Lewis James Martin v. State of Indiana (mem. dec.)

      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                                 FILED
      regarded as precedent or cited before any                                         Oct 14 2020, 8:33 am

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


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      David W. Stone IV                                        Curtis T. Hill, Jr.
      Anderson, Indiana                                        Attorney General of Indiana

                                                               Steven Hosler
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Lewis James Martin,                                      October 14, 2020
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               20A-CR-348
              v.                                               Appeal from the Madison Circuit
                                                               Court
      State of Indiana,                                        The Honorable David Happe,
      Appellee-Plaintiff                                       Judge
                                                               Trial Court Cause No.
                                                               48C04-1807-F2-1836



      May, Judge.

[1]   Lewis James Martin a/k/a Andolian Juan Ochoa-Napraja appeals his

      aggregate twenty-four year sentence following his convictions of Level 2 felony


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-348 | October 14, 2020                    Page 1 of 11
      conspiracy to commit dealing in a narcotic drug, 1 Level 3 felony dealing in

      methamphetamine, 2 two counts of Level 3 felony dealing in a narcotic drug, 3

      and Level 4 felony dealing in a narcotic drug. 4 He raises two issues on appeal,

      which we revise and restate as: (1) whether the trial court abused its discretion

      in imposing Martin’s sentence by considering improper aggravating factors and

      omitting a mitigating factor supported by the record; and (2) whether Martin’s

      aggregate sentence is inappropriate given the nature of his offenses and his

      character. We affirm.



                                Facts and Procedural History
[2]   In June and July of 2018, the Madison County Drug Task Force used

      confidential informants to conduct a series of four controlled-buy operations

      targeting Martin. On June 20, 2018, Martin agreed to deliver six grams of

      heroin to a confidential informant in exchange for $600.00, and he delivered a

      substance purported to be heroin to the confidential informant. On June 27,

      2018, Martin agreed to deliver five grams of heroin to a confidential informant

      in exchange for $500.00, and he subsequently delivered a substance to the

      confidential informant. Similarly, on July 5, 2018, Martin agreed to sell five




      1
          Ind. Code § 35-48-4-1(a)(1)(c), Ind. Code § 35-48-4-1(e)(3), & Ind. Code § 35-41-5-2.
      2
          Ind. Code § 35-48-4-1.1.
      3
          Ind. Code § 35-48-4-1(a)(1)(C) & Ind. Code § 35-48-4-1(d)(1).
      4
          Ind. Code § 35-48-4-1(a)(1)(C) & Ind. Code § 35-48-4-1(c)(1).


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-348 | October 14, 2020             Page 2 of 11
      grams of heroin to a confidential informant for $400, and he delivered a

      substance to the confidential informant. In each of these three controlled-buy

      operations, Martin delivered fentanyl to the confidential informants rather than

      heroin. On July 18, 2018, Martin sold approximately six-and-one-half grams of

      methamphetamine to a confidential informant.

[3]   Police arrested Martin in Detroit, Michigan, on August 3, 2018, and he was

      later extradited to Indiana. The State initially charged Martin with Level 2

      felony dealing in a narcotic drug and Level 3 felony dealing in

      methamphetamine. 5 The State later amended the charging information to

      convert the Level 2 dealing in a narcotic drug charge to a Level 2 felony

      conspiracy to commit dealing in a narcotic drug charge, and the State added

      two counts of Level 3 felony dealing in a narcotic drug and one count of Level 4

      felony dealing in a narcotic drug. Martin moved for a reduction in his bond,

      and the trial court held a hearing on Martin’s motion on May 28, 2019. At the

      hearing, Martin acknowledged that he was on parole from federal charges in

      Michigan when he was arrested in the instant case. He explained the federal

      charges stemmed from his robbery of an armored car. He described himself as

      a former “King Pin” and explained that he used the proceeds from the robbery




      5
       The State also filed a notice of intent to file a habitual offender sentence enhancement pursuant to Indiana
      Code section 35-50-2-8, but the State later moved to dismiss the habitual offender count after determining
      Martin did not qualify for the habitual offender enhancement.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-348 | October 14, 2020                   Page 3 of 11
      to finance his drug dealing operation. (Tr. Vol. II at 22.) The court

      subsequently denied Martin’s motion for a bond reduction.

