MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                    FILED
regarded as precedent or cited before any                                          Aug 19 2020, 8:55 am
court except for the purpose of establishing
                                                                                         CLERK
the defense of res judicata, collateral                                              Indiana Supreme Court
                                                                                        Court of Appeals
estoppel, or the law of the case.                                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David L. Joley                                           Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana

                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher Bell, Jr.,                                   August 19, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-314
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff                                       Judge
                                                         The Honorable Wendy W. Davis,
                                                         Judge
                                                         The Honorable Samuel E. Keirns,
                                                         Judge
                                                         Trial Court Cause No.
                                                         02D05-1906-F6-761
                                                         02D05-1809-F6-1126




Court of Appeals of Indiana | Memorandum Decision 20A-CR-314 | August 19, 2020         Page 1 of 11
      May, Judge.

[1]   Christopher Bell Jr. brings this consolidated appeal following his conviction of

      and sentence for Level 6 felony possession of a narcotic drug, 1 and the

      revocation of his probation under a separate cause number based on his

      commission of that crime. Specifically, Bell argues: (1) his sentence for the drug

      possession conviction is inappropriate given the nature of the offense and his

      character, and (2) the court abused its discretion when it revoked his suspended

      sentence for a prior conviction of Level 6 resisting law enforcement while

      operating a motor vehicle. 2 We affirm.



                                Facts and Procedural History
[2]   On September 15, 2018, Detective Wilkins of the Fort Wayne Police

      Department observed a gray vehicle being driven by a driver known to the

      detective as having a suspended driver’s license. Detective Wilkins activated

      his lights and followed the vehicle to initiate a traffic stop, however the vehicle

      resisted police authority by accelerating to a speed up to eighty miles-per-hour

      while disregarding stop signs and traffic control devices. (App. Vol. II at 38.)

      After a few minutes of pursuit, the vehicle slowed to a stop, and Bell exited the

      vehicle with his hands in the air. Bell was taken into custody, but Detective

      Wilkins also noticed a green plant like substance sitting on the front passenger



      1
          Ind. Code § 35-48-4-6(a).
      2
          Ind. Code § 35-44.1-3-1(a).


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-314 | August 19, 2020   Page 2 of 11
      seat. The substance was later identified as marijuana, and it weighed less than

      one gram. On September 20, 2018, the State charged Bell with Level 6 felony

      resisting law enforcement while operating a motor vehicle. Bell agreed to plead

      guilty as part of a plea arrangement, and on December 13, 2018, the trial court

      sentenced Bell to an eighteen-month term, with one year suspended to

      probation.


[3]   The State filed a petition to revoke Bell’s probation on May 31, 2019, which it

      amended on June 20, 2019. The petition alleged that Bell tested positive for

      alcohol and cocaine use on May 3, 14, and 28 of 2019, did not report to

      supervision, was unable to be contacted, did not maintain full employment, and

      did not complete substance abuse counseling. Then, on June 21, 2019, officers

      arrested Bell on a warrant for violation of probation and, while cataloguing

      Bell’s property, found a “white piece of paper with a blue/grey substance

      inside.” (App. Vol. II at 36.) That substance was later identified as having the

      presence of fentanyl weighing 0.1 grams. Consequently, Bell was charged with

      Level 6 felony possession of a narcotic drug.


[4]   On July 1, 2019, a second petition to revoke Bell’s probation was filed. On

      August 12, 2019, Bell pled guilty to the drug possession charge, but entered into

      an agreement that stipulated dismissal of his case upon successful completion of

      the Allen County Drug Court Program. The agreement also provided that

      upon successful completion of the drug court program, Bell would be

      discharged satisfactorily from probation for his previous resisting law

      enforcement conviction.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-314 | August 19, 2020   Page 3 of 11
[5]   On December 16, 2019, the State filed a third amended petition to revoke Bell’s

      probation in conjunction with a petition seeking termination of Bell’s

      participation in the Drug Court Program. The third petition to revoke

      probation cited a new allegation, Bell’s failure to complete the drug court

      program, and reiterated previous allegations: Bell did not maintain good

      behavior and committed a new crime while on probation, he tested positive for

      cocaine use on various separate occasions, he tested positive for alcohol, he did

      not report for supervision as instructed, he did not maintain full-time

      employment, and he did not attend or complete substance abuse counseling as

      instructed. The petition to terminate drug court participation alleged that Bell

      violated the terms and conditions of the Drug Court Program based on his

      unsuccessful discharge from Road to Recovery on November 24, 2019; his

      testing positive for cocaine and marijuana use on November 18, 2019; his

      failing to appear in court on November 25, 2019; and his receiving a citation for

      driving while suspended and failing to use a safety belt.


