Court of Appeals of Indiana | Memorandum Decision 19A-CR-1050 | September 30, 2019 Page 1 of 9

MEMORANDUM DECISION

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

Zachary A. Witte

Locke & Witte

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Courtney Staton

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Robert S. Potter, II,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 30, 2019

Court of Appeals Case No.

19A-CR-1050

Appeal from the Allen Superior 

Court

The Honorable Frances Gull, 

Judge

Trial Court Cause No.

02D05-1812-F6-1515

Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1050 | September 30, 2019 Page 2 of 9

Statement of the Case

[1] Robert S. Potter, II (“Potter”) appeals following his guilty plea to Level 6 felony

unlawful possession of a syringe,

1 Class A misdemeanor resisting law 

enforcement,2 Class C misdemeanor possession of paraphernalia.3 He argues 

that the two-year sentence imposed for his Level 6 felony conviction is 

inappropriate. Concluding that Potter has failed to show that his sentence is 

inappropriate, we affirm his sentence.

[2] We affirm.

Issue

Whether Potter’s sentence is inappropriate pursuant to Indiana 

Appellate Rule 7(B).

Facts

[3] In December 2018, the State charged Potter with Level 6 felony unlawful 

possession of a syringe, Class A misdemeanor resisting law enforcement, Class 

C misdemeanor possession of paraphernalia in this current case, Cause 02D05-

1812-F6-1515 (“Cause F6-1515”). Potter was released on bond from Cause F6-

1515 on December 15, 2018.

1

IND. CODE § 16-42-19-18.

2

IND. CODE § 35-44.1-3-1.

3

I.C. § 35-48-4-8.3.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1050 | September 30, 2019 Page 3 of 9

[4] Approximately one month later, the State charged Potter with committing 

additional crimes while out on bond. Specifically, on January 22, 2019, the 

State charged Potter, under Cause 02D05-1901-F6-97 (“Cause F6-97”), with 

Level 6 felony unlawful possession of a syringe and Class B misdemeanor 

possession of marijuana. Two days later, the State charged Potter with Level 6 

felony unlawful possession of a syringe in Cause 02D05-1901-F6-95 (“Cause 

F6-95”).

[5] On February 4, 2019, he pled guilty as charged in Cause F6-1515, Cause F6-97, 

and Cause F6-95.4 The trial court took his pleas under advisement and placed 

Potter into the Allen County Drug Court Treatment Program (“drug court 

program”). On February 25, 2019, Potter failed to appear in court for a drug 

court program compliance hearing. Thereafter, the trial court revoked Potter’s 

bond and issued a warrant for his arrest. Potter was also terminated from the 

drug court program. 

[6] In April 2019, the trial court held a joint sentencing hearing for Cause F6-1515, 

Cause F6-97, and Cause F6-95. At the time of the sentencing hearing, Potter 

had a pending cause, Cause 02D04-1903-F6-266, in which he had been charged 

with Level 6 felony unlawful possession of a syringe, Class A misdemeanor 

resisting law enforcement, Class B misdemeanor false informing. He also had 

4

Potter did not include a copy of his plea agreements in his Appendix. Additionally, the transcript of 

Potter’s guilty plea hearing is not included in the record on appeal because he did not request transcription of 

it when he filed his notice of appeal. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1050 | September 30, 2019 Page 4 of 9

an active warrant from Tennessee for probation violations in three separate 

causes. Potter admitted that he was addicted to drugs and that he had used 

heroin and methamphetamine. 

