George Layton v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Feb 04 2015, 9:42 am
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
Jeffrey E. Stratman Gregory F. Zoeller
Aurora, Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
George Layton, February 4, 2015
Appellant-Defendant, Court of Appeals Cause No.
58A05-1406-CR-292
v. Appeal from the Ohio Circuit Court
The Honorable James D. Humphrey
58C01-1309-FA-004
State of Indiana,
Appellee-Plaintiff
Bailey, Judge.
Case Summary
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[1] George Layton (“Layton”) pled guilty to one count of Conspiracy to Commit
Dealing Methamphetamine, as a Class B felony,1 and was sentenced to fourteen
years imprisonment, with the term run consecutively to a sixteen-year term of
imprisonment in another case. He now appeals, raising for our review the sole
issue of whether his sentence is inappropriate.
[2] We affirm.
Facts and Procedural History
[3] On September 8, 2013, in Aurora, police stopped a vehicle driven by Randy
Sewell (“Sewell”); Layton was a passenger in the vehicle. An inventory search
of Sewell’s vehicle recovered large amounts of methamphetamine precursors,
including fifteen-thousand matches, fifteen bottles of iodine tincture, two bottles
of hydrogen peroxide, a can of acetone, and plastic tubing. A second search of
the vehicle also recovered a box of pseudoephedrine tablets. All of these items
are associated with a specific procedure for manufacturing methamphetamine.
All of the car’s occupants were arrested.
1
Ind. Code §§ 35-48-4-1.1(a) & 35-41-5-2(a). The Indiana General Assembly revised substantial portions of
the criminal code, including the offenses involved in this case, effective July 1, 2014. We refer in this case to
the substantive provisions of the Indiana Code in effect at the time of Layton’s offense.
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[4] An investigation into Layton’s activities ensued and revealed that on the day of
the arrest, Layton had purchased fifteen bottles of iodine tincture and two
bottles of hydrogen peroxide in Dearborn County. Prior to this, from August
16 to September 3, 2013, Layton had purchased a total of 4.8 grams of
pseudoephedrine in Lawrenceburg, Dearborn County. On September 7, 2013,
the day prior to the arrest, Layton had also attempted to purchase
pseudoephedrine in West Virginia.
[5] Police also obtained a search warrant for Sewell’s home. A search of the home
discovered evidence of methamphetamine manufacture and use, and statements
by the others arrested with Layton indicated that Layton had used
methamphetamine in the home.
[6] On September 10, 2013, alongside his co-defendants, Layton was charged with
two counts of Conspiracy to Commit Dealing Methamphetamine, as Class A
felonies.2 On December 9, 2013, the State alleged Layton to be a Habitual
Offender.3
2
I.C. §§ 35-48-4-1.1 & 35-41-5-2.
3
I.C. § 35-50-2-8.
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[7] On February 6, 2014, Layton and the State entered into a plea agreement under
which Layton agreed to plead guilty to Conspiracy to Commit Dealing
Methamphetamine, as a Class B felony. The State agreed to dismiss both the
two counts of Conspiracy to Commit Dealing Methamphetamine, as Class A
felonies, and the Habitual Offender enhancement. Sentencing was left to the
trial court’s discretion.
[8] On February 7, 2014, the trial court accepted Layton’s guilty plea, entered a
judgment of conviction against him, and ordered the completion of a
presentence investigation.
[9] Prior to entering a guilty plea in the instant case, Layton had entered a guilty
plea to Conspiracy to Commit Dealing Methamphetamine in Dearborn County
in Cause Number 15D01-1309-FA-0020 (“FA-20”), which plea was related to
the transactions that took place in Lawrenceburg. On February 28, 2014,
Layton was sentenced to sixteen years imprisonment in FA-20.
[10] On March 21, 2014, a sentencing hearing was conducted in the instant
proceeding. The trial court sentenced Layton to fourteen years imprisonment,
with his sentence to run consecutively to the sixteen-year term provided for in
FA-20.
[11] This appeal ensued.
Discussion and Decision
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[12] Layton contends that his sentence is inappropriate in light of the nature of his
offense and his character.
[13] The authority granted to this Court by Article 7, § 6 of the Indiana Constitution
permitting appellate review and revision of criminal sentences is implemented
through Appellate Rule 7(B), which provides: “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.” Under this rule, and as
interpreted by case law, appellate courts may revise sentences after due
consideration of the trial court’s decision, if the sentence is found to be
inappropriate in light of the nature of the offense and the character of the
offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,
798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to
attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.
