Weiss v. State

• Decision Date: 14 June 2006
• Docket Number: No. 17S03-0510-CR-487.,17S03-0510-CR-487.
• Parties: David WEISS, Appellant (Plaintiff below), v. STATE of Indiana, Appellee (Defendant below).
• Court: Indiana Supreme Court

848 N.E.2d 1070

David WEISS, Appellant (Plaintiff below), v. STATE of Indiana, Appellee (Defendant below).

No. 17S03-0510-CR-487.

Supreme Court of Indiana.

June 14, 2006.

Susan K. Carpenter, Public Defender of Indiana, J. Michael Sauer, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Stephen R. Carter, Attorney General of Indiana, Gary Damon Secrest, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 17A03-0501-CR-32

RUCKER, Justice.

David Weiss seeks transfer from a decision of the Court of Appeals affirming his sentences for drug related offenses. More specifically, Weiss was charged with two counts of dealing in methamphetamine of more than three grams, a Class A felony, one count of unlawful possession of a firearm by a serious violent felon, a Class B felony, one count of maintaining a common nuisance, a Class D felony, and of being a habitual offender. In exchange for his plea of guilty to a reduced charge of dealing in methamphetamine as a Class B felony, unlawful possession of a firearm by a serious violent felon, and of being a habitual offender, the State dismissed the remaining charges and agreed to refrain from filing three additional charges of dealing in methamphetamine. The plea agreement provided in pertinent part that "the B Felony sentences shall be served concurrently, and executed time is capped at 40 years." Appellant's App. at 173. At the sentencing hearing the trial court sentenced Weiss to twenty years for the dealing offense, which was enhanced by twenty years for the habitual offender adjudication. The trial court also sentenced Weiss to twenty years for the firearm possession charge to be served concurrently with the other sentences imposed for a total executed term of forty years.

On review Weiss raised a single issue: whether his sentence was inappropriate in light of the nature of the offense and the character of the offender. See Ind. Appellate Rule 7(B). The Court of Appeals affirmed the judgment of the trial court but declined to evaluate the merits of Weiss' claim. Citing Gist v. State, 804 N.E.2d 1204 (Ind.Ct.App.2004), trans. not sought, and other recent Court of Appeals opinions, in an unpublished memorandum decision the court held, "[I]f a defendant signs a plea agreement in which he agrees to a specific term of years, or to a sentencing range other than the range authorized by statute, he will not be able to claim thereafter that a sentence imposed consistent with the agreement is inappropriate." Weiss v. State, No. 17A03-0501-CR-32, 833 N.E.2d 1103, slip op. at 4 (Ind.Ct.App. Aug.16, 2005). The underlying rationale for the court's holding is that by entering into such agreements the defendant either acquiesced in or implicitly agreed to the sentence imposed. In an opinion handed down today we disagreed with this proposition and held instead that Indiana Appellate Rule 7(B)

articulates a standard of review designed as guidance for appellate courts. . . . Of course a defendant must persuade the appellate court that his or her sentence has met this inappropriateness standard of review. But to say that a defendant has acquiesced in his or her sentence or has implicitly agreed that the sentence is appropriate undermines in our view the scope of authority set forth in Article VII, Section 4 of the Indiana Constitution. We thus disapprove of language in Gist, Mann [v. State, 742 N.E.2d 1025 (Ind.App.Ct. 2001)] and their progeny providing otherwise.

Childress v. State, No. 61S01-0510-CR-484, 848 N.E.2d 1073, 1080, 2006 WL 1633431, *4-5 (Ind. June 14, 2006). Accordingly, we proceed to address Weiss' inappropriateness claim.

Indiana Appellate Rule 7(B) provides, "The Court may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." Regarding the nature of the offense, the presumptive sentence¹ is the starting point the Legislature has selected as an appropriate sentence for the crime committed. Ruiz v. State, 818 N.E.2d 927, 929 (Ind.2004); Lander v. State, 762 N.E.2d 1208, 1214-15 (Ind.2002). The presumptive sentence (or now advisory sentence) for a Class B felony is ten years. See Ind.Code § 35-50-2-5. Here the trial court enhanced both presumptive terms by an additional ten years—the maximum authorized by statute. Id. Also, the trial court further enhanced one of the Class B felony offenses by an additional twenty years for the habitual offender adjudication.²

Arguing that the nature of the offenses warrants no more than the presumptive sentences of ten years, Weiss contends, "[t]here was nothing about the manner in which these offenses were committed that would call for a greater sentence. Weiss sold some methamphetamine to an old friend who had come to him asking for the drug, not knowing that his friend was a confidential informant being paid $100 each time he made a purchase for the police." Br. of Appellant at 6. Weiss greatly understates the nature of his drug dealing activities. A search of Weiss' home, which apparently was secured by motion sensors and audio and video surveillance equipment, Appellant's App. at 129, revealed over thirteen grams of amphetamine and over fourteen grams of methamphetamine. Appellant's App. at 97. And as a part of the plea agreement the State refrained from filing three additional charges against Weiss arising out of his sale of drugs occurring within weeks of the day on which Weiss was arrested. Appellant's App. at 173. In essence the record shows that Weiss was involved in a large-scale drug operation that consisted of more than simply selling methamphetamine to an old friend.

As for the character of the offender, Weiss has an extensive criminal history, most of which is drug related. In 1982, at the age of twenty-four, Weiss pleaded guilty in the State of Nevada to the sale of a controlled substance (LSD) and carrying a concealed weapon. Appellant's App. at 69. Several...