Troy Ryan Wilson v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any May 16 2019, 7:19 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
Thomas B. O’Farrell Curtis T. Hill, Jr.
McClure | O’Farrell Attorney General of Indiana
Indianapolis, Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Troy Ryan Wilson, May 16, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2315
v. Appeal from the Hamilton
Superior Court
State of Indiana, The Honorable David K. Najjar,
Appellee-Plaintiff Judge
Trial Court Cause No.
29D05-1801-CM-245
Baker, Judge.
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[1] Troy Wilson appeals the sentence imposed by the trial court after he was
convicted of Class A Misdemeanor Possession of Marijuana and Class C
Misdemeanor Possession of Paraphernalia, arguing that the trial court erred by
inappropriately citing an aggravating factor. Finding no error, we affirm.
Facts
[2] On or around December 23, 2017, Arcadia Police Department Officer
Christopher Lane responded to a late-night dispatch saying that Wilson had
made a “threat to life[]” to someone, that he was driving a black pickup truck,
and that he was armed. Tr. Vol. II p. 7. After driving to a few different
locations, Officer Lane drove to the home of Kelly Brinkman, Wilson’s
girlfriend, where he had been living.
[3] There, Officer Lane found a black pickup truck parked in an alley, with Wilson
standing near the truck’s rear. Officer Lane approached Wilson to speak with
him and immediately noted the strong smell of alcohol. A few minutes later,
Hamilton County Sheriff’s Deputy Dan DeYoung arrived to assist Officer
Lane. As Wilson and Officer Lane talked, Deputy DeYoung walked to the
front of the truck. The driver’s side door was open, and Deputy DeYoung saw a
glass jar containing 2.5 grams of marijuana inside the vehicle.
[4] Deputy DeYoung arrested Wilson and questioned him about whether he
owned the pickup truck or the marijuana. Wilson responded that he did not
own the truck but that he drove it regularly. He also stated that he “uses
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2315 | May 16, 2019 Page 2 of 6
marijuana daily.” Id. at 23. Deputy DeYoung searched Wilson incident to his
arrest and found a pack of cigarettes with a marijuana pipe inside and a small
plastic baggie containing 0.05 grams of marijuana.
[5] On January 11, 2018, the State charged Wilson with Class A misdemeanor
possession of marijuana, Class B misdemeanor possession of marijuana, and
Class C misdemeanor possession of paraphernalia. At Wilson’s August 30,
2018, bench trial, Wilson and the two officers testified about the events of that
evening. Wilson’s testimony conflicted with the officers’ testimony. The trial
court found Wilson guilty as charged.
[6] During sentencing, Wilson testified that he had a prior conviction for marijuana
possession, that he had been on probation before, that he had had probation
revoked, that he would prefer to be placed back on probation, and that he had
just smoked marijuana “a couple weeks ago.” Id. at 62. Wilson also blamed his
convictions on Brinkman, claiming that she intentionally placed the marijuana
on his person to get back at him. Before issuing its sentence, the trial court said
the following:
I don’t think there’s really anything of consequence that you have
said here today that is even remotely close to the truth. Not one
thing. Your testimony previously during the evidentiary portion of
the case, your testimony during the sentencing phase of the
hearing, and your statement here has been nothing but confusion
and blaming others for the things that befall you. You’ve not taken
any responsibility for any of the actions. I’m not even talking
about today’s case. You certainly have a right to maintain your
innocence through all phases of the trial, and I’m not going to hold
it against you if you don’t want to take responsibility for this case,
but you haven’t taken responsibility for anything that happened in
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any of your cases where you were found guilty, where you did –
even when you admitted violating your probation, you’re still not
taking responsibility for that.
The facts and circumstances as you have testified them are vastly
different than any of the officers testifying here today, and I cannot
find that anything that you have said with regard to the events that
we’ve talked about here, the events of December 23rd and 24th,
2017, are anything close to the truth. You have woven a tale, sir,
you have woven a tale that is I think only in your mind. And it is
not anything that can be substantiated, it is not anything that has
been corroborated by any other piece of evidence. And it runs
completely counter to any of the testimony offered by any of the
officers and other witnesses that have testified here today.
Id. at 68-69. The trial court merged the two possession of marijuana counts into
one conviction for Class A misdemeanor possession of marijuana. The trial
court then sentenced Wilson to concurrent terms of 180 days for the possession
of marijuana conviction and sixty days for the possession of paraphernalia
conviction. The trial court ordered Wilson to pay court costs in the amount of
$185 and a drug interdiction fee of $200 and also denied his request to be placed
on probation. Wilson now appeals.
Discussion and Decision
[7] Wilson’s sole argument is that the trial court erred by inappropriately citing an
aggravating factor at sentencing—namely, his lack of credibility.
[8] Sentencing decisions are left to the sound discretion of the trial court. Smallwood
v. State, 773 N.E.2d 259, 263 (Ind. 2002). We will reverse a sentencing decision
involving the use or non-use of certain aggravating and mitigating factors only
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if the decision is clearly against the logic and effect of the facts and
circumstances before the trial court and all reasonable inferences drawn
therefrom. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g,
875 N.E.2d 218.
[9] Simply put, Wilson’s argument is unavailing.1 2 First and foremost, there is no
evidence in the record that supports Wilson’s contention that the trial court
cited his lack of credibility as an aggravator or that the trial court found
aggravators at all. So, as a general matter, the foundation of Wilson’s argument
is absent. In any event, misdemeanor statutes do not establish advisory
sentences but only state the maximum allowable sentence. As such, trial courts
have nothing to enhance or reduce by either aggravators or mitigators.
Therefore, aggravators and mitigators are irrelevant in misdemeanor
sentencing.
[10] Second, the trial court plainly stated that in sentencing Wilson, it considered
that “you [Wilson] haven’t taken responsibility for anything that happened in
any of your other cases where you were found guilty[] . . . even when you
admitted violating your probation, you’re still not taking responsibility for
that.” Tr. Vol. II p. 68. In other words, the trial court did not reach its
1
The Court was amused by Appellant counsel’s incorporation of pictures to illustrate his argument, but we
nonetheless find neither merit nor utility in making legal arguments based on the United States’s so-called
fascination with liars.
2
Moreover, Wilson fails to recognize that because this was a bench trial, the trial court judge functioned as
the ultimate trier of fact. Therefore, any argument that the trial court itself did not have the authority to
weigh the credibility of Wilson and any evidence he proffered is unfounded.
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sentencing decision because of Wilson’s lack of credibility or insistence of
innocence. Rather, the trial court looked to Wilson’s past convictions,
violations of probation, and clear lack of remorse when it admonished and
ultimately sentenced Wilson. The trial court was well within its discretion to
make such a determination. See Bailey v. State, 763 N.E.2d 998, 1004 (Ind. 2002)
(holding that a history of criminal activity and lack of remorse reflects poorly on
a defendant’s character at sentencing). Therefore, the trial court did not err in its
sentencing.
[11] The judgment of the trial court is affirmed.
Najam, J., and Robb, J., concur.
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