Preview:

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. ATTORNEY FOR APPELLANT: BRUCE W. GRAHAM Lafayette, Indiana ATTORNEYS FOR APPELLEE: STEPHEN R. CARTER Attorney General of Indiana Indianapolis, Indiana GEORGE P. SHERMAN Deputy Attorney General Indianapolis, Indiana

FILED
IN THE COURT OF APPEALS OF INDIANA
MICHAEL T. FOLEY, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )
Jan 29 2008, 10:27 am
of the supreme court, court of appeals and tax court

CLERK

No. 79A05-0709-CR-509

APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Donald C. Johnson, Judge Cause No. 79D01-0602-FA-02

JANUARY 29, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION HOFFMAN, Senior Judge

Defendant-Appellant Michael T. Foley ("Foley") appeals from his sentence after pleading guilty to possession of methamphetamine, a Class C felony, and to escape, a Class D felony. We affirm. Foley does not contest the one-year sentence imposed on the escape conviction, but challenges the trial court's use of discretion in sentencing for the possession of methamphetamine conviction. Foley also contends that the sentence imposed is

inappropriate in light of the nature of the offense and the character of the offender, and asks this court to exercise its authority to revise his sentence. On February 17, 2006, the State charged Foley with Class A felony possession of methamphetamine, Class A misdemeanor possession of paraphernalia, and Class C felony possession of methamphetamine. On August 24, 2006, Foley entered into a plea agreement which provided that Foley plead guilty to Class C felony possession of methamphetamine in exchange for the dismissal of the remaining counts. Sentencing was to be left to the trial court's discretion. A plea hearing was held on that date and the trial court ordered Foley moved into the Pre-Trial Release Program at Community Corrections in order to complete an intensive outpatient counseling program. Sentencing was set off until January 19, 2007. Foley failed to return to the Community Corrections Work Release Program on December 13, 2006. On December 14, 2006, the State filed one count of Class D felony escape against Foley for his failure to return.

2

Foley and the State reached a supplemental plea agreement incorporating the escape charge. The supplemental plea agreement provided that Foley would plead guilty to the escape charge and receive a one-year sentence for that conviction to be served consecutively to whatever sentence the trial court imposed for the Class C felony possession of methamphetamine conviction. A combined guilty plea and sentencing hearing was conducted on May 11, 2007. The trial court sentenced Foley to seven years for the conviction for possession of methamphetamine and to one year for the escape conviction. The trial court ordered the sentences to run consecutively, and that six years would be served at the Department of Correction followed by two years served in the Tippecanoe County Community Corrections. Foley now appeals the sentence imposed by the trial court. First, Foley argues that the trial court abused its discretion by sentencing him to seven years for the Class C felony conviction, and appears to argue that the trial court omitted from consideration at sentencing evidence of Foley's age and that he accepted responsibility for his actions both at the scene of the arrest and by pleading guilty. Second, Foley argues that the sentence is inappropriate in light of the nature of the offense and the character of the offender. The sentencing range for a Class C felony is a fixed term of between two and eight years, with the advisory sentence being four years. Ind. Code

Download Michael T. Foley v. State of Indiana.pdf

Indiana Law