MEMORANDUM DECISION
                                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),                                    May 18 2016, 7:59 am
this Memorandum Decision shall not be
                                                                               CLERK
regarded as precedent or cited before any                                  Indiana Supreme Court
                                                                              Court of Appeals
court except for the purpose of establishing                                    and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Bryan M. Truitt                                         Gregory F. Zoeller
Valparaiso, Indiana                                     Attorney General of Indiana

                                                        Katherine Modesitt Cooper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Eric Heinrichs,                                         May 18, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        64A05-1511-CR-1894
        v.                                              Appeal from the Porter Superior
                                                        Court
State of Indiana,                                       The Honorable William E. Alexa,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        64D02-1307-FB-6650



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 64A05-1511-CR-1894 | May 18, 2016                Page 1 of 8
[1]   Eric Heinrichs appeals his sentence for two counts of dealing in cocaine or

      narcotic drugs as class B felonies. Heinrichs raises one issue which we revise

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

      offenses and the character of the offender. We affirm.


                                           Facts and Procedural History

[2]   On February 21, 2013, at two different times, Heinrichs sold a total of 0.17

      grams of heroin to a confidential informant. On July 24, 2013, the State

      charged him with two counts of dealing in cocaine or narcotic drugs as class B

      felonies.


[3]   On December 20, 2013, Heinrichs and the State filed a Recommendation of

      Plea Negotiation (the “Recommendation”) which stated that Heinrichs would

      plead guilty as charged and be sentenced to Porter County Drug Court, and that

      if he did not qualify or did not successfully complete drug court, then

      sentencing would be at the discretion of the court. The Recommendation,

      which was signed by Heinrichs and his counsel, also stated that Heinrichs

      waived his right to appeal his sentence.


[4]   On January 31, 2014, the court held a hearing,1 accepted the Recommendation,

      sentenced Heinrichs to the Porter County Drug Court, and stated: “If defendant

      does not successfully complete Drug Court, the defendant will be returned to

      this Court for sentencing at the Court’s discretion. If Defendant does



      1
          The record does not contain a copy of the transcript of this hearing.


      Court of Appeals of Indiana | Memorandum Decision 64A05-1511-CR-1894 | May 18, 2016   Page 2 of 8
      successfully complete Drug Court, these judgments will be set aside and this

      cause would be dismissed.” Id. at 49.


[5]   On August 12, 2015, the court held a hearing at which Heinrichs, his attorney,

      and team members were present.2 Two days later, the court entered an order

      finding that Heinrichs had eleven proven and/or admitted violations, both

      behavioral and drug-use related. The court found that Heinrichs “refuses to

      follow the rules and regulations of the Drug Court Program, that most of his

      violations are schedule violations, lying and total disregard of Court Orders.”

      Id. at 100. The court ordered Heinrichs terminated from the Program and that

      he be returned to the court for further proceedings.


[6]   On October 9, 2015, the court held a hearing. Lita Renee Peters, an employee

      of Respite House, testified that Heinrichs came to Respite House on November

      22, 2013, that he became employed and had a couple of jobs, and that he was

      drug tested ten times and passed the tests. When asked whether Heinrichs

      complied with the rules of Respite House while he was there, Peters answered:

      “For the most part. He had a few demerits but nothing major.” Transcript at 5.

      She stated that Heinrichs was “a little delusional from time to time” and that

      when he met with his case managers he had a problem “distinguishing that he

      was there for business rather than pleasure.” Id. at 6. She also testified that she

      had heard that he had relapsed. The court then asked Peters if she was aware




      2
          The record does not contain a copy of the transcript of this hearing.


      Court of Appeals of Indiana | Memorandum Decision 64A05-1511-CR-1894 | May 18, 2016   Page 3 of 8
      there was a termination hearing held on August 12th and that the court had

      found that Heinrichs had eleven proven and/or admitted violations for both

      behavior and drug use, and Peters responded that she was not. She also

      testified that she thought a lot of Heinrichs’s “problems are addiction and

      mental.” Id. at 10.


[7]   At the hearing, Heinrichs stated:


              Your Honor, humbly, I take full responsibility for losing sight
              and failing my program. I have absolutely nothing but the
              highest regard for my case workers and the honorable Judge Jent.
              As I put time, they put – as they put time in, they helped me and
              I am grateful to them all. Truthfully, I am deeply saddened by
              this current situation, however, I have a great progress and
              continuing progress in my life. And I’ve [sic] very blessed for all
              the events that have taken place. It has helped my growth in life
              and my relationship with God, and I thank you for your
              discretion and consideration on this matter.


      Id. at 11.


[8]   The court noted that Heinrichs has had problems dealing with drugs and that he

      probably has mental health issues as well, and sentenced him to concurrent

      terms of six years for each count in the Department of Correction (“DOC”).

      The court recommended that Heinrichs be placed in the DOC’s Purposeful

      Incarceration program which deals with both drug and mental health issues.

      The court stated that “[s]hould [he] successfully complete the program, the

      Court may consider a modification.” Appellant’s Appendix at 112. Further,

      the court said:

      Court of Appeals of Indiana | Memorandum Decision 64A05-1511-CR-1894 | May 18, 2016   Page 4 of 8
               I told you back at the change of plea, that you’d be waiving
               certain rights, one of which was the right to appeal it. And that
               is, in fact, true, except when you have failed to complete the drug
               court and the sentencing at my discretion. That changes it. You
               have a right to appeal the sentencing decision but not the plea
               itself. You are entitled to take that particular course of action, if
               you wish.