[4]   The court held a change of plea hearing on November 22, 2019, but the court

      refused to accept Martin’s guilty plea after he contested the factual basis given

      by the State. The court held a second change of plea hearing on November 27,

      2019, and the court accepted Martin’s guilty plea at that hearing. The court

      held a sentencing hearing on January 14, 2020. Martin’s Pre-Sentence

      Investigation report indicated multiple previous felony convictions, including

      armed robbery, bank robbery, and discharging a firearm during a federal crime

      of violence. Martin testified that all of these convictions stemmed from a single

      incident, his robbery of the armored car, but some of the charges were brought

      against him in Michigan state court and other charges were brought against him

      in federal court. Martin also testified that his father was Pablo Escobar’s right-

      hand man and that Martin receives royalties from a book he self-published in

      2015. Martin described the book as a memoir depicting his drug-dealing

      lifestyle, his attempt to leave that lifestyle behind, and “people pulling [him]

      back into it.” (Id. at 138.)


[5]   The court sentenced Martin to a term of twenty-four years in the Indiana

      Department of Correction on the Level 2 felony conspiracy to commit dealing

      in a narcotic drug. The court also sentenced Martin to a term of fifteen years on

      each of his Level 3 felony dealing in a narcotic drug convictions, fifteen years

      on his Level 3 felony dealing in methamphetamine conviction and eight years

      on his Level 4 felony dealing in a narcotic drug conviction. The court ordered

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-348 | October 14, 2020   Page 4 of 11
      Martin to serve the sentences concurrently, for an aggregate term of twenty-four

      years. In pronouncing sentence, the court noted Madison County had been

      “very hard hit” by crime, overdoses, and other problems stemming from illegal

      drug use in the community. (Id. at 157.) The court listed Martin’s prior

      criminal history, his history of uncharged criminal activity, and his being under

      court supervision at the time of the instant offenses as aggravating factors. The

      court did credit Martin’s decision to accept responsibility and plead guilty as a

      mitigating factor, but the court found the aggravating factors heavily

      outweighed that mitigating factor.



                                 Discussion and Decision
                                       I. Abuse of Discretion
[6]   Sentencing decisions rest within the sound discretion of the trial court, and we

      review such decisions for an abuse of discretion. Hudson v. State, 

135 N.E.3d 973

, 979 (Ind. Ct. App. 2019). “An abuse of discretion will be found where 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. For example, a

trial court may abuse its discretion by:


              (1) failing to enter a sentencing statement at all; (2) entering a
              sentencing statement that includes aggravating and mitigating
              factors that are unsupported by the record; (3) entering a
              sentencing statement that omits reasons that are clearly
              supported by the record; or (4) entering a sentencing statement
              that includes reasons that are improper as a matter of law.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-348 | October 14, 2020   Page 5 of 11

Id. “In cases where

the trial court has abused its discretion, we will remand for

      resentencing only ‘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.’” Bryant v. State, 

959 N.E.2d 315

, 322 (Ind. Ct. App.

      2011) (quoting Anglemyer v. State, 

868 N.E.2d 482

, 491 (Ind. 2007), clarified on

      reh’g 

875 N.E.2d 218

(Ind. 2007)).


[7]   Martin argues the trial court considered an impermissible aggravating factor

      when it pointed to Martin’s description of drug dealing in his book as evidence

      of uncharged criminal conduct. A trial court may consider uncharged criminal

      conduct by the defendant in imposing sentence. Carter v. State, 

771 N.E.2d 835

,

      840 (Ind. 1999). While Martin’s book was not introduced into evidence,

      Martin testified that the book included descriptions of past drug dealing, and he

      commented about his past success as a drug dealer during the hearing on his

      motion for a bond reduction. As the trial court explained during sentencing,

      “The defendant has acknowledged, yeah, I was a dealer. So he didn’t just

      become a dealer when he came to Anderson, this was a way of life for him that

      he had known from before, that he continued here.” (Tr. Vol. II at 158.)

