Lewis James Martin 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 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
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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).
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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.
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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
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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.
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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”).
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[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
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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).
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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
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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.
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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.
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