Pritscher v. State
| Decision Date | 31 December 1996 |
| Docket Number | No. 79A02-9601-CR-58,79A02-9601-CR-58 |
| Citation | 675 N.E.2d 727 |
| Parties | Michael F. PRITSCHER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Pursuant to a plea agreement, Michael Pritscher pled guilty to three counts of dealing cocaine, 1 as Class B felonies. He appeals the length of his sentence, presenting several issues for review which we restate as follows:
I. Whether the imposition of consecutive sentences was manifestly unreasonable where the three drug transactions underlying the convictions were similar and part of a police undercover operation;
II. Whether Pritscher's sentence is unconstitutionally disproportionate to the nature of the offense; and
III. Whether Pritscher's sentence of thirty-eight years' imprisonment and four years probation are contrary to Indiana law.
We affirm.
The evidence most favorable to the judgment shows that on April 23, May 25, and June 13, 1993, a Lafayette Police Department informant purchased 3.35, 2.93, and 2.92 grams, respectively, of cocaine from Pritscher at Pritscher's residence. Pritscher was charged with two counts of dealing in cocaine as a Class B felony, 2 and one count each of dealing in cocaine as a Class A felony, 3 maintaining a common nuisance, 4 possession of marijuana, 5 and reckless possession of paraphernalia. 6 He entered into a plea agreement wherein he agreed to plead guilty to three counts of dealing in cocaine, as Class B felonies, to pay restitution, to give information regarding other drug activity in the community, and to pass a polygraph to demonstrate the truthfulness of that information. In return, Pritscher was to receive a reduction of the Class A to a Class B felony, dismissal of the remaining counts, and a thirty-year sentence cap subject to invalidation if Pritscher failed his polygraph.
Pritscher failed his polygraph, and the trial court sentenced him to thirty-eight years imprisonment, four years probation, and ordered him to pay $1,100 in restitution.
The determination of a defendant's sentence is within the trial court's discretion, and such a determination will be reversed only upon a showing of manifest abuse of that discretion. Ector v. State, 639 N.E.2d 1014, 1015 (Ind.1994). The trial court's discretion includes the weighing of aggravating and mitigating factors to determine an appropriate sentence. Id. The legislature prescribes penalties for crimes, and a trial court's sentencing discretion does not extend beyond the statute's parameters. Golden v. State, 553 N.E.2d 1219, 1222 (Ind.Ct.App.1990), trans. denied. Thus, we review a sentence to determine whether it was statutorily authorized and whether it was imposed after a properly conducted presentence hearing. 7 If the sentence lies within its statutory limits, and it is not otherwise impermissible under our federal or state constitutions, we will overturn a sentence only when it is manifestly unreasonable. Ind.Appellate Rule 17(B)(1); Hardebeck v. State, 656 N.E.2d 486, 490 (Ind.Ct.App.1995) trans. denied. A sentence is manifestly unreasonable if "no reasonable person could find such sentence appropriate to the particular offense and offender." Ferrell v. State, 565 N.E.2d 1070, 1073 (Ind.1991).
Pritscher contends that because the three drug sales underlying his convictions were similar, occurred within a fifty-two-day time frame, and were staged by the police, the trial court's imposition of consecutive sentences was manifestly unreasonable. He relies on Beno v. State, 581 N.E.2d 922 (Ind.1991), where the court overturned the defendant's sentence as manifestly unreasonable because the underlying convictions were based on police sting operations and similar fact situations. Pritscher argues that the facts of his case are similar to those in Beno and that therefore his sentence should be overturned. We disagree.
Beno sold 3.1 and 2.9 grams of cocaine to the same police informant at the same location, within a four-day time span. He was charged with and convicted of dealing in cocaine as a Class A felony, dealing in cocaine as a Class B felony, and maintaining a common nuisance. In sentencing Beno, the trial court stated:
"I don't see anything at all wrong with sending a very clear message to every person in the State that somewhere along the line the buck's gotta stop and it's gotta stop right here at this bench."
Id. at 923. The trial court imposed the maximum fine of $30,000, and the maximum aggravated sentence on each count, to be served consecutively, in order that Beno would "never see the light of day again." Beno, 581 N.E.2d at 924. Our supreme court rejected the propriety of such motivation, and in reversing the sentence imposed by the trial court stated:
Id. The court noted that the probation department had recommended that Beno's sentences be served concurrently, that the State did not request consecutive sentences, and that the trial court's stated motivation for consecutive sentences was to make an example of Beno to other drug dealers. The court phrased its holding thus:
Id. (emphases added).
The facts here are not the same as those in Beno. First, Beno's sales spanned a period of four days; Pritscher's sales spanned a period of almost two months. Second, each time Beno's informant approached Beno at his house to buy cocaine, either Beno or his friend had to leave and obtain the drug before returning to the house to conclude the sale; each time Pritscher's informant approached Pritscher to buy cocaine, Pritscher had the drug immediately at hand, in his home, and ready for sale. Third, Beno was charged with and convicted on all original counts; Pritscher was originally charged with six separate counts, but sentenced only on three counts, one of which was reduced, in accordance with a plea agreement. Fourth, Beno was sentenced to the maximum aggravated term on all counts, totaling seventy-four years' imprisonment, and the maximum fine of $30,000.00. Pritscher was sentenced, not to the maximum of sixty years' imprisonment available under his plea agreement in the event he did not pass his polygraph, but to thirty-eight years' imprisonment, four years' probation, and payment of $1,100 in restitution; 8 no fine was imposed. Record at 192.
Moreover, the thirty-eight-year executed term is only eight years beyond the thirtyyear cap Pritscher agreed to in his plea agreement, a cap which was invalidated according to the agreement when Pritscher failed his polygraph examination. Unlike Beno, Pritscher agreed to give the police information regarding drug activities, then failed the polygraph designed to ascertain the truthfulness of that information. According to the terms of the plea agreement, the trial court could have enhanced Pritscher's sentences to the maximum of twenty years on each count, see IC 35-50-2-5, but did not. Beno received the maximum sentence and fine allowable. Pritscher received presumptive sentences of ten years each, enhanced by four years each, rather than enhanced by the maximum ten, and no fine. In Beno, the trial court acted against the sentencing recommendations of both the probation department and the State. Here, the trial court did not act against the sentencing recommendations of the State. Moreover, unlike Beno, the trial court did not attempt to make an example out of Pritscher.
Pritscher also cites Gregory v. State, 644 N.E.2d 543, 545 (Ind.1994), in support of the Beno rule. However, our supreme court stated that Gregory was "a case with similar facts" as Beno, and held that "on these facts, a sentence of 120 years was inappropriate." Id. at 546 (emphasis added). Because Gregory 's facts are similar to those of Beno, and because, as discussed above, the Beno facts are distinguishable from those of the case at bar, Gregory is also factually distinguishable.
The record must disclose the trial court's findings of aggravating or mitigating circumstances, and its reasoning justifying variance from the presumptive sentence. IC 35-38-1-3. A trial court is not limited to, but may consider, the following factors as aggravating when ordering consecutive sentences: (1) the person recently violated probation; (2) the person has a history of criminal activity; (3) the person is in need of correctional or rehabilitative treatment that can best be provided by commitment of the person to a penal facility. IC 35-38-1-7.1. Here, the trial court stated its findings of aggravating and mitigating circumstances, and its reasoning justifying variance from the presumptive sentence thus:
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