MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                  Dec 23 2015, 9:49 am
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                                  ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                   Gregory F. Zoeller
Special Asst. to the Henry County                       Attorney General of Indiana
Public Defender
Wieneke Law Office, LLC                                 Karl M. Scharnberg
Plainfield, Indiana                                     Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Joshua A. Cook,                                         December 23, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        33A01-1508-CR-1143
        v.                                              Appeal from the Henry Circuit
                                                        Court
State of Indiana,                                       The Honorable Mary G. Willis,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        33C01-1505-F6-116



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1143 | December 23, 2015   Page 1 of 8
[1]   Joshua A. Cook appeals his sentence for possession of a schedule II controlled

      substance as a level 6 felony. Cook raises one issue which we revise and restate

      as whether his sentence is inappropriate in light of the nature of the offense and

      the character of the offender. We affirm.


                                      Facts and Procedural History

[2]   On May 15, 2015, Cook knowingly and unlawfully possessed a controlled

      substance, oxycodone, listed in schedule II. On May 18, 2015, the State

      charged Cook with Count I, possession of a schedule II controlled substance as

      a level 6 felony; Count II, possession of a schedule IV controlled substance as a

      class A misdemeanor; Count III, possession of a schedule IV controlled

      substance as a class A misdemeanor; Count IV, resisting law enforcement as a

      class A misdemeanor; Count V, possession of paraphernalia as a class A

      misdemeanor; Count VI, possession of marijuana as a class B misdemeanor;

      and Count VII, public intoxication as a class B misdemeanor. The State also

      alleged possession of paraphernalia enhanced to a level 6 felony and possession

      of marijuana enhanced to a class A misdemeanor. On May 20, 2015, the State

      alleged that Cook was an habitual offender.


[3]   On June 4, 2015, Cook and the State entered a plea agreement in which Cook

      agreed to plead guilty to Count I, possession of a controlled substance as a level

      6 felony, and the State agreed to dismiss the remaining counts. On July 16,

      2015, Cook pled guilty and the court dismissed the remaining counts pursuant

      to the State’s motion. Cook stated: “I just want to say that I am sorry for the

      way I had been acting previously and that’s all.” Transcript at 8. The
      Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1143 | December 23, 2015   Page 2 of 8
      prosecutor argued for a sentence of two and one-half years. Cook’s counsel

      argued that the offense did not cause any harm to persons or property, Cook

      would be likely to respond affirmatively to probation or short term

      imprisonment, Cook had never violated probation, imprisonment would create

      an undue hardship on Cook’s dependents, a CHINS case is open, Cook has an

      incentive to do well on probation to reunify with his child, and that Cook pled

      guilty to the offense and accepted responsibility for his actions.


[4]   The court stated:

              Mr. Cook, I am very familiar with your criminal record and it’s
              extensive. Finding of an aggravator is not based upon whether or
              not you completed probation successfully or not it’s the number
              of offenses that you have that builds a criminal history. Your
              criminal history has continued almost unabated since you were a
              juvenile. Secondly, we are going to address to the CHINS cases,
              which are in this Court and the Court takes judicial notice of
              them. Your performance in the CHINS case has not been
              exemplary. Mother’s performance has not been exemplary. She
              has not appeared in Court. So, I reject the Defense argument
              that incarceration would be an undue hardship those [sic]
              children are placed in a safe environment at this time. I do agree
              with your counsel’s assessment that most of these offenses are
              substance abuse related. Left to your own devices you have
              minimally complied with probation, but have done nothing to
              abate your substance abuse issue. Quite frankly, the best
              program that we have in the State of Indiana right now and
              certainly to those person’s [sic] in Henry County available for
              substance abuse treatment is a therapeutic community in the
              Department of Corrections. It’s an intensive, long-term program
              that requires you to live the lifestyle of a clean and sober person
              and the only thing that is going abate [sic] a 17 year drug history
              that your [sic] bringing into the Court today. You’ve gotten a

      Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1143 | December 23, 2015   Page 3 of 8
              significant benefit from the State in the fact that five (5) counts
              were dismissed and you are eligible for Habitual Offender
              Enhancement, which the State agreed to dismiss as a result of
              today’s hearing. So, the Court finds that you do have
              aggravators and that is a history of criminal or delinquent
              activity. The Court finds that you have accepted responsibility
              here today, but that has not always been the case. The Court
              finds no other significant mitigators to be recognized. The Court
              does find that an appropriate sentence is two and a half (2-1/2)
              years in the Indiana Department of Corrections. The Court will
              make you eligible for Purposeful Incarceration Program or
              therapeutic community and if you successfully complete that the
              Court will transport you back here for a modification of the
              balance of your sentence. Getting into that program is up to,
              staying in the that program is up to, but you have to successfully
              complete it.


      Id. at 11-13.