[14] Here, Layton was convicted of Conspiracy to Commit Dealing
Methamphetamine, as a Class B felony. The sentencing range for a Class B
felony runs from six to twenty years, with an advisory term of ten years. I.C. §
35-50-2-5.
[15] Here, Layton was sentenced to fourteen years imprisonment, with that term to
run consecutively to the sixteen-year sentence in FA-20. The fourteen year
term in this case was the maximum term to which he could have been
sentenced under Indiana Code section 35-50-1-2, which governs the length and
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application of consecutive terms of imprisonment. The statute provides, in
relevant part:
Except as provided in subsection (d) or (e), the court shall determine
whether terms of imprisonment shall be served concurrently or
consecutively. The court may consider the:
(1) aggravating circumstances in IC 35-38-1-7.1(a); and
(2) mitigating circumstances in IC 35-38-1-7.1(b);
in making a determination under this subsection. The court may order
terms of imprisonment to be served consecutively even if the sentences
are not imposed at the same time. However, except for crimes of
violence, the total of the consecutive terms of imprisonment, exclusive
of terms of imprisonment under IC 35-50-2-8 and IC 35-50-2-10 to
which the defendant is sentenced for felony convictions arising out of
an episode of criminal conduct shall not exceed the advisory sentence
for a felony which is one (1) class of felony higher than the most
serious of the felonies for which the person has been convicted.
I.C. § 35-50-1-2(c).
[16] The State and Layton agreed that Layton’s offense in this case arose “out of an
episode of criminal conduct” that included Layton’s offense in FA-20. Id.
With the terms of imprisonment in FA-20 and the present case run
consecutively, the maximum total term of imprisonment to which Layton could
have been sentenced was thirty years: the advisory sentence for a Class A
felony. See I.C. § 35-50-2-4. Because Layton had already been sentenced to
sixteen years imprisonment in FA-20, the maximum sentence he could have
received in the instant case with a consecutive sentence was fourteen years
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imprisonment. Layton received this maximum term, and contends it was
inappropriate.
[17] Layton contends that the trial court had the discretion to sentence him to a
concurrent, rather than consecutive term of imprisonment, and its decision to
impose a consecutive term of imprisonment was inappropriate, as was the
aggregate term of imprisonment imposed.
[18] Turning first to the nature of Layton’s offense, Layton engaged in a conspiracy
to manufacture methamphetamine. Some of Layton’s conduct associated with
the conspiracy occurred in Dearborn County in FA-20, and some in Ohio
County. The conspiracy itself appears to have run for more than one month,
involved travel outside the State of Indiana in an effort to obtain precursors,
and implicated a total of five individuals in its efforts. This was not, then, an
unexceptional methamphetamine production effort.
[19] We turn now to Layton’s character. Layton contends that while he has a
substantial criminal history, much of it is part of the distant past. Our review of
his criminal history reveals a different picture. Layton did, as he notes, incur a
number of his convictions in Ohio in 1983 and earlier; yet that record reflects
increasingly severe criminal activity, with his 1983 conviction in Ohio resulting
in a sentence of seven to twenty-five years imprisonment. Then, in 2005,
Layton committed Burglary in Indiana and received an eight-year sentence; this
was followed by another Burglary in Ohio and another eight-year sentence.
After this, Layton apparently moved to West Virginia where he was found
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guilty of Receiving Stolen Property in 2009. In 2010, he was extradited to
Indiana as a result of a parole violation after being arrested and charged in West
Virginia for an attempt to operate a methamphetamine laboratory. This was
followed in 2013 by the charges in this case and in FA-20. He apparently “took
pride in his past history.” (App’x at 159.)
[20] Further, we note that at the time of his sentencing, Layton was fifty-eight years
old. He admitted to daily use of marijuana since age fifteen, saying that he
would “‘smoke as much as I can get,’” and also admitted regular use of and
addiction to methamphetamine since age forty-eight. (App’x at 159.) Layton
has never completed high school or a G.E.D. And while Layton admitted guilt
in this case, he also received a substantial benefit from that admission: the
dismissal of two Class A felony charges, each carrying a sentencing range of
twenty to fifty years imprisonment, see I.C. § 35-50-2-4, and a Habitual Offender
enhancement.
[21] In light of the nature of Layton’s offense and his character, we do not consider
inappropriate the trial court’s decision to sentence him to the maximum
consecutive sentence available in this case.
[22] Affirmed.
Robb, J., and Brown, J., concur.
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