                        The Honorable David L. McCord,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         33C03-1702-F6-85



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-670 | July 24, 2018                    Page 1 of 8
[1]   Andrew Abbott appeals his sentence for possession of methamphetamine as a

      level 6 felony. Abbott raises one issue which we revise and restate as whether

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

      character. We affirm Abbott’s sentence but remand with instructions that the

      trial court attach his habitual offender enhancement to his sentence for

      possession of methamphetamine as a level 6 felony.


                                      Facts and Procedural History

[2]   On February 27, 2017, Abbott knowingly and intentionally possessed

      methamphetamine in Henry County, Indiana. On that date, New Castle police

      officers were investigating a possible theft and stopped him. He allowed the

      officers to search him, and they found two baggies of a white substance and

      other paraphernalia in his pockets. Abbott admitted, and field testing showed,

      that the substance was methamphetamine.


[3]   The State charged Abbott with possession of methamphetamine as a level 6

      felony under Count I and possession of paraphernalia as a class C misdemeanor

      under Count II, and it alleged that he was an habitual offender. Abbott and the

      State entered into a plea agreement which provided that the class C

      misdemeanor would be dismissed and that:


                    In consideration of [Abbott] pleading guilty to the
              offense(s) of: Count I, Possession of Methamphetamine, Level 6
              Felony, and admit to the Habitual Felony Offender
              Enhancement, the State agrees that if the Court accepts this
              agreement, the Court shall sentence defendant as follows:



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-670 | July 24, 2018   Page 2 of 8
                    Count I - Court costs. The state recommends [Abbott] be
              sentenced to two (2) years to the Indiana Department of
              Correction[s].

                    Habitual Felony Offender Enhancement - [Abbott] be
              sentenced to two (2) years to the Indiana Department of
              Correction[s].

                    The Court will be free to assess any sentence within the
              range of possibilities greater than the recommended sentence.
              The parties agree that the additional sentence over the
              recommended sentence will be suspended.

                     [Abbott] will be free to advocate a lesser sentence and the
              Court will be free to impose a sentence lesser than the State’s
              recommended sentence; and may use any sentence options to
              include imprisonment, treatment as a Class A Misdemeanor,
              direct commitment to Community Corrections to include in-
              home detention or work release, or suspend any or all with
              formal probation.


      Appellant’s Appendix Volume II at 38. Abbott pled guilty to Count I and

      admitted to being an habitual offender pursuant to the plea agreement.


[4]   At sentencing on December 4, 2017, he testified that he was employed and was

      in a temporarily laid-off position. He presented a paystub showing his

      employment and a drug screen result form dated October 31, 2017, stating that

      the reason for the test was pre-employment and that the results were negative

      for all drugs tested. He indicated he received a certificate of completion of the

      New Castle IOP treatment program, and stated that, if the court found

      community corrections placement was appropriate, he had a place to live, and

      that, until his employer called him back, he was doing side work in

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-670 | July 24, 2018   Page 3 of 8
      construction. Shannon Giselle, when asked about her connection with Abbott,

      testified “[w]e’ve been friends for four years and the last nine months, we’ve

      been hanging out again and I’ve been hiring him to help me do some

      remodeling work for the place I’m renting.” Transcript Volume II at 16. When

      asked how long the employment would continue, she replied “I have work for

      the next two years.” Id. at 17.


[5]   Abbott’s defense counsel requested that he be placed in community corrections.

      The prosecutor stated that, based on Abbott’s criminal history, the State was

      asking that he be sentenced to two years on Count I enhanced by two years due

      to being an habitual offender. Abbott apologized for breaking the law and

      stated that he never had a drug problem until he was forty years old, that he

      sought treatment, and that he no longer had a drug issue.


[6]   The trial court found Abbott’s criminal history and his high risk to reoffend to

      be aggravating circumstances. It also noted that Abbott signed a plea

      agreement with a somewhat open sentence and a cap. It sentenced him to two

      years for his conviction for possession of methamphetamine under Count I and

      to two years for being an habitual offender under Count III, and it ordered that

      the sentence under Count III be served consecutive to the sentence under Count

      I.


                                                   Discussion

[7]   The issue is whether Abbott’s sentence is inappropriate in light of the nature of

      the offense and his character. Ind. Appellate Rule 7(B) provides that we “may


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-670 | July 24, 2018   Page 4 of 8
       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).


[8]    Abbott argues his sentence is inappropriate and the court failed to consider

       alternatives to incarceration. He argues that his guilty plea was an acceptance

       of responsibility and is indicative of his character. He also points to his

       employment history and substance abuse treatment. The State responds that

       the sentence was less than the maximum and was a sentence to which Abbott

       had agreed. It also points to Abbott’s multiple contacts with the criminal justice

       system over many years and his admission that the crime resulted from his

       substance abuse.


