Guthery v. State

• Decision Date: 22 December 2021
• Docket Number: Court of Appeals Case No. 21A-CR-711
• Parties: Albert GUTHERY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

180 N.E.3d 339

Albert GUTHERY, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 21A-CR-711

Court of Appeals of Indiana.

FILED December 22, 2021

Attorney for Appellant: Denise L. Turner, Indianapolis, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Courtney L. Staton, Deputy Attorney General, Indianapolis, Indiana

Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Defendant, Albert Guthery (Guthery), appeals his convictions and sentences for dealing in cocaine, a Level 2 felony, Ind. Code § 35-48-4-1(a)(2), and for dealing in methamphetamine, a Level 2 felony, I.C. § 35-48-4-1.1(a)(2). Guthery also appeals his sentence enhancement for being an habitual offender, I.C. § 35-50-2-8(a).

[2] We affirm.

ISSUES

[3] Guthery presents this court with three issues, which we restate as follows:

(1) Whether the trial court abused its discretion in admitting evidence obtained following a traffic stop which he contends was unreasonably extended;

(2) Whether the trial court abused its discretion when it used the same prior conviction to find his conviction for dealing in methamphetamine to be non-suspendable and to adjudicate him as an habitual offender; and

(3) Whether his sentence is inappropriate given the nature of his offenses and his character.

FACTS AND PROCEDURAL HISTORY

[4] On September 27, 2017, Officer Miguel Roa (Officer Roa) of the Indianapolis Metropolitan Police Department's (IMPD) Criminal Interdiction unit was on patrol on the southwest side of Indianapolis. Officer Roa received a telephone call from the Metropolitan Drug Task Force stating that officers who had been surveilling Guthery that day wanted the truck that he was driving stopped if Officer Roa was able to observe him committing a traffic infraction. Officer Roa quickly located Guthery's white pickup truck, began following him, and paced Guthery driving forty-five miles per hour in a thirty-five-mile-per-hour zone. At 1:31 p.m., after observing Guthery speeding, Officer Roa initiated a traffic stop by instructing Guthery over his loudspeaker to pull over to the right side of Lynhurst Drive at Southern Avenue. After making this announcement, Officer Roa observed Guthery reach for the truck's middle console, a place which he knew through his training and experience to be where illegal substances and firearms are commonly concealed. After Guthery pulled over, Officer Roa parked behind his truck and approached the driver's side to speak with Guthery. Officer Roa explained that he had stopped Roa for speeding and asked for Guthery's driver's license. Officer Roa enquired where Guthery was going and whether Guthery had any illegal substances or firearms in the vehicle. Guthery responded that he was "just driving [ ] around" and then stated he was going to Kentucky Avenue. (Suppression Transcript p. 13). Guthery voluntarily and repeatedly displayed his cellphone that had a mapping program open, which Officer Roa felt was "not normal" behavior. (Supp. Tr. p. 15). Officer Roa also observed that Guthery was abnormally nervous to the extent that the officer could see Guthery's heartbeat as the blood pulsed through his jugular. Guthery told Officer Roa that he was going to Kroger's and then stated that he was going to visit a friend. Officer Roa took Guthery's driver's license and instructed Guthery to refrain from using his cellphone and to leave his window unrolled. Officer Roa gave these instructions because sometimes the subject of a traffic stop calls others to come to the site of the stop and distract the investigating officer, or a subject rolls up his window to darken the interior of the vehicle to obscure his actions.

[5] Officer Roa returned to his cruiser and began the process of running Guthery's information through computerized record checks to verify the status of his driver's license and to determine if he had any outstanding warrants. The records checks returned several results which included people with names, dates of birth, and social security numbers that were similar to Guthery's which necessitated that Officer Roa visually scan the results to ensure that they actually pertained to Guthery. During this process, Officer Michael Bragg (Officer Bragg), also of the IMPD Criminal Interdiction unit, arrived at the scene of the traffic stop with canine Officer Koda. Officer Bragg spoke briefly with Officer Roa, who had noticed that Guthery had rolled up the truck's window and was using his cellphone. Officer Roa asked Officer Bragg to instruct Guthery to leave his window down and refrain from using his cellphone, which Officer Bragg did.