[7] The presentence investigation report (“PSI”) revealed that thirty-six-year-old 

Potter has a criminal history dating back to 2001 when he was nineteen years 

old, and it includes thirty-five convictions spanning three states. His felony 

convictions include the following: aggravated assault with a deadly weapon 

(2002 in Florida); possession of cocaine (2007 in Florida); drug possession of a 

controlled substance (2009 in Florida); sale of a schedule II drug (2010 in 

Tennessee); and possession with intent to sell (2010 in Tennessee). Potter also 

amassed the following misdemeanor convictions: theft (2001 in Florida); 

culpable negligence with a motor vehicle (2002 in Florida); illegal possession of 

alcohol by a minor (2002 in Florida); resisting/obstructing an officer (2002 in 

Florida); criminal impersonation (2004 in Tennessee); reckless driving (2004 in 

Florida); evading arrest (2004 in Tennessee); theft by shoplifting (2006 in 

Tennessee); possession of drug paraphernalia (2006 in Tennessee); theft (2007 

in Florida); operating while driver’s license suspended (2007 in Florida); three 

different convictions for possession of drug paraphernalia (all three in 2007 in 

Florida); driver’s license suspended/revoked (2007 in Florida); theft (2008 in 

Florida); loitering (2009 in Florida); theft (2010 in Tennessee); invasion of 

privacy (2010 in Indiana); domestic assault (2010 in Tennessee); simple 

possession/casual exchange (2010 in Tennessee); possession of drug 

paraphernalia (2010 in Tennessee); driving while suspended (2010 in 
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Tennessee); theft (2012 in Tennessee); possession of a legend drug (2012 in 

Tennessee); driving while license is cancelled (2012 in Tennessee); criminal 

trespass (2014 in Tennessee); and aggravated criminal trespass (2014 in 

Tennessee). 

[8] When sentencing Potter, the trial court found his guilty plea, acceptance of 

responsibility, and remorse to be mitigating circumstances. When discussing 

aggravating circumstances, the trial court stated:

The Court does find as an aggravating circumstance your prior 

criminal record with failed efforts at rehabilitation covering a 

period of time from 2001 to 2018; you are a multi-state offender 

in Indiana, Tennessee, and Florida; you have 29 misdemeanor 

convictions and six prior felony convictions. You’ve been given 

short jail sentences, longer jail sentences, active adult probation, 

community control, unsupervised probation, multiple attempts at 

treatment, and then the Drug Court Program. In [C]ause F6-97, 

you were on bond [from Cause F6-1515] at the time you 

committed that offense. I note that you’ve got active warrants 

pending in Tennessee for probation violations and there are 

pending charges filed here in Allen Superior Court. . . . I agree 

with your attorney . . . that it’s a miracle that you’re here. You 

are 36 years old; according to your letter, you have overdosed 

five times, three of which required professional medical 

intervention, one with hospitalization. We take folks in the Drug 

Court Program, Mr. Potter, as we find them. Unfortunately, we 

found you, you came into the Drug Court Program, and you 

were not ready for Drug Court, and that’s really unfortunate 

because that was really your best opportunity to get clean and 

stay clean, and I hope you’re ready now. I mean, you weren’t 

ready when you started. I think your attorney is correct in saying 

you need to sit down for a real long time and let recovery take 

over your life, because if it doesn’t, Robert, I don’t want to read 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1050 | September 30, 2019 Page 6 of 9

your name in the obituaries and that’s where it’s gonna end up if 

you cannot get this under control. You have the ability to do 

that. You’re not a failure. 

(Tr. Vol. 2 at 9-10). For Cause F6-1515, the cause on appeal, the trial court 

imposed concurrent terms of two (2) years for Potter’s Level 6 felony unlawful 

possession of a syringe conviction, one (1) year for his Class A misdemeanor 

resisting law enforcement conviction, and sixty (60) days for his Class C 

misdemeanor possession of paraphernalia conviction.5 The trial court also 

recommended that Potter be placed in the Recovery While Incarcerated 

program. Potter now appeals.6

Decision

[9] Potter argues only that his sentence for his Level 6 felony unlawful possession 

of a syringe is inappropriate. He asks this Court to decrease his Level 6 felony 

sentence to a term of one year. 

