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Date: 05-17-2021
Case Style:
DEANGELO NELSON v. State of Indiana
Case Number: 20A-CR-02245
Judge: Rudolph Pyle III
Court: COURT OF APPEALS OF INDIANA
Plaintiff's Attorney: Theodore E. Rokita
Attorney General of Indiana
Catherine E. Brizzi
Deputy Attorney General
Defendant's Attorney:
Description:
Indianapolis, IN - Criminal defense attorney represented Deangelo Nelson with three counts of Level 5 felony dealing in a narcotic drug and admitted to being an habitual offender charges.
On October 1, 2019, officers from the Vigo County Drug Task Force arranged a
controlled purchase of narcotics from Nelson using a confidential informant
(“the Informant”). On that date, the Informant drove to Nelson’s home, and
Nelson entered the passenger seat of the Informant’s car. Thereafter, Nelson
1
IND. CODE § 35-48-4-1.
2
I.C. § 35-50-2-8.
3
In his brief, Nelson argues that the language in the plea agreement waiving his appellate rights should not
apply because the trial court, without objection from either party, advised Nelson that he could still file an
appeal. Because the State did not reply to Nelson’s waiver argument in its brief, we take the State’s silence as
a concession on that issue. As a result, we address Nelson’s substantive issue concerning the
inappropriateness of his sentence.Court of Appeals of Indiana | Memorandum Decision 20A-CR-2245 | May 17, 2021 Page 3 of 6
sold the Informant less than one gram of heroin and/or fentanyl. The officers
arranged two more controlled buys from Nelson on October 7 and 23. The
Informant drove to Nelson’s home, wherein he received less than one gram of
heroin and/or fentanyl on October 7 and more than two grams of heroin
and/or fentanyl on October 23.
[4] On October 31, 2019, the State charged Nelson with three counts of Level 5
felony dealing in a narcotic drug, three counts of Level 6 felony possession of a
narcotic drug, and Level 6 felony maintaining a common nuisance. The State
also alleged that Nelson was an habitual offender. Pursuant to a plea
agreement, Nelson pled guilty to the three dealing counts and admitted that he
was an habitual offender. In exchange, the State dismissed the remaining
charges. The parties also agreed to argue the sentence length with a cap of eight
years.
[5] At the ensuing sentencing hearing, the trial court identified no mitigating
factors. In aggravation, the trial court identified the following: (1) Nelson’s
criminal history, which includes a true finding as a juvenile for Class A
misdemeanor resisting law enforcement and convictions as an adult for Level 6
felony failure to register as a sex offender, Level 6 felony failure of a sex
offender to possess identification, Class D felony sexual battery, two Class A
misdemeanor possession of marijuana convictions, and Class B misdemeanor
possession of marijuana; and (2) Nelson had recently violated probation and
conditions of his pre-trial release. The trial court sentenced Nelson to
concurrent four (4) year sentences on each of the three dealing counts and Court of Appeals of Indiana | Memorandum Decision 20A-CR-2245 | May 17, 2021 Page 4 of 6
enhanced the sentence by four (4) years for the habitual offender adjudication.
The trial court ordered Nelson to serve his aggregate eight (8) year sentence in
the Department of Correction, to be served on work release. Nelson now
appeals.
Decision
[6] Nelson argues that his eight-year sentence is inappropriate. Indiana Appellate
Rule 7(B) provides that we may revise a sentence authorized by statute if, after
due consideration of the trial court’s decision, we find that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender. The defendant bears the burden of persuading this Court that his
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
The principal role of a Rule 7(B) review “should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). “Appellate Rule 7(B) analysis is not to determine whether another
sentence is more appropriate but rather whether the sentence imposed is
inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal
quotation marks and citation omitted), reh’g denied. Whether we regard a
sentence as inappropriate turns on the “culpability of the defendant, the severity
of the crime, the damage done to others, and myriad other factors that come to
light in a given case.” Cardwell, 895 N.E.2d at 1224.Court of Appeals of Indiana | Memorandum Decision 20A-CR-2245 | May 17, 2021 Page 5 of 6
[7] When determining whether a sentence is inappropriate, the advisory sentence is
the starting point the General Assembly has selected as an appropriate sentence
for the crime committed. Childress, 848 N.E.2d at 1081. Here, Nelson pled
guilty to three counts of Level 5 felony dealing in a narcotic drug and admitted
to being an habitual offender. The sentencing range for a Level 5 felony is “for
a fixed term of between one (1) and six (6) years, with the advisory sentence
being three (3) years.” I.C. § 35-50-2-6(b). A person found to be an habitual
offender for a Level 5 felony may be sentenced to an additional fixed term that
is between two (2) and six (6) years. I.C. § 35-50-2-8(i)(2). In accordance with
the plea agreement sentencing cap, the trial court imposed concurrent four-year
sentences for the Level 5 felonies and an additional four years for the habitual
finding, for an aggregate eight-year sentence. In addition, the trial court
allowed Nelson to serve his sentence on work release with the option of
petitioning the court for placement in home detention after he completed five
years of his sentence.
[8] Regarding the nature of the offense, this Court has recognized that the nature of
the offense is found in the details and circumstances of the commission of the
offense and the defendant’s participation. Perry v. State, 78 N.E.3d 1, 13 (Ind.
Ct. App. 2017). Here, the record shows that Nelson was dealing drugs in Vigo
County. Nelson sold heroin and/or fentanyl to a confidential informant on
three separate occasions. Given the well-established harm caused by opioids
throughout Indiana, we find that Nelson’s sentence is not inappropriate in light
of the nature of his crimes. Court of Appeals of Indiana | Memorandum Decision 20A-CR-2245 | May 17, 2021 Page 6 of 6
[9] Turning to Nelson’s character, he emphasizes that he had a difficult childhood
and has “reached a point of self-realization that he did not have to become a
victim of his circumstances.” (Nelson’s Br. 12). As the trial court noted,
however, Nelson has an extensive criminal history. Nelson has accumulated
convictions for felony sexual battery, felony failure to register as a sex offender,
felony failure of a sex offender to possess identification, and misdemeanor
possession of a marijuana three times. Additionally, he has one true finding as
a juvenile. In sum, Nelson’s extensive criminal history reflects poorly on his
character. See Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007) (any
criminal history reflects poorly on a person’s character). Furthermore, Nelson
has been afforded leniency of probation by the judicial system in the past.
However, he has shown an inability or unwillingness to conform his behavior
to the rule of law.
Outcome: Accordingly, Nelson has not persuaded us that the nature of his offenses and
character make his sentence inappropriate. Therefore, we affirm the sentence
imposed by the trial court.
Plaintiff's Experts:
Defendant's Experts:
Comments: