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Date: 06-29-2021
Case Style:
Gary Dawayne Amick v. State of Indiana
Case Number: 20A-CR-02253
Judge: James S. Kirsch
Court: COURT OF APPEALS OF INDIANA
Plaintiff's Attorney: Theodore E. Rokita
Attorney General of Indiana
Courtney L. Staton
Deputy Attorney General
Defendant's Attorney:
Description:
Indianapolis, IN - Criminal defense attorney represented Defendant charged with dealing in methamphetamine, dealing in marijuana and maintaining a common nuisance.
On December 20, 2013, Amick was arrested in Scott County for Class A felony
dealing in methamphetamine, Class C felony dealing in a Schedule IV
controlled substance, Class D felony dealing in marijuana, and Class D felony
maintaining a common nuisance under cause number 72C01-1405-FA-7.
Appellant’s App. Vol. 2 at 33. According to the Odyssey case management
system, on October 1, 2014, Amick was released on bond.
[3] On November 12, 2015, an officer from the Bartholomew County Sheriff’s
Department stopped Amick’s vehicle after Amick disregarded a red light.
Appellant’s App. Vol. 2 at 23. While he was collecting Amick’s information, the
officer learned that Amick’s passenger had an outstanding warrant for his
arrest, so the officer asked for and obtained permission from Amick to search
his car. Appellant’s App. Vol. 3 at 23-24. The officer found a handgun in the
panel beneath the steering wheel and, a few minutes later, was informed by
dispatch that Amick did not have a permit to carry a handgun and that he had
been convicted of a firearm offense. Id. That same day, the State charged Court of Appeals of Indiana | Memorandum Decision 20A-CR-2253 | June 28, 2021 Page 3 of 6
Amick with Level 5 felony carrying a handgun without a license. Id. at 21. On
December 1, 2015, Amick was released on bond. Id. at 2.
[4] On December 10, 2015, just nine days after bonding out of the Bartholomew
County jail, Amick was arrested in Scott County and charged with two counts
of Level 5 felony intimidation, two counts of Level 6 felony pointing a firearm,
and one count of Level 6 felony criminal recklessness under cause number
72C01-1512-F5-63. Id. at 24-25. On February 2, 2016, the State amended the
charging information with several additional offenses, including Level 3 felony
aggravated battery for allegedly shooting another person. Id. at 26-28.
[5] On August 15, 2016, Amick pleaded guilty to Class C felony dealing in a
Schedule IV controlled substance and to Level 5 felony carrying a handgun
without a license in Scott County. Appellant’s App. Vol. 2 at 33; Appellant’s App.
Vol. 3 at 30-31. On September 12, 2016, the trial court sentenced Amick to
DOC for four years each on each offense and ordered the sentences to be served
consecutively. Appellant’s App. Vol. 2 at 33; Appellant’s App. Vol. 3 at 30.
[6] As to the Bartholomew County charge, on January 9, 2017, Amick agreed to
plead guilty to Level 5 felony carrying a handgun without a license, and on
February 21, 2017, the trial court accepted the plea agreement and sentenced
Amick to four years in DOC. Appellant’s App. Vol. 2 at 25-28. The trial court
ordered Amick to serve this sentence consecutively to his sentence for dealing
in a controlled substance in Scott County, but the trial court’s order was silent Court of Appeals of Indiana | Memorandum Decision 20A-CR-2253 | June 28, 2021 Page 4 of 6
as to whether the sentence should run consecutively or concurrently to his Scott
County sentence for carrying a handgun without a license. Id.
[7] On January 18, 2020, Amick filed a motion to modify his Bartholomew County
sentence. Id. at 37-45. The trial court initially granted the motion but placed a
temporary hold on the modification order because of the coronavirus outbreak;
on April 3, 2020, the trial court lifted the hold on its modification order and
allowed Amick to participate in Bartholomew County Community Corrections
for the remainder of his sentence. Id. at 56-57, 71-72.