[9]    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 § 35-50-2-8

       provides in part that the court shall sentence a person convicted of a level 6

       felony and found to be an habitual offender to an additional nonsuspendible

       fixed term between two years and six years.


[10]   Our review of the nature of the offense reveals that Abbott knowingly and

       intentionally possessed methamphetamine. Officers discovered two baggies of

       methamphetamine in his pockets. Our review of the character of the offender


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-670 | July 24, 2018   Page 5 of 8
       reveals that Abbott, who was born in August 1976, pled guilty pursuant to the

       plea agreement to possession of methamphetamine as a level 6 felony under

       Count I and admitted to being an habitual offender, and in exchange the State

       dismissed the charge of possession of paraphernalia as a class C misdemeanor

       and recommended a sentence of two years on Count I and an enhancement of

       two years for being an habitual offender. The presentence investigation report

       (“PSI”) indicates that Abbott’s juvenile criminal history includes charges for

       burglary and resisting law enforcement in 1991 and delinquent adjudications for

       theft as a class C felony if committed by an adult and resisting law enforcement

       as a class D felony if committed by an adult in 1993. The PSI further indicates

       that his adult criminal history includes convictions for criminal mischief,

       resisting law enforcement and minor consuming alcohol in January 1995;

       trespass and minor consuming alcohol in May 1995; trespass, possession of

       marijuana, and possession of schedule I, II, III, or IV controlled substance in

       June 1995; burglary in October 1995 for which he was sentenced to eight years;

       four counts of burglary in May 2000 for which he was sentenced to an

       aggregate term of sixteen years; escape in July 2000; receiving stolen property

       and trespass in December 2010; and visiting a common nuisance in March 2016

       and in September 2016.


[11]   In addition, the PSI indicates that Abbott was employed by a tree service, that

       he reported his first use of alcohol and marijuana was at the age of fifteen, his

       last use of marijuana was a couple of months ago, he had also used speed,

       methamphetamines, heroin, pain pills, and nerve pills and that his last use was


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-670 | July 24, 2018   Page 6 of 8
       a couple of months ago, and that he reported using these drugs on a weekly

       basis. Abbott stated he was currently in IOP. The PSI also indicates that his

       overall risk assessment score using the Indiana risk assessment system places

       him in the high risk to reoffend category. After due consideration, we conclude

       that Abbott has not sustained his burden of establishing that his sentence is

       inappropriate in light of the nature of the offense and his character.1


[12]   While we affirm Abbott’s aggregate sentence, we observe that the trial court

       erroneously entered a separate two-year sentence for the habitual offender

       finding to be served consecutive to the sentence for his conviction under Count

       I. An habitual offender finding does not constitute a separate crime, nor does it

       result in a separate sentence. See Ind. Code § 35-50-2-8. Rather, an habitual

       offender finding results in a sentence enhancement imposed upon the

       conviction of a subsequent felony. Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind.

       2001). Pursuant to Ind. Code § 35-50-2-8, we remand with instructions that the

       trial court vacate the separate sentence on the habitual offender finding and

       attach the enhancement to Abbott’s sentence for possession of




       1
         To the extent Abbott argues the trial court abused its discretion in sentencing him, we need not address this
       issue because we find that his sentence is not inappropriate under Ind. Appellate Rule 7(B). See Chappell v.
       State, 966 N.E.2d 124, 134 n.10 (Ind. Ct. App. 2012) (noting that any error in failing to consider the
       defendant’s guilty plea as a mitigating factor is harmless if the sentence is not inappropriate) (citing Windhorst
       v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that, in the absence of a proper sentencing order, Indiana
       appellate courts may either remand for resentencing or exercise their authority to review the sentence
       pursuant to Ind. Appellate Rule 7(B)), reh’g denied; Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007)
       (noting that, “even if the trial court is found to have abused its discretion in the process it used to sentence the
       defendant, the error is harmless if the sentence imposed was not inappropriate”), trans. denied), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-670 | July 24, 2018                            Page 7 of 8
       methamphetamine as a level 6 felony under Count I and amend the sentencing

       order and abstract of judgment accordingly.2


                                                         Conclusion

[13]   For the foregoing reasons, we affirm Abbott’s sentence and remand for entry of

       an amended sentencing order and abstract of judgment.


[14]   Affirmed and remanded.


       Robb, J., and Altice, J., concur.




       2
           This will not impact the length of Abbott’s aggregate sentence.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-670 | July 24, 2018   Page 8 of 8