[6] Officer Roa finished verifying the results of the computer records checks he had performed and began the process of writing the speeding ticket. Before completing the ticket, Officer Roa exited his cruiser, returned to the truck, and provided Guthery with his Pirtle advisements. Officer Roa asked Guthery for his consent to search the truck. Guthery shook his head in two different directions, indicating both affirmative and negative responses to the officer's question. Officer Roa decided to have Officer Koda sniff the truck, so he removed Guthery from the truck.

[7] At 1:43 p.m., Officer Koda performed an open-air sniff on Guthery's truck and alerted on the passenger side door shortly thereafter. Officer Roa did not continue writing the speeding ticket as the sniff was underway. A subsequent search of the truck's cabin netted what was later determined to be 223.51 grams of cocaine, 28.03 grams of methamphetamine, and 24.91 grams of fentanyl. Officers also found a handgun next to the drugs. After being placed under arrest and provided with his Miranda advisements, Guthery admitted that the drugs were his and that he intended to sell them, but he thought he only had cocaine and methamphetamine. Guthery denied that the handgun belonged to him.

[8] On October 10, 2017, the State filed an Information, charging Guthery with Level 2 felony dealing in cocaine, Level 3 felony possession of cocaine, Level 2 felony dealing in methamphetamine, Level 3 felony possession of methamphetamine, Level 2 felony dealing in a narcotic drug (fentanyl), Level 3 felony dealing in a narcotic drug (fentanyl), and Level 4 felony possession of a firearm by a serious violent felon. On May 24, 2018, Guthery filed a motion to suppress. That same day, the State filed an amended Information, alleging that Guthery was an habitual offender due to having prior, unrelated convictions for Class C felony possession of cocaine in 1996 and Class A felony dealing in cocaine in 1997.

[9] On May 13, 2019, the trial court held a hearing on Guthery's motion to suppress. Officers Roa and Bragg provided testimony consistent with the aforementioned facts. In addition, Officer Roa related that while the sniff was being performed, he could have been writing the speeding ticket. He also acknowledged that, at the time he removed Guthery from the truck, he had been investigating possible narcotics offenses that were unrelated to the purpose of the traffic stop. On July 23, 2019, the trial court denied Guthery's motion to suppress, finding that, while the traffic stop had been "extended," other circumstances such as Officer Roa's observation of Guthery moving about the driver's seat near the center console, Guthery's inconsistent statements about his purpose for driving that day, and Guthery's nervousness justified the extended detention. (Appellant's App. Vol. II, p. 51). The trial court found no violation of Guthery's rights under our state or federal Constitutions.

[10] The trial court convened Guthery's bench trial on January 29, 2021, and February 26, 2021. The trial court incorporated the arguments, testimony, and rulings from the suppression proceedings into the trial record. Officer Roa testified at trial that his request for consent to search did not extend the traffic stop because he was still receiving warrant information from the computerized record checks at the time and that he continued to work on verifying that information while Officer Koda performed the sniff. Over Guthery's objections, the trial court admitted evidence pertaining to the cocaine, methamphetamine, fentanyl, and the handgun, as well as Guthery's subsequent inculpating statements. The trial court found Guthery not-guilty of the narcotic drug charges related to the fentanyl but guilty of the remaining charges. The trial court also found Guthery to be an habitual offender.

[11] On March 22, 2021, the Marion County Probation Department filed its presentence investigation report. Guthery had a misdemeanor conviction for resisting law enforcement in 1994, for which he received a 150-day jail sentence. Guthery received 180 days executed for his 1996 Class C felony cocaine possession conviction. He also received a 1,280-day suspended sentence and 730 days of probation. Also in 1996, the State filed a notice of probation violation, ultimately leading to Guthery's probation being revoked. Guthery served the remainder of his sentence in the Marion County jail. Guthery received thirty years in the Department of Correction (DOC) for his 1997 Class A felony cocaine dealing conviction but successfully petitioned to have his sentence modified after serving twelve years.

[12] Guthery received his GED and a college degree while incarcerated. Prior to his arrest for this case, Guthery had been employed for three years at the same business as a team leader. During the resolution of this case, Guthery worked fulltime as a dock operator at a food bank. Guthery reported that his financial situation was stable and that he did not worry about paying his bills. Guthery did not report having any addiction issues. Guthery had been married to Lynesha Guthery for over ten years, and they had two children together, ages eleven and six. Guthery informed the presentence investigator that he had no knowledge of the drugs or handgun in his truck and that he had...