Matt D. Niblick v. State of Indiana ( 2012 )

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
FILED
Oct 26 2012, 8:37 am
the defense of res judicata, collateral
estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK SMALL GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MATT D. NIBLICK, )
)
Appellant-Defendant, )
)
vs. ) No. 90A04-1203-CR-132
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WELLS CIRCUIT COURT
The Honorable Kenton W. Kiracofe, Judge
Cause No. 90C01-1110-FB-25
October 26, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
In 2011, Matt D. Niblick sold methamphetamine (“meth”) to a confidential informant
(“CI”) who was working with the local drug task force. The transaction was recorded, and
the State subsequently charged Niblick with class B felony meth dealing. Niblick pled guilty
via a plea agreement that left sentencing open to the trial court’s discretion, but set a fifteen-
year cap. At sentencing, the trial court noted Niblick’s extensive criminal record and
probation failures and sentenced him to a fifteen-year executed term.
Niblick appeals, claiming that his sentence is inappropriate in light of the nature of the
offense and his character. Finding that he has failed to meet his burden of establishing that
his sentence is inappropriate, we affirm.
Facts and Procedural History
In September 2011, a CI, acting in conjunction with the Adams/Wells Drug Task
Force, participated in a controlled meth buy from Niblick. The CI, who was wired with a
recording device, met Niblick at the designated spot, and Niblick sold him one gram of meth
for $80.
The State charged Niblick with one count of class B felony dealing in meth, which
carries a sentencing range of six to twenty years, with a ten-year advisory term, and which
was nonsuspendible due to his prior unrelated class B felony conviction for dealing in a
controlled substance.1 Niblick entered into a plea agreement pursuant to which he agreed to
plead guilty as charged in exchange for open sentencing with a sentence cap of fifteen years.
1
Ind. Code §§ 35-50-2-5, 35-50-2-2(b)(1).
2
At sentencing, the trial court found that there were no mitigating circumstances and that
Niblick’s extensive criminal history, which spanned from age nine to age thirty-one, and his
repeated failure to comply with alternative sentencing arrangements amounted to aggravating
circumstances sufficient to justify a fifteen-year executed term.
Niblick now appeals.2 Additional facts will be provided as necessary.
Discussion and Decision
Niblick contends that the trial court erred in sentencing him to a fifteen-year term.
Although he uses “abuse of discretion” terminology, he essentially argues that the trial court
imposed an inappropriate sentence under Indiana Appellate Rule 7(B), which states that we
“may revise a sentence authorized by statute if, after due consideration of the trial court’s
decision, [this] Court finds that the sentence is inappropriate in light of the nature of the
offense and the character of the offender.” When a defendant requests appellate review and
revision of his sentence, we have the power to affirm, reduce, or increase the sentence.
Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, we do not look
to see whether the defendant’s sentence is appropriate or if another sentence might be more
appropriate; rather, the test is whether the sentence is “inappropriate.” Fonner v. State, 876
N.E.2d 340, 344 (Ind. Ct. App. 2007). A defendant bears the burden of persuading this Court
that his sentence meets the inappropriateness standard. Anglemyer v. State, 868 N.E.2d 482,
2
We note that Niblick’s plea agreement contains a waiver provision, and that in signing the plea
agreement, he acknowledged that he was waiving his right to appeal his sentence. Holloway v. State, 950
N.E.2d 803, 805 (Ind. Ct. App. 2011). However, because sentencing was left open to the trial court’s
discretion, subject to the fifteen-year cap, and because the trial court, prosecutor, and defense counsel advised
Niblick at his guilty plea and sentencing hearings that he had the right to appeal his sentence, we find, and the
State properly concedes, that his signed waiver cannot be enforced. Id. at 805-06.
3
490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218; Childress v. State, 848 N.E.2d 1073,
1080 (Ind. 2006).
In considering the nature of a defendant’s offense, “the advisory sentence is the
starting point the Legislature has selected as an appropriate sentence.” Anglemyer, 868
N.E.2d at 494. Niblick was sentenced to fifteen years for class B felony meth dealing, which
carries a six-to-twenty-year sentencing range and a ten-year advisory term. Ind. Code § 35-
50-2-5. He characterizes his offense as an innocuous one in which he sold a miniscule
amount of meth to a needy user in a friendly, nonviolent transaction. We agree that his
offense was not particularly egregious in nature, but we must also consider his character.
Niblick’s extensive criminal history and repeated noncompliance with alternative
sentencing options bespeak an extremely unsavory character. His criminal record spans two
decades, beginning with a criminal mischief adjudication at age nine, and runs the gamut
from numerous misdemeanor convictions for resisting law enforcement, battery, and alcohol-
related convictions to a 2003 class B felony conviction for dealing in a controlled substance.3
He is a frequent flyer in the criminal justice system who has been in and out of juvenile
detention and the Department of Correction since age thirteen. He cites one successful
completion of probation as evidence of his good character, but his history of parole,
3
Niblick argues that because he has fully served his sentences for his prior offenses, those offenses
cannot now be considered in sentencing based on double jeopardy considerations. However, he has waived
the issue for failure to develop a cogent argument with citations to authority. Ind. Appellate Rule 46(A)(8).
Notwithstanding, we note that he is mistaken in invoking double jeopardy because sentence enhancements
based on prior criminal convictions do not constitute multiple punishments in violation of constitutional
protections against double jeopardy. St. John v. State, 529 N.E.2d 371, 379 (Ind. Ct. App. 1988), trans. denied
(1989).
4
community correction, and probation violations indicates an overall pattern of
noncompliance. He also asks that we give favorable consideration to the fact that most of his
prior offenses have been nonviolent alcohol- or drug-related offenses. His record does
include a lengthy string of such offenses, but it also includes a juvenile adjudication for
battery resulting in bodily injury, an adult domestic battery conviction, and two adult
convictions for battery resulting in bodily injury. Moreover, his adult conviction and juvenile
adjudication for resisting law enforcement demonstrate his disrespect not only for society’s
laws, but also for the officers charged with enforcing those laws. Simply put, his pattern of
disregard for the law, disrespect of law enforcement, and abuse of the leniency previously
afforded him indicates a persistent failure to learn from his mistakes. Based on the
foregoing, we find that Niblick has failed to meet his burden of demonstrating that his
sentence is inappropriate. Accordingly, we affirm.
Affirmed.
RILEY, J., and BAILEY, J., concur.
5