[10] We may revise a sentence if it is inappropriate in light of the nature of the 

offense and the character of the offender. Ind. Appellate Rule 7(B). The 

5

In Cause F6-97, the trial court imposed concurrent terms of two (2) years for Potter’s Level 6 felony 

unlawful possession of a syringe conviction and 180 days for his Class B misdemeanor possession of 

marijuana conviction. The trial court ordered that Potter’s sentence in Cause F6-97 be served consecutively

to his sentence in Cause F6-1515. For Cause F6-95, the trial court imposed a two (2) year sentence for 

Potter’s Level 6 felony unlawful possession of a syringe conviction and ordered it to be served concurrently to 

Cause F6-97.

6

Potter has also filed an appeal of his sentence in Cause F6-97. The appellate cause number for that appeal 

is 19A-CR-1040, and a memorandum decision in that appellate cause is being handed down on the same day 

as this current appeal. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1050 | September 30, 2019 Page 7 of 9

defendant has the burden of persuading us 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.

[11] When determining whether a sentence is inappropriate, we acknowledge that 

the advisory sentence “is the starting point the Legislature has selected as an 

appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081. 

In this cause, Potter entered a guilty plea and was convicted of Level 6 felony 

unlawful possession of a syringe, Class A misdemeanor resisting law 

enforcement, Class C misdemeanor possession of paraphernalia. A Level 6 

felony has a sentencing range of six (6) months to two and one-half (21⁄2) years 

with an advisory sentence of one (1) year. I.C. § 35-50-2-7(b). The trial court 

imposed a sentence of two (2) years for Potter’s Level 6 felony conviction.

7

 

Thus, the trial court imposed a sentence below the maximum allowed under the 

7 The trial court also imposed concurrent terms of one year for his Class A misdemeanor conviction and sixty 

days for his Class C misdemeanor conviction, but he does not challenge these sentences as inappropriate.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1050 | September 30, 2019 Page 8 of 9

statute. Additionally, the trial court recommended that Potter be placed in a 

drug treatment program while incarcerated.

[12] Turning first to the nature of Potter’s unlawful possession of a syringe offense, 

we note that the probable cause affidavit attached to the PSI indicates that a 

police officer encountered Potter at the home of a person who was on home 

detention. While the officer was doing a home detention check of the 

residence, he saw Potter quickly put something into his front pants pocket. The 

officer patted down Potter and discovered a pipe used to smoke 

methamphetamine. Potter pulled away from the officer and attempted to grab 

the pipe from his pocket. Potter then struggled with the officer when being 

secured in handcuffs. As the officer continued his pat down of Potter, he found 

a syringe in Potter’s pocket, and Potter told the officer that he had used it to 

inject himself with heroin. 

[13] Turning to Potter’s character, we note that his poor character is revealed by an 

extensive criminal history that spans decades and includes multiple probation 

revocations. His criminal history includes twenty-nine misdemeanor and six 

felony convictions. Potter was convicted of Level 6 felony unlawful possession 

of a syringe in each of the three causes involved in his sentencing hearing, and, 

at the time of sentencing, he had a pending charge for Level 6 felony unlawful 

possession of a syringe conviction in another cause. Potter admitted that he 

was addicted to drugs. Additionally, the PSI shows that Potter, during various 

periods of his life, has used alcohol, marijuana, acid, ecstasy, cocaine, heroin, 

and methamphetamine. Indeed, his use of many of these drugs included daily 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1050 | September 30, 2019 Page 9 of 9

use for multiple years. The trial court gave Potter the opportunity to participate 

in the drug court program, but he squandered that chance. Potter’s criminal 

history and current offenses show that he has a disregard for the law.

[14] Potter has not persuaded us that his two-year sentence for his Level 6 felony 

unlawful possession of a syringe conviction is inappropriate. Therefore, we 

affirm the sentence imposed by the trial court.

[15] Affirmed.

Robb, J., and Mathias, J., concur.