MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Oct 31 2019, 6:20 am
court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Megan M. Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Derid Becker,                                            October 31, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-503
        v.                                               Appeal from the Noble Circuit
                                                         Court
State of Indiana,                                        The Honorable Michael J. Kramer,
Appellee-Plaintiff,                                      Judge
                                                         Trial Court Cause Nos.
                                                         57C01-1712-FD-4
                                                         57C01-1712-FD-5
                                                         57C01-1712-F6-50



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-503 | October 31, 2019                  Page 1 of 9
                                Case Summary and Issue
[1]   While on probation for a prior conviction, Derid Becker was charged with

      possession of a hypodermic syringe, a Level 6 felony. Becker was accepted into

      the Noble County Problem-Solving Court program (“Drug Court”). Pursuant to

      Becker’s involvement in this program, he pleaded guilty to the charge and

      sentencing was continued pending his participation. Becker was thereafter

      sanctioned by the trial court for a variety of Drug Court violations and was

      ultimately terminated from the program. Consequently, the trial court

      sentenced Becker to two years imprisonment for possession of a hypodermic

      syringe. Becker appeals his sentence, raising one issue for our review: whether

      the two-year sentence was inappropriate in light of the nature of the offense and

      character of the offender. Concluding Becker’s sentence was not inappropriate,

      we affirm.



                            Facts and Procedural History
[2]   On November 20, 2012, Becker pleaded guilty to two counts of theft and was

      sentenced to a total of two years imprisonment, with the sentence suspended to

      probation. Because of an existing sentence, Becker did not begin serving his

      probation until June 26, 2017. Four months later, during a probation search of

      Becker’s residence, a hypodermic syringe modified for the injection of drugs

      was found under his couch. Becker admitted to his probation officer that the

      syringe belonged to him. The State filed a notice of probation violation in



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-503 | October 31, 2019   Page 2 of 9
      Becker’s theft cases and charged Becker with possession of a hypodermic

      syringe, a Level 6 felony.


[3]   On December 14, 2017, Becker signed a participation agreement for Drug

      Court. Becker’s Drug Court participation agreement required Becker, among

      other things, to: 1) attend and successfully complete all treatment

      recommendations and programs; 2) abstain from alcohol and non-prescribed

      drugs; 3) submit to random drug tests; 4) attend four support meetings per week

      during phase 1 of Drug Court; and 5) reside at a “half-way facility” and serve

      home detention until further court order. Appellant’s Appendix, Volume II at

      124-28, 131. If Becker successfully completed Drug Court, the State agreed to

      dismiss the pending probation violations against him.


[4]   Pursuant to this agreement, in December 2017 Becker pleaded guilty to

      possession of a hypodermic syringe, a Level 6 felony, and admitted to violating

      the terms of his probation in the previous theft cases. The trial court continued

      sentencing while Becker participated in the Drug Court program.


[5]   Over the next six months, the trial court found that Becker repeatedly violated

      Drug Court rules, sanctioning him ten times. Violations included missing

      required meetings, missing treatment appointments, neglecting to properly

      notify home detention officials of his travel plans, taking prescription medicine

      more frequently than prescribed, violating basic home detention requirements,

      failing to participate in community service as ordered, arriving late for

      probation appointments, and demonstrating belligerent behavior. During this


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-503 | October 31, 2019   Page 3 of 9
      time period, Becker was also terminated from his half-way facility for behavior

      related to these violations.


[6]   On June 25, 2018, Becker’s probation officer filed a Drug Court Violation

      Report alleging that Becker had violated the terms of his Drug Court

      participation agreement by being evicted from his half-way facility. The Drug

      Court team decided against recommending termination from the Drug Court at

      that time and instead recommended that Becker remain in custody until he

      could be placed in another half-way house and home detention. The trial court

      approved this recommendation.


[7]   After being released from jail into a new half-way house, Becker continued to

      commit violations. These new violations included failing to call the drug screen

      line and offering a diluted drug screen. Due to Becker’s repeated and numerous

      violations, on December 19, 2019, the Drug Court team recommended that

      Becker be terminated from the Drug Court Program. On January 7, 2019, the

      trial court revoked Becker’s participation in Drug Court and set a date for

      sentencing.


[8]   During the sentencing hearing, the trial court listed Becker’s criminal history

      and the fact he committed the offense while on probation for two other offenses

      as aggravating factors. Further, the trial court noted Becker’s numerous Drug

      Court violations prevented his participation in the program from being

      considered as a mitigating factor and further stated that it could find no other




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-503 | October 31, 2019   Page 4 of 9
       mitigating factors. The trial court sentenced Becker to two years imprisonment.

       Becker now appeals his sentence.



                                  Discussion and Decision
                                      I. Standard of Review
[9]    We may review and revise criminal sentences pursuant to the authority derived

       from Article 7, section 6 of the Indiana Constitution. Indiana Appellate Rule

       7(B) empowers us to revise a sentence “if, after due consideration of the trial

       court’s decision, the Court finds that the sentence is inappropriate in light of the

       nature of the offense and the character of the offender.” In reviewing a

       sentence, this court gives deference to the trial court’s sentencing decision

       because Rule 7(B) requires us to give “due consideration” to the decision and

       we recognize the unique perspective of the trial court in making sentencing

       decisions. Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). Such

       deference should prevail unless overcome by compelling evidence portraying in

       a positive light the nature of the offense and the defendant’s character.

       Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Our principal role in Rule

       7(B) review is to “leaven the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225

       (Ind. 2008).


[10]   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). We may

       look to any factors appearing in the record in making such a determination. Reis

       v. State, 88 N.E.3d 1099, 1102 (Ind. Ct. App. 2017). The question under Rule
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-503 | October 31, 2019   Page 5 of 9
       7(B) analysis is “not whether another sentence is more appropriate” but rather

       “whether the sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008). Whether a sentence is inappropriate “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 in a given case.”

       Cardwell, 895 N.E.2d at 1224.


                                  II. Inappropriate Sentence
[11]   We begin with the advisory sentence in determining whether a sentence is

       inappropriate. Childress, 848 N.E.2d at 1081. The advisory sentence for a Level

       6 felony is one year, with a minimum sentence of six months and a maximum

       sentence of two and one-half years. Ind. Code § 35-50-2-7(b). Becker was

       sentenced to two years, which exceeds the advisory sentence, but falls short of

       the maximum sentence allowed.


                                      A. Nature of the Offense
[12]   Becker was on probation for two separate theft convictions at the time he was

       charged with the instant offense. His probation for these crimes had started only

       four months prior to the syringe being found under his couch during a routine

       probation search. Becker was charged under Indiana Code section 16-42-19-18,

       which states: “A person may not possess with intent to: (1) violate this chapter

       [dealing with the possession, use, or sale of legend drugs]; or (2) commit an

       offense [related to controlled substances] described in IC 35-48-4; a hypodermic

       syringe or needle or an instrument adapted for the use of a controlled substance


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-503 | October 31, 2019   Page 6 of 9
       or legend drug by injection in a human being.” The statute does not require

       actual use of a drug. Rather, it requires the possession of a hypodermic needle

       adapted for the use of a controlled substance with the intent to commit a

       violation. See Cooper v. State, 171 Ind. App. 350, 359-60, 357 N.E.2d 260, 265

       (1976) (stating that in order in to sustain a conviction for possession of

       instruments adapted to the use of narcotics, the State must prove that the

       defendant was in possession of the instruments and had the intent to use them

       illegally). Thus, Becker’s argument that he did not actually use an illegal

       substance with the modified syringe, and that this fact should inform our

       perspective of the nature of his offense, is moot. Further, the record makes clear

       that Becker had, in fact, modified a syringe to get high on Suboxone, Percocet,

       methamphetamine, and methadone. Becker’s probation officer stated that

       Becker “was using, um, methamphetamine, Suboxone, methadone and

       Percocet none of which was prescribed to him[.]” Transcript, Volume 2 at 5.

       Becker himself stated that his drugs of choice were opiates and Suboxone and

       upon obtaining a valid prescription, “I shot my own prescription.” Id. at 35.


[13]   The nature of the offense, in light of Becker’s criminal history, demonstrated

       disregard for the law, and continued improper use of drugs (prescription or

       otherwise) provides an adequate foundation for the Becker’s sentence.


                                   B. Character of the Offender
[14]   Becker argues that his character supports a reduction in his sentence.

       Specifically, Becker states that because he pleaded guilty to this crime, his

       sentence should be reduced from the near-maximum. The significance of a
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-503 | October 31, 2019   Page 7 of 9
       guilty plea as a mitigating circumstance varies from case to case. Anglemyer v.

       State, 875 N.E.2d 218, 221 (Ind. 2007) (opinion on reh’g). A guilty plea may not

       be significantly mitigating when it does not demonstrate the defendant’s

       acceptance of responsibility or when the defendant receives a substantial benefit

       in return for the plea. Id.


[15]   Here, the trial court specifically declined to find Becker’s guilty plea a

       mitigating factor. We agree that Becker’s guilty plea in this case does not reflect

       well upon his character because of his past criminal history, commission of an

       offense while on probation, and termination from Drug Court.


[16]   Becker further argues that his “violations of Drug Court rules are relatively

       minor[.]” Amended Brief of the Appellant at 17. Even to the extent this is true,

       the regular and recurring violation of Drug Court rules demonstrates Becker is

       unable to comply with even the most basic requirements imposed by law. The

       Drug Court team excused many of Becker’s violations until it became clear that

       he would be unable to comply for any extended period of time. Indeed, Becker

       was violating rules “almost on a weekly basis[.]” Tr., Vol. 2 at 228. Becker’s

       character does not merit sentence revision under Rule 7(B).


[17]   Based on the facts and circumstances of this case, we conclude that Becker’s

       two-year sentence is not inappropriate in light of the nature of his offense and

       his character. We decline to revise it under Appellate Rule 7(B).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-503 | October 31, 2019   Page 8 of 9
                                               Conclusion
[18]   For the reasons set forth above, we conclude that a two-year sentence is not

       inappropriate in light of Becker’s offense and his character. Therefore, we

       affirm.


[19]   Affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-503 | October 31, 2019   Page 9 of 9
