Steven A. Trusty v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 09 2020, 9:11 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Christopher Sturgeon Curtis T. Hill, Jr.
Clark County Public Defender Office Attorney General of Indiana
Jeffersonville, Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Steven A. Trusty, July 9, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2982
v. Appeal from the Clark Circuit
Court
State of Indiana, The Honorable Bradley B. Jacobs,
Appellee-Plaintiff. Judge
Trial Court Cause No.
10C02-1708-F2-32
Mathias, Judge.
[1] Steven Trusty (“Trusty”) was convicted in Clark Circuit Court of Level 5 felony
possession of methamphetamine, Level 5 felony possession of cocaine, Level 5
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felony possession of a narcotic drug, and Level 6 felony unlawful possession of
a legend drug. The trial court imposed a three-year aggregate sentence, with
two years executed and one year suspended. Trusty appeals his sentence and
raises two issues:
I. Whether the trial court abused its discretion when it failed to find two
proposed mitigating circumstances; and
II. Whether Trusty’s three-year sentence is inappropriate in light of the nature
of the offense and the character of the offender.
[2] We affirm.
Facts and Procedural History
[3] On August 8, 2017, law enforcement officers observed Trusty and a female
passenger unconscious in a vehicle parked in a motel parking lot in Clark
County, Indiana. The officers roused Trusty and his passenger by knocking on
the car windows. The female passenger gave the officers a false identity. While
searching the vehicle for the passenger’s identification, the officers found
several plastic bags containing powdery and rock-like substances that were later
identified as methamphetamine and cocaine. The officers found syringes and
pills later identified as Carisoprodol, Hydrocodone, and Gabapentin. They
found a digital scale, straw, and spoons all containing white residue. They also
discovered a loaded firearm behind the driver’s seat of the vehicle. Trusty
admitted that he was at the motel to sell methamphetamine.
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[4] The State charged Trusty with seven counts including Level 3 felony dealing in
methamphetamine, Level 5 felony possession of methamphetamine, Level 5
felony possession of cocaine, Level 5 felony possession of a narcotic drug, Level
6 felony possession of a controlled substance, and two counts of Level 6 felony
possession of a legend drug. In October 2018, Trusty filed a motion to suppress
the property seized during the warrantless search of his vehicle. The trial court
denied the motion.
[5] Shortly thereafter, Trusty entered into a plea agreement with the State. He
agreed to plead guilty to Level 5 felony possession of methamphetamine, Level
5 felony possession of cocaine, Level 5 felony possession of a narcotic drug, and
Level 6 felony unlawful possession of a legend drug. In exchange for Trusty’s
guilty plea, the State dismissed the remaining charges, including the Level 3
felony dealing charge. The plea agreement did not provide any terms
concerning Trusty’s sentence. The trial court accepted Trusty’s guilty plea on
December 10, 2018.
[6] Trusty’s sentencing hearing was continued and set for March 12, 2019. Trusty
failed to appear for the hearing, and a warrant was issued for his arrest. Trusty
was taken into custody in August 2019.1 After several continuances were
granted, his sentencing hearing was held on November 20, 2019.
1
From reviewing the record, we conclude that it is reasonably likely that Trusty was absent from Indiana due
to pending criminal charges in Kentucky.
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[7] At the sentencing hearing, the trial court considered Trusty’s criminal history.
In 2014, Trusty was convicted in Florida of three counts of Violation of the
Uniform Code of Military Justice-Indecent Act with a Child and one count of
Uniform Code of Military Justice-Assault on a Child. Trusty also had ten
pending charges in Kentucky for various crimes including burglary, possession
of heroin, and possession of a firearm. The court did not consider Trusty’s
military service when imposing the sentence because Trusty received a bad
conduct discharge from the Navy.
[8] The trial court declined to find aggravating and mitigating circumstances and
ordered Trusty to serve the advisory three-year sentence for each Level 5 felony
conviction, with two years executed in the Department of Correction and one
year suspended to probation. The court also ordered Trusty to serve one year
suspended to probation for the Level 6 felony conviction. All sentences were to
be served concurrent to each other resulting in an aggregate three-year sentence
with one year suspended to probation. The court also stated that it would
consider a modification to Trusty’s sentence if he successfully completed “the
clinically appropriate substance abuse treatment program as determined by” the
Department of Correction. Appellant’s App. p. 120. Trusty now appeals. 2
2
We do not agree with the State’s assertion that Trusty waived the right to appeal his sentence. The waiver
provision in Trusty’s plea agreement vaguely stated that Trusty “waives right to appeal.” Appellant’s App. p.