       Transcript at 17-18.


                                                   Discussion

[9]    The issue is whether Heinrichs’s sentence is inappropriate in light of the nature

       of the offenses and his character. He argues that he stands guilty of providing a

       willing buyer a narcotic drug, that the confidential informant actively sought

       out the drugs that he sold, and that he was simply supplying a demand to

       support his own addiction. He asserts that his failures were due to his mental

       health issues, and requests that we remand with instructions to resentence him

       to six years with all but time served suspended, with placement at Respite

       House and dual diagnosis treatment as a condition of probation.


[10]   The State argues that Heinrichs waived the right to challenge his sentence on

       any grounds under the plea agreement. It contends that, to the extent the trial

       court may have given an ambiguous advisement of the right to appeal at the

       conclusion of the sentencing hearing, in light of the express waiver provision

       contained in the agreement, the advisement is irrelevant and does not invalidate

       the waiver. The State also asserts, waiver notwithstanding, that the sentence is

       not inappropriate.


       Court of Appeals of Indiana | Memorandum Decision 64A05-1511-CR-1894 | May 18, 2016   Page 5 of 8
[11]   Even assuming, without deciding, that Heinrichs did not waive the right to

       appeal his sentence, Heinrichs would not prevail. 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).


[12]   Our review of the nature of the offense reveals that Heinrichs sold a total of

       0.17 grams of heroin to a confidential informant on two different occasions on

       the same day. Our review of the character of the offender reveals that Heinrichs

       pled guilty as charged but agreed to be sentenced to the Porter County Drug

       Court. According to the presentence investigation report (“PSI”), Heinrichs,

       who was born in 1969, stated that he has been addicted to drugs for twenty-two

       years and alluded to the fact that he has been a drug runner for years to support

       his habit. The PSI reports that Heinrichs stated: “I made a poor choice because

       I made my choice when I was in my addiction, greed of getting more to feed

       my addiction. I take full responsibility for my actions and I am prepared to

       accept the consequences of those decisions.” Appellant’s Appendix at 43.


[13]   According to the PSI, Heinrichs experimented with marijuana in high school

       and said that he has never been seen by a mental health professional. He

       reported taking one hit of a marijuana cigarette on a yearly basis between the

       ages of thirty-eight and forty-two, and at the age of twenty-one, he started using

       Court of Appeals of Indiana | Memorandum Decision 64A05-1511-CR-1894 | May 18, 2016   Page 6 of 8
       cocaine and was “married” to the drug until August 2013. Id. at 45. He

       reported using cocaine sometimes on a daily basis and a minimum of three days

       per week. He admitted to experimenting with many drugs, including acid,

       heroin, Vicodin, and Percocet.


[14]   In 1995, he was charged in South Dakota with possession of a controlled

       substance as a class 5 felony, ingesting an intoxicant other than an alcoholic

       beverage as a class 1 misdemeanor, driving with a suspended license, and

       possession of drug paraphernalia as a class 2 misdemeanor. The court withheld

       entering judgment on the class 5 felony, ordered two years of probation and

       completion of a drug abuse assessment, and dismissed the remaining charges.

       A petition for revocation of probation was pending at the time the PSI was

       completed and a bench warrant was issued for failure to comply with the

       sentence. In 1998, Heinrichs was charged with driving while suspended which

       was amended to “No Operator’s License in Possession.” Id. at 41.


[15]   In 2000, Heinrichs was convicted of driving while suspended as a class A

       misdemeanor and sentenced to 180 days in the Porter County Jail, with all but

       time served, ten days PACT, and six months unsupervised probation. In

       March 2001, the court found that Heinrichs had violated his probation, and

       ordered him returned to complete PACT and extended probation. In January

       2002, the court again found that Heinrichs violated his probation.




       Court of Appeals of Indiana | Memorandum Decision 64A05-1511-CR-1894 | May 18, 2016   Page 7 of 8
[16]   Between 2001 and 2005, he was charged with conversion, check deception,

       possession of paraphernalia, and driving while suspended as class A

       misdemeanors, but these charges were dismissed.


[17]   In 2011, Heinrichs was charged with possession of a controlled substance and

       possession of a narcotic drug as class D felonies. The court sentenced him to

       twelve months in the DOC for possession of a controlled substance as a class A

       misdemeanor, placed him on probation, and ordered him to receive a substance

       abuse evaluation and participate in therapy as a condition of probation. He was

       subsequently ordered to return and complete substance abuse treatment but

       failed to complete that program, and he later admitted to a probation violation

       and was released unsatisfactorily from probation. The PSI indicates that his

       overall risk assessment score placed him in the moderate risk to reoffend

       category.


[18]   After due consideration of the trial court’s decision, we cannot say that

       minimum concurrent sentences of six years is inappropriate in light of the

       nature of the offenses and the character of the offender.


                                                   Conclusion

[19]   For the foregoing reasons, we affirm Heinrichs’s sentence.


[20]   Affirmed.


       Baker, J., and May, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 64A05-1511-CR-1894 | May 18, 2016   Page 8 of 8
