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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Dec 29 2008, 8:41 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: MATTHEW J. ELKIN Kokomo, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana NICOLE M. SCHUSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
MARVIN GUY RIDDLE, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 34A02-0807-CR-642

APPEAL FROM THE HOWARD SUPERIOR COURT The Honorable William C. Menges, Jr., Judge Cause No. 34D01-0603-FA-00212

December 29, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION VAIDIK, Judge

Case Summary Marvin Guy Riddle appeals his twenty-year sentence with five years suspended to probation for Class B felony possession of cocaine. Specifically, he contends that the trial court abused its discretion in finding several aggravators and that his sentence is inappropriate. Although we conclude that the trial court found one improper aggravator, in light of the remaining proper aggravators and lack of mitigators, we conclude that the trial court did not abuse its discretion in sentencing Riddle. In addition, in light of Riddle's prior misdemeanor conviction, the fact that he committed the instant offense while he had a felony theft charge pending, and the fact that he was charged with two felonies while out on bond in this case and on probation in the theft case, he has failed to persuade us that his sentence is inappropriate. We therefore affirm. Facts and Procedural History On March 9, 2006, the State charged Riddle with Count I: Class A felony dealing in cocaine and Count II: Class A felony possession of cocaine. In April 2008, the State and Riddle entered into a plea agreement whereby Riddle agreed to plead guilty to Count II: possession of cocaine as a Class B felony (as a lesser included offense of Class A felony possession of cocaine), and the State agreed to dismiss the other charge and not file additional charges. According to the plea agreement, "The Defendant shall be

sentenced after evidence and arguments." Appellant's App. p. 53 (emphasis removed). At the sentencing hearing, the State presented as a factual basis for Class B felony possession of cocaine1 that around 3:30 a.m. on April 8, 2006,2 police officers
1

For Class B felony possession of cocaine, the State had to prove that Riddle knowingly or intentionally possessed less than three grams of cocaine within 1000 feet of school property. See Ind.

2

encountered Riddle at Circle K on 1800 East Markland in Kokomo, Indiana, which was within 1000 feet of a school, and found cocaine weighing in excess of three grams, specifically, ten grams. At the conclusion of the sentencing hearing, the trial court made the following statement: I think the fact that the defendant has a history of criminal activity, that he recently has violated probation, that he was arrested for a new offense while he was on bond for this offense and on probation out of Hamilton County are aggravating factors. I find no mitigating factors. . . . In normal situations the maximum sentence is reserved for those who have committed the most heinous violations of that class of felony but in this case the defendant was charged with an A felony and while not necessarily germane to proving a factual basis for the B felony, we had evidence introduced that would have provided the factual basis for the A felony and the reduction from an A felony to a B felony I think provides ample justification to impose the maximum sentence available for a B felony. I think that is appropriate in this case. Tr. p. 105, 107. Accordingly, the trial court sentenced Riddle to the maximum term of twenty years but suspended five years to probation. Riddle now appeals his sentence. Discussion and Decision Riddle raises two issues on appeal. First, he contends that the trial court abused its discretion in sentencing him. Second, he contends that his sentence is inappropriate. I. Abuse of Discretion Though the Argument section of Riddle's brief is difficult to decipher, it appears that he argues that the trial court abused its discretion in finding as aggravators his history

Code

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