Trey M. Shirely v. State of Indiana (mem. dec.)
02A03-1608-CR-1735
Ind. Ct. App.Dec 22, 2016Background
- On August 18, 2015, Trey M. Shirely knowingly or intentionally possessed a synthetic drug or a synthetic-drug lookalike; he had a prior July 7, 2015 conviction for the same offense.
- Charged January 14, 2016 as a Level 6 felony with an allegation of prior conviction; pleaded guilty April 11, 2016 and was placed in the Allen Superior Drug Court Diversion Program.
- State filed a Verified Petition to Terminate Drug Court participation after multiple positive drug screens, a diluted sample, alleged selling at transitional housing, and an arrest; Shirely admitted the violations and was revoked from Drug Court.
- At sentencing (July 19, 2016) the trial court found acceptance of responsibility and remorse as mitigators, and criminal history, failed rehabilitation efforts, probation status at time of offense, and pending charges as aggravators.
- The court sentenced Shirely to 1.5 years in the Allen County Confinement Facility; Shirely appealed arguing an abuse of discretion in sentencing and that the sentence is inappropriate under Indiana Appellate Rule 7(B).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Shirely) | Held |
|---|---|---|---|
| Whether trial court abused its discretion in sentencing | Court properly weighed aggravators (criminal history, failed rehabilitation, probationary status, pending charges) and identified mitigators; record supports reasons | Court gave undue weight to criminal history and failed to find substance abuse history and hardship on dependents as mitigators | No abuse of discretion; sentencing statement supported by record and discretionary weight is not reviewable |
| Whether substance abuse history is a mitigating factor | Substance-abuse history can be an aggravator; record shows continued use and failure to treat, so court properly declined to treat it as mitigating | Shirely urged substance abuse and rehabilitation potential as mitigation | Court may decline to find substance abuse mitigating; here record supports that it was not mitigating |
| Whether hardship on dependents is mitigating | Trial court not required to find incarceration causes undue hardship absent special circumstances; factor was not argued below | Shirely argued hardship to his young children and support obligations | Waived because not advanced at sentencing; alternatively, no special circumstances shown so not a required mitigator |
| Whether sentence is inappropriate under Ind. App. R. 7(B) | Sentence is appropriate given offense, prior conviction, failed Drug Court participation, ongoing substance abuse, moderate risk to reoffend | Sentence excessive given remorse, work history, family responsibilities, and support system | Not inappropriate; defendant failed to meet burden to show revision warranted |
Key Cases Cited
- Anglemyer v. State, 868 N.E.2d 482 (2007) (clarifies abuse-of-discretion review and required sentencing-statement analysis)
- Anglemyer v. State (rehearing), 875 N.E.2d 218 (2007) (further guidance on preservation and mitigation arguments)
- Childress v. State, 848 N.E.2d 1073 (2006) (defendant bears burden to show sentence inappropriate under Rule 7(B))
- Dowdell v. State, 720 N.E.2d 1146 (1999) (absence of "special circumstances" usually defeats claim that incarceration imposes undue hardship)
- Iddings v. State, 772 N.E.2d 1006 (2002) (substance-abuse history may be treated as an aggravator rather than a mitigator)