71. During the guilty plea hearing, the trial court told Trusty he was waiving his right to appeal his
conviction. Tr. p. 24. Trusty was not advised that he was waiving his right to appeal his sentence. And at his
sentencing hearing, Trusty was advised that he had the right to appeal his sentence. Tr. p. 49. Under these
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I. Mitigating Circumstances
[9] Trusty argues that the trial court abused its discretion by failing to consider his
proffered mitigating circumstances. In its sentencing order, “the trial court must
enter a statement including reasonably detailed reasons or circumstances for
imposing a particular sentence.” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.
2007), modified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2007). We review
the sentence for an abuse of discretion. Id. at 490. An abuse of discretion occurs
if “the decision is clearly against the logic and effect of the facts and
circumstances[.]” Id. A trial court abuses its discretion if it (1) fails “to enter a
sentencing statement at all[,]” (2) enters “a sentencing statement that explains
reasons for imposing a sentence—including a finding of aggravating and
mitigating factors if any—but the record does not support the reasons,” (3)
enters a sentencing statement that “omits reasons that are clearly supported by
the record and advanced for consideration,” or (4) considers reasons that “are
improper as a matter of law.” Id. at 490–91. However, the relative weight or
value assignable to reasons properly found, or to those which should have been
found, is not subject to review for abuse of discretion. Id. at 491.
[10] The advisory sentence is the starting point our legislature has selected as an
appropriate sentence for the crime committed. Gomillia v. State, 13 N.E.3d 846,
852 (Ind. 2014). A trial judge may impose any sentence within the statutory
circumstances, Trusty did not knowingly and voluntarily waive his right to appeal his sentence. See Johnson v.
State, 145 N.E.3d 785, 787 (Ind. 2020).
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range without regard to the existence of aggravating or mitigating factors. Id.However, if the trial court finds the existence of aggravating or mitigating
circumstances, then the court is required to give “a statement of the court’s
reasons for selecting the sentence that it imposes.” Id. (quoting Ind. Code § 35-
38-1-3).
[11] Here, the trial court acted within its discretion when it declined to find
aggravating and mitigating circumstances and imposed the advisory sentence.
Nevertheless, we will briefly address Trusty’s claim that the trial court abused
its discretion by failing to consider the following proffered mitigating
circumstances: 1) that Trusty is likely to respond affirmatively to probation or
short-term imprisonment, and 2) that Trusty suffers from post-traumatic stress
disorder (“PTSD”). “An allegation that the trial court failed to identify or find a
mitigating factor requires the defendant to establish that the mitigating evidence
is both significant and clearly supported by the record.” Anglemyer, 868 N.E.2d
at 493.
[12] Under the circumstances of this case, we cannot conclude that the trial court
failed to consider that Trusty is likely to respond affirmatively to short-term
imprisonment or probation. The executed portion of Trusty’s sentence is two
years, which is one year less than the advisory sentence and a relatively short
term of imprisonment. The court considered Trusty for an alternative
placement, but Trusty did not qualify because he is not an Indiana resident.
And the court stated that it would consider a modification to Trusty’s sentence
if he successfully completed “the clinically appropriate substance abuse
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treatment program as determined by” the Department of Correction.
Appellant’s App. p. 120.
[13] Next, Trusty argues that the trial court abused its discretion when failed to find
that he suffers from PTSD as a mitigating circumstance. But Trusty did not ask
the trial court to find this mitigator, and therefore, the trial court did not abuse
its discretion by failing to consider it. See Anglemyer, 868 N.E.2d at 492; Koch v.
State, 952 N.E.2d 359, 375 (Ind. Ct. App. 2011), trans. denied. Moreover, this
alleged mitigating circumstance is not clearly supported by the record. Trusty
has never been diagnosed with PTSD and has never received treatment for it.
He merely speculated that he suffers from PTSD.
[14] For all of these reasons, we conclude that the trial court did not abuse its
discretion when it sentenced Trusty.