[6]   Bell admitted the allegations in both petitions during a compliance hearing on

      December 16, 2019, and on January 14, 2020, the trial court sentenced Bell to

      two years imprisonment for his Level 6 felony possession conviction. At the

      sentencing hearing the court identified two aggravating factors: Bell’s criminal

      record, which contained multiple failed efforts at rehabilitation, and Bell being

      on probation when he committed the offense. The trial court noted that Bell’s

      adult criminal record spanned ten years, from 2009 to 2019, and that Bell had

      three prior felony convictions with a variety of sanctions such as short jail


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-314 | August 19, 2020   Page 4 of 11
      sentences, probation, time in the Department of Correction (“DOC”) time in

      the Community Control Program through Community Corrections, the

      Community Transition Program, parole, and the Drug Court Program. (Tr.

      Vol. II at 52-53.) As mitigating factors, the court credited Bell’s expression of

      remorse and his guilty plea.


[7]   In addition to the sentence ordered for the possession conviction, the trial court

      revoked the suspended one-year sentence from Bell’s resisting law enforcement

      conviction and ordered that year served in the DOC. The sentences were

      ordered to run consecutively. Bell filed separate Notices of Appeal from the

      sentencing and the probation revocation orders, and we granted Bell’s motion

      to consolidate the appeals.



                                 Discussion and Decision
                                     1. Inappropriate Sentence
[8]   We will reverse a sentence as inappropriate only if we determine Bell’s sentence

      is inappropriate in light of both the nature of his offense and his character. See

      Ind. Appellate Rule 7(B) (“The Court may revise a sentence authorized by

      statute 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.”). The nature of the offense analysis compares the

      defendant’s actions with the required showing to sustain a conviction under the

      charged offense, Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008), while the

      character of the offender analysis permits broader consideration of a

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-314 | August 19, 2020   Page 5 of 11
       defendant’s character. Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App.

       2007).

[9]    Ultimately, our determination of appropriateness “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. The task at hand is not to evaluate whether another

       sentence is more appropriate, but rather whether the sentence imposed is

       inappropriate. Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans.

       denied. The defendant ultimately bears the burden of demonstrating the

       inappropriateness of the sentence. Patterson v. State, 909 N.E.2d 1058, 1063

       (Ind. Ct. App. 2009).


[10]   When considering the nature of the offense, the advisory sentence is the starting

       point to determine the appropriateness of a sentence. Anglemyer v. State, 868

       N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The

       advisory sentence for a Level 6 felony is one year, with a sentencing range

       between six months and two-and-a-half years. Ind. Code § 35-50-2-7. For

       Bell’s Level 6 felony possession conviction, the trial court imposed a two-year

       sentence.


[11]   One factor we consider when determining the appropriateness of a deviation

       from the advisory sentence is whether there is anything more or less egregious

       about the offense committed by the defendant that makes it different from the

       “typical” offense accounted for by the legislature when it set the advisory

       sentence. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 2008), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-314 | August 19, 2020   Page 6 of 11
       While not egregious in and of itself, we hold the nature of Bell’s Level 6 felony

       possession of a narcotic drug offense was worse than the “typical” possession

       offense because Bell was already on probation for another crime when he

       committed the offense. See Barber v. State, 863 N.E.2d 1199, 1208 (Ind. Ct.

       App. 2007) (the commission of an offense while on probation is a “significant

       aggravator”), trans. denied.


[12]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.

       App. 2007). Although the extent to which a defendant’s criminal history may

       be used to guide an appropriate sentence “varies based on the gravity, nature,

       and number of prior offenses in relation to the current offense,” repeated

       contacts with the criminal justice system reflect poorly on the defendant’s

       character, because such contacts suggest the defendant “has not been deterred

       [from further criminal behavior] even after having been subjected to the police

       authority of the State.” Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005). See

       Speer v. State, 995 N.E.2d 1, 14 (Ind. Ct. App. 2013) (sentences higher than the

       advisory not inappropriate based on defendant’s extensive criminal history for

       similar offenses), trans. denied. In its sentencing hearing, the trial court noted

       that Bell had been given opportunities to serve his sentences through probation

       or participation in rehabilitation programs, but Bell continued to perform

       criminal acts and had not improved his behavior. Additionally, Bell failed to

       take advantage of the opportunity to participate in drug court, which would

       have resulted in complete dismissal of his case upon successful completion.


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-314 | August 19, 2020   Page 7 of 11
       The petitions to revoke Bell’s probation and the petition to terminate Bell’s drug

       court participation all referenced Bell’s continued use of illegal drugs, despite

       his having been provided substance abuse treatment and despite the explicit

       requirements to not engage in drug related offenses. Accordingly, we cannot

       say Bell’s sentence in excess of the advisory sentence for the possession

       conviction is inappropriate. See Littrell v. State, 15 N.E.3d 646, 652-653 (Ind.

