MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                             FILED
this Memorandum Decision shall not be                         May 26 2016, 9:12 am
regarded as precedent or cited before any
                                                                   CLERK
court except for the purpose of establishing                   Indiana Supreme Court
                                                                  Court of Appeals
the defense of res judicata, collateral                             and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Randy M. Fisher                                         Gregory F. Zoeller
Deputy Public Defender                                  Attorney General of Indiana
Leonard, Hammond, Thoma & Terrill
                                                        Lyubov Gore
Fort Wayne, Indiana                                     Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Eric John Tulk,                                         May 26, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A05-1512-CR-2228
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Wendy W. Davis,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        02D06-1506-F5-200



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A05-1512-CR-2228 | May 26, 2016    Page 1 of 7
[1]   Eric Tulk appeals the aggregate six-year sentence imposed by the trial court

      after Tulk was convicted of Dealing in Methamphetamine,1 a Level 5 felony,

      Possession of Methamphetamine,2 a Level 6 felony, and Possession of

      Chemical Reagents or Precursors With Intent to Manufacture, 3 a Level 6

      felony. Tulk argues that the trial court abused its discretion by declining to find

      one of his proffered mitigators and that the sentence is inappropriate in light of

      the nature of the offenses and his character. Finding no error and that the

      sentence is not inappropriate, we affirm.


                                                    Facts
[2]   In early June 2015, Tulk and his wife were evicted from their home and began

      staying with Tulk’s friend, William Snare. Tulk and his wife stayed in the

      Snares’ garage while Snare, his wife, and their two minor children lived in the

      home. At some point, detectives with the Fort Wayne Police Department

      became suspicious about possible drug-related activity and began surveilling the

      Snares’ home.


[3]   Based on their observations, the detectives obtained a search warrant, which

      they executed on June 23, 2015. The detectives found Tulk and his wife in the

      garage with an active methamphetamine lab. The garage also contained




      1
          Ind. Code § 35-48-4-1.1.
      2
          I.C. § 35-48-4-6.1.
      3
          I.C. § 35-48-4-14.5.


      Court of Appeals of Indiana | Memorandum Decision 02A05-1512-CR-2228 | May 26, 2016   Page 2 of 7
      precursors and products consistent with the manufacture of methamphetamine,

      including bottles of “liquid fire,” coffee filters, chunks of lithium, pen tubes, and

      straws that tested positive for methamphetamine. Tr. p. 96-98. When Tulk was

      taken into custody, he smelled strongly of chemicals associated with the

      manufacture of methamphetamine. The Snares’ two children, who were in the

      home when the search warrant was executed, were taken into custody by the

      Department of Child Services. The Snares’ garage had to be condemned as a

      result of the dangerous chemicals present in the building.


[4]   On June 29, 2015, the State charged Tulk with Level 5 felony dealing in

      methamphetamine, Level 6 felony possession of methamphetamine, Level 6

      felony possession of chemical reagents or precursors with intent to

      manufacture, and class A misdemeanor possession of paraphernalia. Following

      Tulk’s November 3 and 4, 2015, jury trial, the jury found him guilty of the first

      three offenses and not guilty of the last. The trial court held a sentencing

      hearing on November 23, 2015, and sentenced Tulk to concurrent terms of six

      years for dealing in methamphetamine and two years each for possession of

      methamphetamine and possession of chemical reagents or precursors. Tulk

      now appeals.


                                   Discussion and Decision
                                       I. Mitigating Factor
[5]   First, Tulk argues that the trial court abused its discretion by declining to find

      his history of substance abuse as a mitigating factor. We will review the trial

      Court of Appeals of Indiana | Memorandum Decision 02A05-1512-CR-2228 | May 26, 2016   Page 3 of 7
      court’s decision in this regard for an abuse of discretion. A trial court may

      impose any sentence authorized by statute and must provide a sentencing

      statement that gives a reasonably detailed recitation of the trial court’s reasons

      for imposing a particular sentence. Anglemyer v. State, 868 N.E.2d 482, 490

      (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). The trial court is not

      required to accept a defendant’s arguments as to what constitutes a mitigating

      factor, nor is it required to explain why it did not find a factor to be mitigating.

      Sherwood v. State, 749 N.E.2d 36, 38 (Ind. 2001); Page v. State, 878 N.E.2d 404,

      408 (Ind. Ct. App. 2007).