II. Inappropriate Sentence
[15] Trusty also argues that his aggregate three-year sentence, with two years
executed in the Department of Correction and one year suspended to probation,
is inappropriate in light of the nature of the offense and the character of the
offender. Pursuant to Indiana Appellate Rule 7(B), “[t]he 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.” We must exercise deference to
a trial court’s sentencing decision because Rule 7(B) requires us to give due
consideration to that decision, and we understand and recognize the unique
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perspective a trial court brings to its sentencing decisions. Rose v. State, 36
N.E.3d 1055, 1063 (Ind. Ct. App. 2015). “Such deference should prevail unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[16] The determination of whether we regard a sentence as inappropriate “turns on
our sense of the culpability of the defendant, the severity of the crime, the
damage done to others, and myriad other factors that come to light in a given
case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008)). The appropriate question is not
whether another sentence is more appropriate, but whether the sentence
imposed is inappropriate. Rose, 36 N.E.3d at 1063.
[17] Although we have the power to review and revise sentences, the principal role
of appellate review should be to attempt to “leaven the outliers, and identify
some guiding principles for trial courts and those charged with improvement of
the sentencing statutes, but not to achieve a perceived ‘correct’ result in each
case.” Cardwell, 895 N.E.2d at 1225. Our review under Rule 7(B) should focus
on “the forest—the aggregate sentence—rather than the trees—consecutive or
concurrent, number of counts, or length of the sentence on any individual
count.” Id. And it is the defendant’s burden on appeal to persuade us that the
sentence imposed by the trial court is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
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[18] A person convicted of a Level 5 felony “shall be imprisoned for a fixed term of
between one (1) and six (6) years, with the advisory sentence being three (3)
years.” Ind. Code § 35-50-2-6. For his three Level 5 felony convictions, Trusty
was ordered to serve concurrent terms of the advisory three-year sentence. The
trial court ordered him to serve two years executed and suspended one year to
probation.3 To determine whether Trusty’s sentence is inappropriate, we
consider all aspects of the penal consequences imposed by the trial court in
sentencing the defendant, including whether a portion of the sentence is ordered
suspended “or otherwise crafted using any of the variety of sentencing tools
available to the trial judge.” Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.
2010).
[19] Trusty argues that his sentence is inappropriate because his offenses were non-
violent, he is sober and willing to treat his substance abuse issues, and he took
responsibility for his offenses by pleading guilty. Trusty also claims his sentence
is inappropriate because he is well-educated and served fourteen years in the
Navy.
[20] Trusty had five illegal substances in his possession when he was arrested:
cocaine, methamphetamine, Carisoprodol, Hydrocodone, and Gabapentin. He
also had a loaded handgun in his vehicle and admitted to law enforcement
3
Trusty was also ordered to serve one year suspended to supervised probation for his Level 6 felony
conviction to be served concurrent to the sentences imposed for his Level 5 felony convictions. The advisory
sentence for a Level 6 felony conviction is one year. See Ind. Code § 35-50-2-7.
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officers that he was planning to sell the methamphetamine. Trusty has not met
his burden of establishing that his three-year sentence is inappropriate in light of
the nature of his offenses.
[21] Trusty has issues with substance abuse but has not taken any steps to address
his addiction. His recent sobriety is likely the result of the period of
incarceration he served in Kentucky before he was sentenced in this case. His
service in the Navy reflects positively on his character, but only minimally.
Trusty received a “bad conduct discharge” from the military after he was found
guilty of four violations of the Uniform Code of Military Justice. Appellant’s
Conf. App. p. 85. And his decision to plead guilty was likely pragmatic after his
motion to suppress the evidence found during the search of his vehicle was
denied. The State also dismissed the Level 3 felony dealing charge in exchange
for Trusty’s guilty plea.
[22] Recognizing that Trusty’s offenses were committed at least in part due to his
substance abuse issues, the trial court is allowing Trusty to serve one year of his
three-year sentence on probation. The court also stated that it will consider
modifying Trusty’s sentence if he completes an appropriate substance abuse
program. Trusty’s three-year aggregate sentence, with one year suspended to
probation, is not inappropriate in light of his character.
[23] Trusty has not met his burden of persuading us that his sentence is an outlier
that warrants revision. For all of these reasons, we conclude that Trusty’s
aggregate three-year sentence, with two years executed and one year suspended
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to probation, is not inappropriate in light of the nature of the offenses and the
character of the offender.
Conclusion
[24] The trial court did not abuse its discretion when it sentenced Trusty. And
Trusty’s aggregate three-year sentence, with two years executed and one year
suspended to probation, is not inappropriate in light of the nature of the
offenses and the character of the offender.
[25] Affirmed.
Riley, J. and Tavitas, J., concur.
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