[8] On July 24, 2020, Amick tested positive for fentanyl, and on August 7, 2020,
the State filed a verified petition to revoke Amick’s probation, citing, inter alia,
the positive fentanyl test. Appellant’s App. Vol. 3 at 2. At a September 23, 2020
hearing, Amick admitted that he had violated the terms of his probation. Tr.
Vol. II at 2, 6. Before imposing a sanction, the trial court asked the parties to
submit briefs on Amick’s credit time. Id. at 22. Because Amick’s four-year
sentence in this case had been ordered to be served consecutively to his fouryear sentence for dealing in a controlled substance but not to his four-year
sentence for carrying a handgun without a license, Amick argued that he had
served the four-year sentence imposed in this case concurrently with his fouryear sentence for carrying a handgun without a license. Appellant’s App. Vol. 3
at 35-37. The State disagreed and argued that Amick’s sentence in this case was
required to be served consecutively by operation of law because Amick
committed the offenses in Scott County while he was released on bond. Id. at
16-17. On October 7, 2020, the trial court agreed with the State’s argument and Court of Appeals of Indiana | Memorandum Decision 20A-CR-2253 | June 28, 2021 Page 5 of 6
revoked the balance of Amick’s Bartholomew County sentence to DOC. Tr.
Vol. II at 27-28.
[9] On November 24, 2020, Amick filed a pro se motion for belated notice of
appeal. Appellant’s App. Vol. 2 at 19. On November 25, 2020, the trial court
granted Amick’s motion, and according to the Odyssey case management
system, Amick filed his belated notice of appeal on December 7, 2020. Id.
Amick now appeals.
Discussion and Decision
[10] Amick argues the trial court abused its discretion in ordering him to serve the
remainder of his sentence in DOC consecutively1
to his Scott County sentences
and that his sentence is inappropriate.2
The State cross-appeals, arguing that
belated appeals from an order revoking probation are not available under PostConviction Rule 2. Amick does not respond to the State’s cross-appeal.
[11] Post-Conviction Rule 2 provides:
Eligible defendant defined. An “eligible defendant” for purposes of
this Rule is a defendant who, but for the defendant’s failure to do
so timely, would have the right to challenge on direct appeal a
1 Because Amick’s second and third offenses were committed while he was released on bond, all of his
sentences were required to be served consecutively as a matter of law. See Ind. Code § 35-50-1-2(e)(2)(B);
Jones v. State, 775 N.E.2d 322, 332 (Ind. Ct. App. 2002).
2
Sentencing decisions for probation violations are reviewed for an abuse of discretion, not whether the
sentence is inappropriate under Indiana Appellate Rule 7(B). Prewitt v. State, 878 N.E.2d 184, 188 (Ind.
2007).Court of Appeals of Indiana | Memorandum Decision 20A-CR-2253 | June 28, 2021 Page 6 of 6
conviction or sentence after a trial or plea of guilty by filing a
notice of appeal, filing a motion to correct error, or pursuing an
appeal.
[12] The sanction imposed when probation is revoked does not qualify as a
“sentence” under Post-Conviction Rule 2. Specifically, in Dawson v. State, 943
N.E.2d 1281 (Ind. 2011), our Supreme Court explained:
The Court of Appeals correctly decided that belated appeals from
orders revoking probation are not presently available pursuant to
Post-Conviction Rule 2. We agree with the Court of Appeals’
analysis that the sanction imposed when probation is revoked
does not qualify as a “sentence” under the Rule, and therefore
Dawson is not an “eligible defendant.”
Id. at 1281. Amick, likewise, is appealing a sentence imposed after his
probation was revoked, so he is not an “eligible defendant.” Because belated
appeals from orders revoking probation are not available under Post-Conviction
Rule 2, this matter is not properly before us because Amick’s notice of appeal
was untimely.
Outcome: Dismissed.
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Defendant's Experts:
Comments: