Robert A. Ellington, III v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 22 2017, 9:41 am

this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals and Tax Court 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 Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Michael Gene Worden Richard C. Webster Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert A. Ellington, III, March 22, 2017 Appellant-Defendant, Court of Appeals Case No. 84A01-1608-CR-1755 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable David R. Bolk, Appellee-Plaintiff Judge Trial Court Cause Nos. 84D03-1508-F5-17871 84D03-1012-FB-3972

Mathias, Judge. Court of Appeals of Indiana | Memorandum Decision 84A01-1608-CR-1755 | March 22, 2017 Page 1 of 6 [1] Robert A. Ellington, III (“Ellington”), was on probation when he pleaded guilty

to a drug dealing felony. His probation was revoked, and the balance of his

previously suspended sentence was ordered executed in the Department of

Correction. Claiming this placement was inappropriate, Ellington appeals. [2] We affirm.

Facts and Procedural Posture [3] In 2012, Ellington pleaded guilty to Class B felony dealing cocaine and Class D

felony dealing marijuana (“the 2012 case”). The trial court sentenced Ellington

to a ten-year term, with time served executed and the balance suspended to

probation. On August 5, 2015, the State charged Ellington with four Level 6

felonies and one Class D misdemeanor for possessing and dealing marijuana,

and maintaining a common nuisance (“the 2015 case”). The next day, the State

asked for Ellington’s probation in the 2012 case to be revoked. [4] The 2012 and 2015 cases were consolidated, and a plea agreement covering

both cases was negotiated. For the 2015 case, Ellington agreed to plead guilty to

one count of Level 51 felony dealing marijuana in exchange for dismissal of the

remaining charges. Ellington agreed to a four-year sentence, reserving the right

to argue its terms. For the 2012 case, Ellington agreed to admit violating the

1 The State’s charging instruments do not charge a Level 5 felony. However, the State’s amended Count IV, the charge to which Ellington pleaded, Appellant’s App. p. 184, alleged that Ellington possessed more than thirty grams of marijuana with the intent to deliver it, after a conviction for dealing cocaine. Id. p. 17. Level 6 felony possession with intent to deliver, Ind. Code. § 35-48-4-10(c)(2)(A), is elevated to a Level 5 felony with “a prior conviction for a drug dealing offense,” id. § (d)(1)(A), as Ellington had in the 2012 case.

Court of Appeals of Indiana | Memorandum Decision 84A01-1608-CR-1755 | March 22, 2017 Page 2 of 6

terms of his probation and to execute the six-year balance of his previously

suspended sentence, again reserving the right to argue its terms. The sentences

would be served consecutively as required by statute. Ind. Code § 35-50-1-

2(e)(1). [5] On June 28, 2016, the trial court accepted the plea agreement. At a sentencing

hearing on July 25, 2016, the trial court heard Ellington’s evidence and both

parties’ arguments on the terms of the six-year sentence in the 2012 case and the

four-year sentence in the 2015 case. A presentence investigation report was

prepared but does not appear in the record before us.2 The State sought

execution of the six-year term in the Department of Correction and suspension

of the consecutive four-year term to probation. Ellington agreed with the State’s

recommendation as to the suspension of the four-year term but sought

placement in community corrections for the six-year term. [6] In support of community corrections placement, Ellington introduced an

evaluation of the Vigo County community corrections program finding him

appropriate for such placement and a receipt for payment of the program’s

initial fees. Ex. Vol., Def.’s Exs. A, p. 4, B, p. 13. Ellington also introduced

eight letters from family and friends, including a pastor and a detective of the

Indianapolis Metropolitan Police Department, all praising his character and his

earnest desire to better his circumstances. Id., Def.’s Ex. A., pp. 5-12. Finally,

2 Ellington’s appendix does, however, include the presentence investigation report from the 2012 case.

Court of Appeals of Indiana | Memorandum Decision 84A01-1608-CR-1755 | March 22, 2017 Page 3 of 6

Ellington’s grandmother, with whom he had lived before and hoped to continue

to live when placed in community corrections, testified that she would welcome

his placement with her and that Ellington needed some help managing his

prescribed antianxiety and antidepressant medications. Ellington’s father was

murdered when Ellington was young, and the presentence investigation report

disclosed what the trial court characterized as “mild cognitive issues.”