      Therefore, the trial court did not abuse its discretion in considering Martin’s

      uncharged criminal conduct as an aggravating factor in imposing sentence. See

      

Carter, 771 N.E.2d at 840

(holding “the trial court did not abuse its discretion in

      considering Carter’s attempted molestation of his sister as an aggravating

      circumstance”).




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-348 | October 14, 2020   Page 6 of 11
[8]   Martin also contends the trial court impermissibly took an element of the

      dealing offense itself and used it as an aggravating factor. An advisory sentence

      represents the legislature’s assessment of the appropriate punishment for the

      typical version of an offense, 

Anglemyer, 868 N.E.2d at 494

, and drug dealing is

      inherently an offense against society. See Illegal Drug, Black’s Law Dictionary

      (11th ed. 2019) (“A drug whose toxicity or side-effects outweigh its therapeutic

      usefulness (if any), making it necessary to protect the public health and welfare

      by outlawing its manufacture, export, import, distribution, possession, or

      use.”).

[9]   However, we disagree with Martin’s assertion that the trial court considered the

      societal harms caused by drugs as an aggravating factor in imposing sentence.

      The trial court did comment on the societal harms that drugs cause, but the trial

      court did so in an effort to illustrate why “the Legislature treats this kind of

      conduct so seriously.” (Tr. Vol. II at 156.) The court did not specifically

      identify the societal harms caused by drugs as an aggravating factor in its oral

      sentencing statement, nor did the trial court list them among the aggravating

      factors in its sentencing order. (App. Vol. II at 19) (“Court finds aggravation: 1)

      Prior criminal history; 2) Uncharged criminal conduct; 3) Violated court

      supervision.”). Further, even if the trial court relied on an improper

      aggravating factor, that “does not invalidate the sentence if other valid

      aggravators exist and the invalid aggravator did not play a significant role in the

      trial court’s decision.” Hart v. State, 

829 N.E.2d 541

, 543-544 (Ind. Ct. App.

      2005). In the case at bar, the three aggravating factors listed in the trial court’s


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-348 | October 14, 2020   Page 7 of 11
       sentencing order support an aggravated sentence. See Scott v. State, 

840 N.E.2d 376

, 384 (Ind. Ct. App. 2006) (affirming defendant’s sentence and explaining

       “we can state with confidence that the trial court would have imposed the same

       sentence if it considered the proper aggravating and mitigating circumstances”),

       trans. denied.


[10]   At his sentencing hearing, Martin stated, “I apologize for my actions” (Tr. Vol.

       II at 132), and he argues on appeal that the trial court abused its discretion by

       not addressing this expression of remorse in its sentencing statement. The trial

       court is not required to accept the defendant’s arguments regarding what

       constitutes a mitigating factor or assign proposed mitigating factors the same

       weight as the defendant. Flickner v. State, 

908 N.E.2d 270

, 273 (Ind. Ct. App.

       2009). “The trial court is not obligated to explain why it did not find a factor to

       be significantly mitigating.” Sherwood v. State, 

749 N.E.2d 36

, 38 (Ind. 2001).

       We have previously observed that a “trial court’s determination of a

       defendant’s remorse is similar to its determination of credibility: without

       evidence of some impermissible consideration by the trial court, we accept its

       decision.” Sandleben v. State, 

29 N.E.3d 126

, 136 (Ind. Ct. App. 2015), trans.

       denied. We hold that the trial court did not abuse its discretion by not

       addressing Martin’s apology because it was not required to do so, and there is

       no evidence the trial court relied on some impermissible consideration to

       discount Martin’s expression of remorse. See

id. (holding trial court

did not

       abuse its discretion by failing to consider defendant’s alleged remorse as a

       mitigating factor).

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-348 | October 14, 2020   Page 8 of 11
                               II. Inappropriateness of Sentence
[11]   We evaluate inappropriate sentence claims using a well-settled standard of

       review.


               We “may revise a sentence authorized by statute if, after due
               consideration of the trial court’s decision, [we find] the sentence
               is inappropriate in light of the nature of the offense and the
               character of the offender.” Ind. App. R. 7(B). Our role in
               reviewing a sentence pursuant to Appellate Rule 7(B) “should be
               to attempt to leaven the outliers, and identify some guiding
               principles for the trial courts and those charged with
               improvement of the sentencing statutes, but not to achieve a
               perceived ‘correct’ result in each case.” Cardwell v. State, 

895 N.E.2d 1219

, 1225 (Ind. 2008). “The defendant bears the burden
               of persuading this court that his or her sentence is inappropriate.”
               Kunberger v. State, 

46 N.E.3d 966

, 972 (Ind. Ct. App. 2015).
               “Whether a sentence is inappropriate ultimately turns on the
               culpability of the defendant, the severity of the crime, the damage
               done to others, and a myriad of other factors that come to light in
               a given case.” Thompson v. State, 

5 N.E.3d 383

, 391 (Ind. Ct.
               App. 2014).


       Belcher v. State, 

138 N.E.3d 318

, 328 (Ind. Ct. App. 2019), trans. denied.


[12]   When considering the nature of the offense, we first look to the advisory

       sentence for the crime. 

Anglemyer, 868 N.E.2d at 494

. A Level 2 felony is

       punishable by imprisonment for a term between ten years and thirty years, with

       the advisory sentence being seventeen and one-half years. Ind. Code § 35-50-2-

       4.5. A Level 3 felony carries a penalty of between three years and sixteen years

       in prison, with the advisory sentence being nine years. Ind. Code § 35-50-2-5.

       The court may sentence a person convicted of a Level 4 felony to a term of

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-348 | October 14, 2020   Page 9 of 11
       imprisonment between two and twelve years, with the advisory sentence being

       six years. Ind. Code § 35-50-2-5.5.

[13]   Martin argues his crimes were not “remarkable or particularly egregious.”

       (Appellant’s Br. at 14.) However, we disagree. Martin did not commit himself

       to rehabilitation following his incarceration in Michigan. Instead, he

       committed the instant offenses. Martin sold drugs to confidential informants

       multiple times throughout the course of the investigation. He also sold larger

       quantities of illegal drugs than necessary to satisfy the elements of the charged

       offenses. For example, Martin sold 6.53 grams of methamphetamine when

       Indiana Code section 35-48-4-1.1 requires the defendant sell only five grams of

       methamphetamine to be found guilty of Level 3 felony dealing in

       methamphetamine.

[14]   Regarding Martin’s character, we look at his criminal history. Johnson v. State,

       

986 N.E.2d 852

, 857 (Ind. Ct. App. 2013). “The significance of criminal

       history varies based on the gravity, nature, and number of prior offenses in

       relation to the current offense.”

Id. Martin had been

convicted of multiple

       crimes before committing the instant offenses. He served over a decade in the

       Michigan prison system for armed robbery, and he was convicted in federal

       court of bank robbery and discharging a firearm during a federal crime of

       violence. In fact, Martin was on parole for those crimes when he committed

       the instant offenses. Martin had also been charged in Michigan with several

       offenses, including assault on a prison employee and escape, with the charges

       later being dismissed. See Harlan v. State, 

971 N.E.2d 163

, 170 (Ind. Ct. App.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-348 | October 14, 2020   Page 10 of 11
       2012) (“Allegations of prior criminal activity need not be reduced to conviction

       before they may be properly considered as aggravating circumstances by a

       sentencing court.”). Therefore, we hold Martin’s sentence is not inappropriate

       given the nature of his offenses and his character. See Reis v. State, 

88 N.E.3d 1099

, 1106 (Ind. Ct. App. 2017) (holding sentence not inappropriate given

       defendant’s lengthy criminal history and nature of his crimes).



                                               Conclusion
[15]   The trial court did not abuse its discretion by considering uncharged criminal

       conduct Martin described in his book as an aggravating factor in imposing

       sentence. The trial court also did not abuse its discretion by failing to credit

       Martin’s expression of remorse as a mitigating factor. Martin’s violent criminal

       history, commission of the instant offenses while under court supervision, and

       continued drug dealing demonstrate his sentence is not inappropriate.

       Therefore, we affirm the trial court.

[16]   Affirmed.

       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-348 | October 14, 2020   Page 11 of 11

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