[6]   While a history of substance abuse may be mitigating, this Court has held that

      “when a defendant is aware of a substance abuse problem but has not taken

      appropriate steps to treat it, the trial court does not abuse its discretion by

      rejecting the addiction as a mitigating circumstance.” Hape v. State, 903 N.E.2d

      977, 1002 (Ind. Ct. App. 2009). Here, Tulk states that he has had a substance

      abuse problem since the age of fifteen. He admits that throughout his life he

      has abused alcohol, marijuana, powder cocaine, crack cocaine, LSD, heroin,

      mushrooms, methamphetamine, and opiate prescription pills. He is now forty-

      four years old, but in the three decades during which he has experienced

      substance abuse issues, he has participated in substance abuse treatment only

      once through the Department of Correction. By his own admission, Tulk’s

      substance abuse problem has caused him to commit crimes in the past. Given

      that Tulk has done little to nothing to address his substance abuse problem, we




      Court of Appeals of Indiana | Memorandum Decision 02A05-1512-CR-2228 | May 26, 2016   Page 4 of 7
      find that the trial court did not abuse its discretion by declining to find this to be

      a mitigator.


                                       II. Appropriateness
[7]   Tulk also argues, pursuant to Indiana Appellate Rule 7(B), that the aggregate

      six-year sentence imposed by the trial court is inappropriate in light of the

      nature of the offenses and his character. Rule 7(B) provides that this Court may

      revise a sentence if it is inappropriate in light of the nature of the offense and the

      character of the offender. We must “conduct [this] review with substantial

      deference and give ‘due consideration’ to the trial court’s decision—since the

      ‘principal role of [our] review is to attempt to leaven the outliers,’ and not to

      achieve a perceived ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274,

      1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013))

      (internal citations omitted).


[8]   Here, Tulk was convicted of one Level 5 felony and two Level 6 felonies. For

      the Level 5 felony, Tulk faced a sentence of one to six years, with an advisory

      term of three years. Ind. Code § 35-50-2-6. Tulk received a maximum six-year

      term. For the Level 6 felonies, Tulk faced sentences of six months to two and

      one-half years, with an advisory term of one year. I.C. § 35-50-2-7. He

      received a two-year term for each of these convictions. All terms were ordered

      to be served concurrently, meaning Tulk received an aggregate sentence of six

      years. Additionally, the trial court placed Tulk into a therapeutic incarceration

      community that is specifically targeted at ameliorating his methamphetamine


      Court of Appeals of Indiana | Memorandum Decision 02A05-1512-CR-2228 | May 26, 2016   Page 5 of 7
       use, and also noted that it would consider modifying his sentence upon his

       successful completion of that program.


[9]    As for the nature of Tulk’s offenses, he was manufacturing methamphetamine

       at a home in which he was staying as a guest. There were two minor children

       present in the home while he was manufacturing the drug. Our Supreme Court

       has recognized that the process of manufacturing methamphetamine is very

       dangerous and poses a high risk of explosion and fire. Holder v. State, 847

       N.E.2d 930, 939-40 (Ind. 2006). Tulk’s actions placed multiple innocent lives

       in immediate danger. Moreover, the Snares’ home was raided by a SWAT

       team, two children were taken into custody by the Department of Child

       Services, and the garage had to be condemned because of the hazardous

       chemicals, all as a result of Tulk’s actions. We do not find that the nature of

       Tulk’s offenses aids his inappropriateness argument.


[10]   With respect to Tulk’s character, we observe that he has a lengthy and

       significant criminal history. Specifically, he has amassed six juvenile

       adjudications, three misdemeanor convictions, and eight felony convictions,

       across two states. Tulk has five prior convictions for burglary alone, which he

       admits were committed to support his substance abuse behaviors. He has been

       afforded lenient sentences in the past, including probation and parole on

       multiple occasions, but has violated the terms of those lenient sentences at least

       four times. All prior attempts to rehabilitate Tulk have failed, and his behavior

       creates a threat to the community. His character evinces an unwillingness or

       inability to respect the rule of law and his fellow citizens.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1512-CR-2228 | May 26, 2016   Page 6 of 7
[11]   The trial court told Tulk that “I’m not sure what else the County can do for

       you. We’ve done everything we can, and rehabilitation has failed.” Tr. p. 11.

       Given this record, we cannot say that the trial court erred in drawing this

       conclusion. We note that the trial court showed admirable leniency in placing

       Tulk in a therapeutic incarceration community and in remaining open to

       modifying Tulk’s sentence if he successfully completes that program. In sum,

       we find that the aggregate six-year sentence imposed by the trial court is not

       inappropriate in light of the nature of the offenses and Tulk’s character.


[12]   The judgment of the trial court is affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1512-CR-2228 | May 26, 2016   Page 7 of 7
