Colt M. Bowling 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 May 12 2020, 9:10 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
Zachary A. Witte Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Lauren A. Jacobsen
Sierra A. Murray
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Colt M. Bowling, May 12, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2566
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause Nos.
02D05-1905-F6-553
02D05-1906-F6-715
Mathias, Judge.
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[1] Colt M. Bowling pleaded guilty to charges under two separate causes and was
sentenced by the Allen Superior Court to an aggregate term of four years in the
Department of Correction (“DOC”). In this consolidated appeal, Bowling
claims that his sentence is inappropriate in light of the nature of his offenses and
his character as an offender.
[2] We affirm.
Facts and Procedural History
[3] Bowling was arrested for criminal trespass on May 7, 2019, because he was
present in a Walmart after having been banned by the company from all
Walmart stores in 2018. During a search incident to Bowling’s arrest, law
enforcement discovered in his backpack .7 gram of methamphetamine, 1.1
grams of marijuana, a rolled marijuana cigarette, and a glass pipe that
contained methamphetamine residue. On May 10, the State charged Bowling in
Cause No. 02D05-1905-F6-553 (“F6-553”) with Level 6 felony possession of
methamphetamine; Class A misdemeanor criminal trespass; Class B
misdemeanor possession of marijuana; and Class C misdemeanor possession of
paraphernalia. Bowling was released on bond on June 8.
[4] On June 12, Bowling was arrested after unlawfully entering a Motel 6 that was
closed for renovation. Fort Wayne Police Department Officer C. Lichtsinn
(coincidentally, the same officer who had arrested Bowling at Walmart the
month before) believed that Bowling was under the influence of an illegal
substance because Bowling was “extremely paranoid” and “sweating
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profusely.” Appellant’s Conf. App. p. 185. Bowling admitted that he dropped a
bag of methamphetamine on the ground outside the Motel 6, and Officer
Lichtsinn recovered a bag nearby that contained .3 gram of methamphetamine.
A search of Bowling’s pockets uncovered a glass methamphetamine pipe and .3
gram of marijuana. The State charged Bowling on June 17 with Level 6 felony
possession of methamphetamine; Class B misdemeanor possession of
marijuana; and Class C misdemeanor possession of paraphernalia in Cause No.
02D05-1906-F6-715 (“F6-715”).
[5] On July 22, 2019, Bowling entered guilty pleas on all charges under both causes
and was accepted into the Allen County Drug Court Diversion Program; his
case was continued for sentencing as part of the diversion program agreement.
He entered Park Center’s Addiction Residential Unit on July 23 but left one
week later and did not return or maintain contact with this case manager. The
trial court issued a warrant for his arrest after Bowling failed to appear at an
August 5 hearing. Bowling was terminated from the diversion program on
September 24.
[6] Bowling appeared for a sentencing hearing for both causes on October 22, 2019.
The trial court found as aggravating circumstances Bowling’s criminal history;
his unsuccessful attempts at rehabilitation; a pending charge against him of
child molesting; and the fact that he was on bond in cause F6-553 when he
committed the offenses in cause F6-715. The trial court credited Bowling’s
acceptance of responsibility in pleading guilty and his expression of remorse as
mitigating circumstances.
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[7] In cause F6-553, Bowling received the following sentences: two years for
methamphetamine possession, one year for criminal trespass, 180 days for
marijuana possession, and 60 days for possession of paraphernalia. These
sentences were to run concurrently, for an aggregate term of two years. In cause
F6-715, Bowling received two years for methamphetamine possession, 180 days
for marijuana possession, and 60 days for possession of paraphernalia, also to
be served concurrently for an aggregate term of two years. The trial court
ordered these two-year terms to be served consecutively, for a total of four years
in the DOC. Bowling now appeals.
Discussion and Decision
[8] Bowling asks that we review and revise his sentence pursuant to Appellate Rule
7(B),1 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.” We also defer to a trial court’s sentencing decision in
recognition of the unique perspective the trial court brings to sentencing
decisions. Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). In light of this due
deference, we will not revise a sentence in the absence of compelling evidence
1
Bowling challenges only the two-year sentences imposed for his Level 6 felony convictions and does not
address the appropriateness of the sentences imposed for his misdemeanor convictions. Our review, however,
is not limited “merely [because a defendant] challeng[es] an individual sentence within a single order that
includes multiple sentences.” Moyer v. State, 83 N.E.3d 136, 140 (Ind. Ct. App. 2017), trans. denied. Thus, our
review will also consider the appropriateness of the concurrent sentences imposed for Bowling’s
misdemeanor convictions.