Sentencing Tr. p. 18. [7] Treating the consolidated 2012 and 2015 cases as one de novo sentencing

question, the trial court made a detailed statement of the aggravating and

mitigating factors it found. In aggravation, the court weighed Ellington’s

criminal history of seven misdemeanors and two felonies; occasional

noncompliance with the courts, including a failure to appear and

“disrespectfu[l]” behavior toward his probation officer, id. p. 17; and his failure

to take advantage of previous opportunities he had been given to avoid

incarceration, including arrests while on bond and on probation. In mitigation,

the court weighed Ellington’s mental health, “significant difficult issues in his

youth,” id. p. 18, and the outpouring of support from those who knew him. The

court also considered Ellington’s acceptance of responsibility in pleading guilty

but gave this little weight, in view of the plea agreement’s terms. [8] The trial court accepted the State’s recommendation as to the 2015 case and

suspended the four-year term to probation. As to the six-year balance of the

sentence in the 2012 case, the trial court committed Ellington to the

Department of Correction pending his completion of a “Purposeful

Court of Appeals of Indiana | Memorandum Decision 84A01-1608-CR-1755 | March 22, 2017 Page 4 of 6

Incarceration”3 program; “immediately upon successful completion of [the

program], . . . the balance of [Ellington’s] sentence would be suspended . . . to

probation.” Id. p. 19. [9] Ellington now appeals his placement in the Department of Correction as

inappropriate in light of the nature of his offense and of his character. The State

responds in Dickensian fashion that Ellington “needs a more restrictive

environment so that he might reform his character.” Appellee’s Br. p. 10.

Discussion and Decision [10] We have the power, granted by our constitution and implemented by the

Appellate Rules, 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.” Ind. Appellate Rule

7(B) (implementing Ind. Const. Art. 7, § 6). However, “this is not the correct

standard to apply when reviewing a sentence imposed for a probation

violation.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Thus, the remedy

3 “Purposeful Incarceration” is a program instituted by the Department of Correction and our trial courts:

In 2009 the Indiana Department of Correction (IDOC) began a cooperative project with Indiana Court Systems called Purposeful Incarceration (P.I.). The Department works in collaboration with Judges who can sentence chemically addicted offenders and document that they will “consider a sentence modification” should the offender successfully complete an IDOC Therapeutic community. This supports the Department and Correction and the Judiciary to get addicted offenders the treatment that they need and work collaboratively to support their successful re-entry into society. Purposeful Incarceration, Indiana Department of Correction, http://www.in.gov/idoc/2798.htm (last visited March 2, 2017); see also Marley v. State, 17 N.E.2d 335, 338 (Ind. Ct. App. 2014) (discussing same), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 84A01-1608-CR-1755 | March 22, 2017 Page 5 of 6

Ellington seeks is not available to him. Jones v. State, 885 N.E.2d 1286, 1290

(Ind. 2008). [11] Sentences or sanctions imposed for probation violations may be reviewed only

for abuse of the sentencing court’s discretion. Id. Ellington has not expressly or

impliedly challenged the sentencing court’s exercise of its discretion, and the

State argues that the issue is therefore waived. The State is correct. Jackson v.

State, 992 N.E.2d 926, 933 (Ind. Ct. App. 2013) (waiver of issue for failure to

present cogent argument), trans. denied. Even were we to review the court’s

exercise of its discretion, nothing in its careful weighing of aggravating and

mitigating factors, nor in its ultimate decision to commit Ellington to the

Department of Correction pending completion of a Purposeful Incarceration

program, would strike us as clearly against the logic and effect of the facts and

circumstances before the court. Berry v. State, 904 N.E.2d 365, 366 (Ind. Ct.

App. 2009) (standard of review for sentences following probation revocation;

analysis of Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007) does not apply).

Conclusion [12] Appellate Rule 7(B) revision is not available to Ellington. Even if Ellington had

argued the trial court abused its discretion, he would not have prevailed.

Ellington’s sentence is therefore affirmed. [13] Affirmed.

Baker, J., and Pyle, J, concur.

Court of Appeals of Indiana | Memorandum Decision 84A01-1608-CR-1755 | March 22, 2017 Page 6 of 6