MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                             Jul 31 2020, 9:13 am

court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Chad Montgomery                                           Curtis T. Hill, Jr.
Lafayette, Indiana                                        Attorney General of Indiana
                                                          Benjamin J. Shoptaw
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Scott Kerssemakers,                                       July 31, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A-CR-590
        v.                                                Appeal from the Tippecanoe
                                                          Circuit Court
State of Indiana,                                         The Honorable Sean Persin, Judge
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          79C01-1808-F3-23, 79C01-1808-
                                                          F5-150, & 79C01-1903-F5-33



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-590 | July 31, 2020                  Page 1 of 8
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Scott Kerssemakers (Kerssemakers), appeals his sentence

      following his guilty plea under three separate cause numbers for resisting law

      enforcement, a Level 6 felony; possession of cocaine, a Level 3 felony;

      possession of cocaine, a Level 5 felony; operating a vehicle with a schedule I or

      II controlled substance, a Class C misdemeanor; and possession of

      methamphetamine, a Level 5 felony.


[2]   We affirm.


                                                    ISSUE
[3]   Kerssemakers presents one issue on appeal, which we restate as: Whether

      Kerssemakers’ sentence is inappropriate in light of the nature of the offenses

      and his character.


                      FACTS AND PROCEDURAL HISTORY
[4]   On May 3, 2018, an Indiana State Trooper observed Kerssemakers drive a

      motorcycle at 94 mph in a 60 mph zone while passing two INDOT vehicles

      that were on the side of the road with their yellow lights flashing. The State

      Trooper stopped Kerssemakers and discovered that his driving privileges had

      been suspended. A search of the motorcycle revealed a backpack in the saddle

      bag, containing a glass pipe with brown residue and two containers.

      Kerssemakers admitted that the containers contained marijuana and cocaine.

      On August 13, 2018, the State filed an Information, charging Kerssemakers

      with Count I, Level 6 felony possession of cocaine; Count II, Class B
      Court of Appeals of Indiana | Memorandum Decision 20A-CR-590 | July 31, 2020   Page 2 of 8
      misdemeanor possession of marijuana; Count III, Class C misdemeanor

      possession of paraphernalia; Count IV, Class C misdemeanor reckless driving;

      Count V, Level 5 felony possession of cocaine; and Count VI, Class C

      misdemeanor possession of marijuana under Cause number 79C01-1808-F5-

      150 (Cause F5-150).


[5]   On June 6, 2018, an Indiana State Trooper noticed Kerssemakers drive his

      motorcycle in a lane closed to traffic. When the State Trooper attempted to

      make a traffic stop, Kerssemakers continued for several miles before stopping.

      During the traffic stop, the State Trooper discovered that Kerssemakers’ driving

      privileges were suspended. The subsequent search revealed a zip lock bag with

      two baggies containing cocaine, as well as a glass pipe with plant residue and a

      container with plant residue material believed to be marijuana. On August 9,

      2018, the State filed an Information, charging Kerssemakers with Count I,

      Level 6 felony possession of cocaine; Count II, Class B misdemeanor

      possession of marijuana; Count III, Class C misdemeanor possession of

      paraphernalia; Count IV, Level 6 felony resisting law enforcement; Count V,

      Class A misdemeanor driving while suspended; Count VI, Level 3 felony

      possession of cocaine; Count VII, Class A misdemeanor possession of

      marijuana; and an habitual offender enhancement under Cause number 79C01-

      1808-F3-23 (Cause F3-23).


[6]   On January 27, 2019, a State Trooper observed Kerssemakers drive a SUV

      while speeding and failing to signal before a lane change. During the traffic

      stop, the State Trooper detected the odor of marijuana and alcohol emanating

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-590 | July 31, 2020   Page 3 of 8
      from the vehicle and noticed marijuana in plain sight. A search further revealed

      a glass pipe with marijuana, two hydrocodone and/or acetaminophen pills, and

      methamphetamine. The results of a blood draw indicated the presence of THC,

      cocaine, benzoylecgonine, methamphetamine, and amphetamine in

      Kerssemakers’ blood. On March 18, 1019, the State filed an Information,

      charging Kerssemakers with Count I, Level 6 felony possession of a narcotic

      drug; Count II, Level 6 felony possession of methamphetamine; Count III,

      Class A misdemeanor possession of a controlled substance; Count IV, Class B

      misdemeanor possession of marijuana; Count V, Class C misdemeanor

      possession of paraphernalia; Count VI, Class C misdemeanor operating a

      vehicle while intoxicated; Count VII, Class C misdemeanor operating a vehicle

      with a schedule I or II controlled substance or its metabolite in the body; Count

      VIII, Class A misdemeanor possession of marijuana; Count IX, Level 5 felony

      possession of a narcotic drug; and Count X, Level 5 felony possession of

      methamphetamine under Cause number 79C01-1903-F5-33 (Cause F5-33).