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that portrays in a positive light the nature of the offense and the defendant’s
character. Id. Furthermore, we do not probe whether the defendant’s sentence is
appropriate or if another sentence might be more appropriate; rather, the test is
whether the sentence imposed is inappropriate. Fonner v. State, 876 N.E.2d 340,
344 (Ind. Ct. App. 2008). Thus, revision under Rule 7(B) is proper only in
“exceptional cases.” Livingston v. State, 113 N.E.3d 611, 613 (Ind. 2018). It is
the defendant’s burden to persuade the Court that his sentence meets the
inappropriateness standard. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007).
[9] “A person who . . . knowingly or intentionally possesses methamphetamine
(pure or unadulterated) commits possession of methamphetamine, a level 6
felony[.]” Ind. Code § 35-48-4-6.1. The sentencing range for a Level 6 felony is
between six months and two and one-half years, with the advisory sentence
being one year. I.C. § 35-50-2-7(b). The severity of the offense is heightened
where the amount of methamphetamine possessed surpasses a certain point.
I.C. § 35-48-4-6.1. In considering the nature of an offense, the advisory sentence
as deemed appropriate by the legislature is our starting point. Abbott v. State, 961
N.E.2d 1016, 1019 (Ind. 2012). Where a sentence deviates from an advisory
sentence, we consider whether there is anything more or less egregious about
the offense as committed by the defendant that “makes it different from the
‘typical’ offense accounted for by the legislature when it set the advisory
sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011).
[10] Bowling was sentenced to two years for Level 6 felony methamphetamine
possession and received the maximum sentences permitted for each of his
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misdemeanor convictions. See I.C. §§ 35-50-3-2 through 4. We agree with
Bowling that there is little in the record indicating that the egregious nature of
his methamphetamine possession offenses warrants a sentence above the
advisory sentence. Bowling possessed very small amounts of methamphetamine
and was cooperative when he was arrested. See Appellant’s App. pp. 92, 170.
[11] Bowling, however, committed the June 12 offenses in cause F6-715 while he
was out on bond in cause F6-553. Under these circumstances, Indiana Code
section 35-50-1-2(e) requires trial courts to order that multiple terms of
imprisonment be served consecutively. (“If, after being arrested for one (1)
crime, a person commits another crime. . . while the person is released. . . on
bond[,] the terms of imprisonment for the crimes shall be served
consecutively[.]”) Accordingly, it was not inappropriate for the trial court to
order each two-year sentence served consecutively, based on the back-to-back
nature of Bowling’s Level 6 felony offenses.
[12] Bowling also argues that his sentence is inappropriate in light of his character as
an offender. In assessing a defendant’s character, we engage in a broad
consideration of his qualities. Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App.
2014). This consideration may include not only the aggravating and mitigating
circumstances identified by the trial court, but also any other factors that appear
in the record. Johnson v. State, 986 N.E.2d 852, 856 (Ind. Ct. App. 2013). One
relevant factor is an offender’s criminal history, the significance of which varies
based on the gravity, nature, and number of prior offenses in relation to the
current offenses. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007).
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[13] At the time of his sentencing, Bowling was twenty-five years old. Appellant’s
Conf. App. p. 172. His pre-sentence investigation report indicates that he began
abusing drugs as a teenager. Id. at 180–81. Bowling’s criminal history includes
convictions for burglary and a number of misdemeanor offenses. Id. at 176–77.
Despite being granted leniency in sentencing in prior cases, Bowling has had
terms of probation and home detention revoked and appears to have made little
progress in addressing his substance abuse issues. In the instant case, too,
Bowling was afforded the opportunity to participate in a drug court diversion
program but abandoned the program after one week. Bowling’s criminal history
and his failure to participate in rehabilitation services to completion does not
reflect well on his character. More troubling is the fact that, at the time of his
sentencing, Bowling faced a pending charge of child molestation as a Level 4
felony. Accordingly, based on our review of Bowling’s character as an offender,
it was not inappropriate for the trial court to impose sentences above the
statutory advisory sentences to be served consecutively.
Conclusion
[14] Bowling has not met the burden of demonstrating that his sentence is
inappropriate in light of the nature of his offenses and his character as an
offender, such that it warrants revision under Appellate Rule 7(B). For this
reason, we hold that Bowling’s four-year sentence is not inappropriate.
[15] Affirmed.
Riley, J., and Tavitas, J., concur.
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