       Ct. App. 2014) (defendant’s inability to complete drug treatment programs,

       continued use of drugs after treatment was administered during incarceration,

       and the presence of petitions to revoke defendant’s probation, confirm

       appropriateness of sentence).


                                         2. Probation Revocation
[13]   We recognize that “probation by its nature is a matter of grace, imposed in lieu

       of imprisonment--granted in exchange for the defendant’s promise to remain

       law-abiding during his conditional release.” Knapp v. State, 9 N.E.3d 1274, 1290

       (Ind. 2014). Revocation of that grace is a two-step process: first, the court must

       determine whether a probationer violated a condition of probation; second, the

       court must decide whether that violation justifies revocation of probation.

       Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005), trans. denied. If a

       probationer admits violating probation, “the court can proceed to the second

       step of the inquiry and determine whether the violation warrants revocation.”

       Id. The violation of a single condition of probation is sufficient to revoke

       probation. Wilson v. State, 708 N.E.2d 32, 34 (Ind. Ct. App. 1999).



       Court of Appeals of Indiana | Memorandum Decision 20A-CR-314 | August 19, 2020   Page 8 of 11
[14]   After revocation, the trial court in its discretion may order execution of all or

       part of a suspended sentence. Alford v. State, 965 N.E.2d 133, 135 (Ind. Ct.

       App. 2012); see also Ind. Code § 35-38-2-3(h)(3) (statute governing violation of

       conditions of probation). Generally, if the trial court follows the procedures

       outlined in Indiana Code section 35-38-2-3, the trial court properly may order

       execution of a suspended sentence. Wann v. State, 997 N.E.2d 1103, 1106 (Ind.

       Ct. App. 2013), reh’g denied. Sentencing decisions for probation violations are

       reviewable for an abuse of discretion, which occurs “where the decision is

       clearly against the logic and effect of the facts and circumstances.” Prewitt v.

       State, 878 N.E.2d 184, 187 (Ind. 2007). “[U]ltimately, it is the trial court’s

       discretion as to what sanction to impose” for a probation violation. Abernathy v.

       State, 852 N.E.2d 1016, 1022 (Ind. Ct. App. 2006).


[15]   During the sentencing hearing, the trial judge recognized Bell’s failed efforts at

       rehabilitation and Bell’s “three prior felony convictions with short jail

       sentences, probation, time in the Department of Correction, time in the

       Community Control Program through Community Corrections, the

       Community Transition Program, . . . parole, and then, ultimately, in the Drug

       Court Program.” (Tr. Vol. II at 52-53.) Specifically, in 2015, Bell’s three-year

       probation sentence for Class D felony receiving stolen property 3 was revoked

       and he was ordered to serve the three years in the DOC before being released




       3
           Ind. Code § 35-43-4-2(b).


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-314 | August 19, 2020   Page 9 of 11
       on parole. (App. Vol. II. at 46.) Failing to recognize that probation is a

       “favor,” Bell violated his probation for Level 6 felony resisting law enforcement

       by committing an additional Level 6 felony, and then neglected to follow the

       terms and conditions of the Drug Court Program. It is evident that Bell’s

       actions do not align with the programs’ goals and demonstrate disregard for

       achieving rehabilitation. The trial court was well within its discretion to

       determine Bell was not a good candidate to remain on probation. See Cox v.

       State, 850 N.E.2d 485, 489-491 (Ind. Ct. App. 2006) (defendant’s implied

       agreement to comply with the terms of his probation authorized the trial court

       to order execution of the sentence initially suspended, when he violated his

       probation by “committing another crime and using drugs,” despite the original

       plea agreement). See also Crump v. State, 740 N.E.2d 564, 567 (Ind. Ct. App.

       2000) (because defendant violated his probation, trial court properly revoked his

       probation and work release and ordered executed an eight-year sentence in the

       Indiana Department of Correction).



                                               Conclusion
[16]   Bell’s sentence for his drug possession conviction is not inappropriate given that

       he committed that offense while on probation for a separate, unrelated felony

       conviction. Bell’s lengthy criminal history and failed attempts at maintaining

       successful probation also indicate his character does not merit modification of

       his sentence. Finally, based on Bell’s repeated probation violations and

       inability to successfully participate in the Drug Court Program, the trial court


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-314 | August 19, 2020   Page 10 of 11
       did not abuse its discretion when it ordered Bell to serve his suspended sentence

       of one year in the DOC rather than on probation. Accordingly, we affirm.


[17]   Affirmed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-314 | August 19, 2020   Page 11 of 11
