COA: Trial court didn’t err in denying drug dealing sentencing modification

A trial court didn’t err when it summarily denied a drug dealer’s request to modify his sentence, the Indiana Court of Appeals has ruled.

In 2013, a detective with the Hamilton-Boone County Drug Task Force began working with a confidential informant to arrange a controlled buy of drugs from Joe Bobish. The informant went to Bobish’s residence while wearing a transmitter and recorder.

After a few minutes, a vehicle stopped in front of the house and Bobish went outside and briefly talked to the driver, Torri Newman. Bobish then went back inside, gave cocaine to the informant and took money from the buyer. Bobish returned to Newman’s vehicle, where he sat in the passenger seat for a minute or two before going back home.

A detective ordered officers to follow Newman’s vehicle away from the residence and stop it. Without observing a traffic violation, the officers stopped Newman, immediately placed him in handcuffs and arrested him.

Newman’s vehicle was later searched, and contraband was found. Newman subsequently gave consent to search his Marion County apartment, where officers discovered additional contraband, including cocaine.

In 2016, Newman was tried and convicted in Marion County of Class C felony possession of cocaine, Class D felony possession of a controlled substance and Class D felony possession of marijuana. He was sentenced to six years for those offenses.

Newman’s first trial on the Hamilton County charges ended in a mistrial, but after a second trial in April 2017, he was convicted of Class A felony dealing in cocaine. The following month, the Hamilton Superior Court sentenced him to 30 years in the Department of Correction to be served consecutively with his sentence for the Marion County offenses.

Newman finished serving his sentence for the Marion County offenses in 2018 and began serving his sentence for the Hamilton County conviction.

On Dec.17, 2020, at Newman’s request, the DOC filed a progress report with the trial court. The report indicated Newman had completed MRT and Project Echo, DOC programs meant to address his attitude and employability, among other things. Additionally, the progress report indicated Newman was currently enrolled in PLUS Character 2.0, was a mentor in the prison’s SNAP program, had been employed while incarcerated and had not received any conduct violations during his commitment.

In March, Newman filed a petition to modify his sentence, citing the information contained in his DOC progress report. He attached several letters from members of the community attesting to his positive character, employment record and community involvement. But the state objected to any modification of Newman’s sentence, arguing that his criminal record consisting of two misdemeanors and five felonies did not justify a sentence modification.

The trial court denied Newman’s petition without holding a hearing, so he filed a motion to reconsider. He argued, for the first time, that what Newman contended was the favorable treatment of his co-defendant, Bobish, compelled a sentence modification in his own case. The trial court did not rule on Newman’s motion to reconsider.

On appeal, the appellate judges found the trial court’s denial appropriate.

“Given Newman’s culpability and criminal record, we conclude that it was not an abuse of the trial court’s discretion to determine that sentence modification was unwarranted after Newman had served less than four years of his thirty-year, advisory sentence,” Judge Patricia Riley wrote for the COA. “In his argument on appeal, Newman has not presented us with any legal authority indicating that a trial court abuses its discretion in denying a sentence modification under circumstances similar to his.”

The COA also denied Newman’s contention that his sentencing was harsher than Bobish’s because of his ethnicity.

“In addressing these arguments, we first observe that Newman improperly raised them for the first time in his motion to reconsider, after the trial court had already denied his petition to modify his sentence,” the COA opined, pointing to Hubbard v. Hubbard, 690 N.E.2d 1219, 1221 (Ind. Ct. App. 1998).

The court said even if the arguments were properly before them, they would be unavailing.

“Newman’s arguments are premised on his contention that only disparate race could account for the disparate treatment between him and Bobish,” Riley wrote. “This contention is faulty, as unlike Newman, Bobish elected to plead guilty and negotiated a favorable plea agreement which explicitly provided for the possibility of a sentencing modification. We do not agree with Newman’s assessment that he was somehow less culpable than Bobish just because Bobish was the original target of law enforcement … .”

The case is Torri Newman v. State of Indiana, 21A-CR-872.

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