                                                  Discussion

[5]   The issue is whether Cook’s sentence is inappropriate in light of the nature of

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

      that we “may revise a sentence authorized by statute if, after due consideration

      of the trial court’s decision, [we find] that the sentence is inappropriate in light

      of the nature of the offense and the character of the offender.” Under this rule,

      the burden is on the defendant to persuade the appellate court that his or her

      sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[6]   Cook argues that his offense was minor and that he was not attempting to deal

      the oxycodone pills. He contends that his criminal history consists of mainly

      non-violent, low-level felonies, arguably related to his controlled substance
      Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1143 | December 23, 2015   Page 4 of 8
      addiction. He notes that he accepted responsibility for his actions and asserts

      that he has not undergone substance abuse treatment in the past. He also points

      out that the probation officer who completed the presentence investigation

      report (“PSI”) concluded that he was likely to respond well to probation or

      short term imprisonment.


[7]   The State cites to the probable cause affidavit and asserts that Cook was caught

      with a dozen oxycodone tablets along with a number of other pills and

      marijuana and that Cook was in public riding around on his moped with his

      girlfriend while he was intoxicated. The State asserts that, while the nature of

      the offense may not demand a lenient sentence, Cook’s lengthy criminal history

      fairly demands a maximum sentence. The State contends that Cook has been

      involved with the criminal justice systems of at least two states for most of his

      life and that the trial court’s sentence is not inappropriate.


[8]   Cook received the maximum sentence. See Ind. Code § 35-50-2-7(b) (“A person

      who commits a Level 6 felony (for a crime committed after June 30, 2014) shall

      be imprisoned for a fixed term of between six (6) months and two and one-half

      (2 ½) years, with the advisory sentence being one (1) year.”). Regarding the

      imposition of the maximum possible sentence, the Indiana Supreme Court has

      stated:


                [T]he maximum possible sentences are generally most
                appropriate for the worst offenders. This is not, however, an
                invitation to determine whether a worse offender could be
                imagined. Despite the nature of any particular offense and
                offender, it will always be possible to identify or hypothesize a

      Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1143 | December 23, 2015   Page 5 of 8
               significantly more despicable scenario. Although maximum
               sentences are ordinarily appropriate for the worst offenders, we
               refer generally to the class of offenses and offenders that warrant
               the maximum punishment. But such class encompasses a
               considerable variety of offenses and offenders.


       Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002) (citations and quotation

       marks omitted).


[9]    Our review of the nature of the offense reveals that Cook knowingly and

       unlawfully possessed a controlled substance, oxycodone, listed in schedule II.

       Our review of the character of the offender reveals that he pled guilty to

       possession of a controlled substance as a level 6 felony, and the State dismissed

       the remaining counts which included another level 6 felony, four class A

       misdemeanors, and one class B misdemeanor, as well as the allegation that

       Cook was an habitual offender. The PSI indicates that Cook has two biological

       children and two stepchildren. His counsel referenced a CHINS case, the trial

       court stated that his performance in the CHINS case had “not been exemplary,”

       and Cook does not challenge this finding. Transcript at 12. He completed the

       eighth grade, received his GED, enrolled at Indiana State University, and

       secured thirty-two credit hours. The PSI notes Cook’s statement that he

       experienced addiction to opiate-related pharmaceuticals.


[10]   The record reveals that Cook, born on August 12, 1980, has an extensive

       criminal history. As a juvenile, he was alleged to have committed giving a false

       report of a commission of a crime, possessing stolen property, and resisting law

       enforcement. He was also adjudicated delinquent for two counts of theft in

       Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1143 | December 23, 2015   Page 6 of 8
       1996. In 1998, he was charged as an adult with check deception as a class A

       misdemeanor, possession of cocaine as a class D felony, possession of a

       schedule IV controlled substance as a class D felony, and resisting law

       enforcement as a class A misdemeanor, but these charges were dismissed. In

       1999, he was charged with two counts of possession of marijuana as class A

       misdemeanors, but these charges were also dismissed. That same year, he was

       convicted of conversion as a class A misdemeanor and possession of marijuana

       as a class D felony. In 2000, Cook was convicted of theft as a class D felony,

       and the same year he was charged with trespassing as a misdemeanor and

       “Obstruct Police, False Information” as a misdemeanor in Colorado with an

       unknown disposition. Appellant’s Appendix at 60. In 2001, he was convicted

       of escape as a class D felony, and in 2003, he was convicted of theft as a class D

       felony and attempted burglary and burglary as class B felonies. In 2008, he was

       convicted of possession of marijuana and possession of paraphernalia as class A

       misdemeanors, and in 2011, he was convicted of domestic battery as a class D

       felony and of being an habitual offender. His overall risk assessment score

       placed him in the high risk to reoffend category.


[11]   At sentencing, the court stated that the best program available for substance

       abuse treatment was a therapeutic community in the Department of Correction,

       that it would make Cook eligible for the Purposeful Incarceration Program or

       therapeutic community, and that if he successfully completed the court would

       transport him back for a modification of the balance of his sentence.




       Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1143 | December 23, 2015   Page 7 of 8
[12]   After due consideration of the trial court’s decision, and in light of the charges

       that were dismissed in exchange for Cook’s guilty plea and Cook’s criminal

       history, we cannot say that the sentence of two and one-half years is

       inappropriate in light of the nature of the offense and the character of the

       offender.


                                                   Conclusion

[13]   For the foregoing reasons, we affirm Cook’s sentence.


[14]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1143 | December 23, 2015   Page 8 of 8