[7]   On November 1, 2019, Kerssemakers pled guilty to Count IV and Count VI

      under Cause F3-23; Count V under Cause F5-150; and Counts VII and X under

      Cause F5-33. On February 10, 2020, the trial court conducted a sentencing on

      Kerssemakers’ plea agreement. Under Cause F3-23, Kerssemakers was

      sentenced to two years on Count IV and ten years on Count VI to run

      consecutively, with ten years executed and two years on community

      corrections; under F5-150, Kerssemakers was sentenced to five years with two

      years in community corrections and three years suspended to probation; and


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-590 | July 31, 2020   Page 4 of 8
       under F5-33, Kerssemakers was sentenced to sixty days under Count VII and

       five years suspended on Count X, with sentences to run concurrently. As such,

       Kerssemakers was sentenced to an aggregate sentence of twenty-two years with

       ten years executed in the Department of Correction DOC), four years in

       community corrections, and eight years suspended to probation.


[8]    Kerssemakers now appeals. Additional facts will be provided if necessary.


                               DISCUSSION AND DECISION
[9]    Kerssemakers requests that we independently review the appropriateness of his

       sentence. “Even when a trial court imposes a sentence within its discretion, the

       Indiana Constitution authorizes independent appellate review and revision of

       this sentencing decision.” Hoak v. State, 113 N.E.3d 1209, 1209 (Ind. 2019).

       Thus, we may alter a sentence 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. Id. The principal role of such review

       is to attempt to leaven the outliers. Cardwell v. State, 895 N.E.2d 1219, 1225

       (Ind. 2008). The defendant bears the burden to persuade the reviewing court

       that the sentence imposed is inappropriate. Robinson v. State, 91 N.E.3d 574,

       577 (Ind. 2018).


[10]   Within the framework of the sentencing review, Kerssemakers contends that

       the trial court abused its discretion when it failed to place him in the Recovery

       while Incarcerated program, which is part of purposeful incarceration. In Miller

       v. State, 105 N.E.3d 194, 196 (Ind. Ct. App. 2018), we recognized that “the

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-590 | July 31, 2020   Page 5 of 8
       place that a sentence is to be served is an appropriate focus for application of

       our review and revise authority.” Id. (citing Hole v. State, 851 N.E.2d 302, 304

       (Ind. 2006) (discretionary placement is subject to Appellate Rule 7(B) review).

       However, as in Miller, Kerssemakers does not challenge the location of his

       incarceration but rather the failure to be recommended for a program in which

       he believes he is entitled to participate. See id. The trial court’s role in relation

       to purposeful incarceration is to identify which defendants should be flagged as

       individuals most likely to benefit from placement in the program. Id. Entry

       into the program is left to the discretion of the DOC; defendants do not have a

       right to placement in a program, and trial courts themselves have no authority

       to require the DOC to place a particular defendant into a program. Id.; see also

       Cohn v. Strawhorn, 721 N.E.2d 342, 348-49 (Ind. Ct. App. 1999) (finding that

       Indiana law does not create “a statutory entitlement to educational

       programming for all, every, any, or each person committed to the DOC” and it

       “is absurd to conclude that the General Assembly could have intended that all

       DOC inmates be entitled to substance abuse treatment regardless of whether

       they in fact suffer from substance abuse.”) Thus, Kerssemakers’ argument fails

       as the appropriateness of his placement within a particular program is not an

       issue subject to this court’s review. See id. at 197.


[11]   Even reviewing Kerssemakers’ sentence within an appropriateness of a sentence

       analysis, his argument is without merit. Kerssemakers entered into a plea

       agreement encompassing three different Causes, with each Cause including at

       least six different charges. Pursuant to the terms of the plea, Kerssemakers only


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-590 | July 31, 2020   Page 6 of 8
       pled guilty to five out of twenty-four charges, with the trial court imposing an

       aggregate sentence of twenty-two years with ten years executed in the DOC,

       four years in community corrections, and eight years suspended to probation.


[12]   With respect to the nature of the crime, we do not turn a blind eye to the “facts

       of the incident that brought the defendant before” us or the “nature and

       circumstances of the crime as well as the manner in which the crime is

       committed.” Bethea v. State, 893 N.E.2d 1134, 1145 (Ind. 2013). Each Cause

       commenced with a traffic stop due to speeding, while Kerssemakers’ driving

       privileges had been suspended. In each Cause, the State Trooper then

       invariably located evidence of illegal substances and paraphernalia.

       Kerssemakers committed felony after felony with the knowledge that he had

       charges in other cases.


[13]   Likewise, Kerssemakers’ character does not warrant a downward revision of his

       sentence. A defendant’s willingness to continue committing crimes is relevant

       for analysis of his character under Appellate Rule 7(B). Garcia v. State, 47 N.E.

       3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied. Independent of the current

       conviction, Kerssemakers’ criminal involvement includes two juvenile

       delinquency adjudications, fourteen prior misdemeanor convictions, and five

       prior felony convictions. He violated his probation at least four times.


[14]   Besides his criminal history, Kerssemakers’ character clearly speaks to his

       disregard for the criminal justice system. It cannot be ignored that

       Kerssemakers drove a vehicle at high speed while his driving privileges were


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-590 | July 31, 2020   Page 7 of 8
       suspended, and while in possession of illegal drugs and paraphernalia.

       Accordingly, in light of the nature of the offense and Kerssemakers’ character,

       we cannot conclude that the imposed sentence is inappropriate.


                                             CONCLUSION
[15]   Based on the foregoing, we hold that Kerssemakers’ sentence is not

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


[16]   Affirmed.


[17]   May, J. and Altice, J. concur




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-590 | July 31, 2020   Page 8 of 8
