MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                                Jul 17 2015, 8:09 am
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
Peter D. Todd                                             Gregory F. Zoeller
Elkhart, Indiana                                          Attorney General of Indiana

                                                          Ellen H. Meilaender
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jason M. Drinsky,                                         July 17, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A03-1501-CR-7
        v.                                                Appeal from the Elkhart Superior
                                                          Court
State of Indiana,                                         The Honorable Evan S. Roberts,
Appellee-Plaintiff                                        Judge

                                                          Case No. 20D01-1409-F4-9




Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1501-CR-7 | July 17, 2015                 Page 1 of 6
                                             Case Summary
[1]   Jason M. Drinsky pled guilty to possessing material capable of causing bodily

      injury by an inmate, as a level 4 felony. The trial court sentenced Drinsky to

      ten years’ imprisonment with four years suspended. Drinsky appeals, claiming

      that his sentence is inappropriate in light of the nature of the offense and his

      character. Concluding that Drinsky has not met his burden to show that the

      sentence imposed by the trial court is inappropriate, we affirm.


                                  Facts and Procedural History
[2]   On July 11, 2014, a law enforcement officer with the Elkhart County Sheriff’s

      Department received information that Drinsky, an inmate at the Elkhart

      County Correctional Facility, was in possession of a white plastic spoon handle

      that had been sharpened to a point. This item is commonly known as a

      “shank.” Appellant’s App. at 80. A subsequent search revealed that Drinsky

      was carrying the shank in his shirt pocket. Drinsky admitted that he knowingly

      possessed the weapon but denied that he intended to use it to harm anyone.

      Instead, Drinsky claimed that he intended to give the shank to authorities but

      was caught with it before he could do so.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1501-CR-7 | July 17, 2015   Page 2 of 6
[3]   The State charged Drinsky with level 4 felony possessing material capable of

      causing bodily injury by an inmate. 1 Drinsky pled guilty to the offense, as well

      as to two other pending charges. Following a sentencing hearing, the trial court

      imposed a ten-year sentence, with four years suspended to probation, for the

      current offense, to be served consecutive to the sentences imposed on the other

      charges. Drinsky appeals only the ten-year sentence.


                                          Discussion and Decision
[4]   Drinsky invites this Court to reduce his ten-year sentence pursuant to Indiana

      Appellate Rule 7(B), which 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.” The defendant bears the burden to persuade this Court that

      his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080

      (Ind. 2006). “[W]hether we regard a sentence as appropriate at the end of the

      day turns on our sense of the culpability of the defendant, the severity of the

      crime, the damage done to others, and myriad other factors that come to light




      1
          Indiana Code Section 35-44.1-3-7 provides:

                 A person who knowingly or intentionally while incarcerated in a penal facility possesses a
                 device, equipment, a chemical substance, or other material that:
                 (1) is used; or

                 (2) is intended to be used;
                 in a manner that is readily capable of causing bodily injury commits a Level 5 felony.
                 However, the offense is a Level 4 felony if the device, equipment, chemical substance, or
                 other material is a deadly weapon.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1501-CR-7 | July 17, 2015                      Page 3 of 6
      in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). We

      recognize that the “principal role of appellate review should be to attempt to

      leaven the outliers and to 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.” Id. at 1225. Indeed, “[t]he question

      under Appellate Rule 7(B) is not whether another sentence is more appropriate:

      rather, the question is whether the sentence imposed is inappropriate.” King v.

      State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).


[5]   Our supreme court has stated that when considering the appropriateness of a

      sentence, we must consider not only the aggregate length of the sentence

      imposed, but also whether a portion of the sentence is ordered suspended.

      Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). A level 4 felony has a

      sentencing range between two and twelve years, with the advisory sentence

      being six years. Ind. Code § 35-50-2-5.5. Drinsky received a ten-year sentence

      with four years suspended to probation, resulting in a six-year executed

      sentence, the same as the level 4 felony advisory sentence.


[6]   Regarding the nature of the offense, Drinsky knowingly while incarcerated

      possessed an item that had been fashioned into a deadly weapon: a shank. The

      record indicates that when the shank was discovered by authorities, Drinsky

      was carrying the shank concealed in his shirt pocket. Undoubtedly, having the

      shank in a shirt pocket and readily accessible increases the severity of the

      offense. Drinsky downplays his possession of the shank by claiming that he

      did not intend to use it to hurt anyone and that, at the time he was caught, he

      Court of Appeals of Indiana | Memorandum Decision 20A03-1501-CR-7 | July 17, 2015   Page 4 of 6
      was planning to give the weapon to a prison investigator whom he trusted.

      However, Drinsky admits that he possessed the deadly weapon for several days

      and, despite the opportunity to place the weapon in a prison drop-box made

      available to prisoners for the very purpose of disposing of contraband they do

      not wish to possess, Drinsky failed to do so. These facts do not convince us

      that a six-year executed sentence is inappropriate based upon the nature of

      Drinsky’s crime.


[7]   Regarding his character, Drinsky does not fare much better. He is clearly no

      stranger to conflict, violence, or our criminal justice system. Drinsky has prior

      class A misdemeanor convictions for domestic battery and interference with

      reporting a crime. He was granted the grace of probation only to then violate it.

      At the time Drinsky committed the current crime, he was incarcerated and

      facing charges of two counts of class C felony stalking and four counts of class

      A misdemeanor invasion of privacy. The probable cause affidavits for those

      charges indicate that Drinsky engaged in violent, threatening, and antisocial

      behavior toward his ex-wife and her boyfriend. He eventually pled guilty to one

      count of class D felony stalking and one count of class A misdemeanor invasion

      of privacy. As with his prior history, his most recent criminal history does not

      reflect favorably on his character. A sentence reduction is not warranted under

      the circumstances.


[8]   Drinsky has failed to meet his burden to demonstrate that the sentence imposed

      by the trial court is inappropriate based upon the nature of the offense or his

      character. Therefore, we affirm his sentence.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1501-CR-7 | July 17, 2015   Page 5 of 6
[9]   Affirmed.


      Brown, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1501-CR-7 | July 17, 2015   Page 6 of 6
