MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                               FILED
court except for the purpose of establishing                             Mar 06 2020, 11:07 am

the defense of res judicata, collateral                                        CLERK
                                                                          Indiana Supreme Court
estoppel, or the law of the case.                                            Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                   Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                 Attorney General of Indiana
Brooklyn, Indiana
                                                        Samantha M. Sumcad
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Ervin M. Price,                                         March 6, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2358
        v.                                              Appeal from the Vigo Superior
                                                        Court
State of Indiana,                                       The Honorable John T. Roach,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        84D01-1807-F4-2586



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2358| March 6, 2020                      Page 1 of 4
                                          Case Summary
[1]   In September of 2019, Ervin Price pled guilty to four counts of Level 4 felony

      cocaine dealing, and the trial court sentenced him to nine years in the Indiana

      Department of Correction (“DOC”) with three years suspended to probation.

      Price challenges the appropriateness of his placement in the DOC. We affirm.



                            Facts and Procedural History
[2]   On four separate occasions in February of 2018, Price sold cocaine to a

      confidential informant, totaling approximately seven grams. On July 26, 2018,

      the State charged Price with four counts of Level 4 felony cocaine dealing, four

      counts of Level 6 felony cocaine possession, and four counts of Level 6 felony

      maintaining a common nuisance. While on pretrial work release, Price

      committed new offenses which resulted in charges of Level 2 felony cocaine

      dealing, Level 3 felony cocaine possession, Level 2 felony methamphetamine

      dealing, Level 4 felony methamphetamine possession, and Level 5 felony

      neglect of a dependent, Level 6 felony maintaining a common nuisance, and

      Class B misdemeanor marijuana possession. On September 12, 2019, pursuant

      to a plea agreement, Price agreed to plead guilty to four counts of Level 4

      felony cocaine dealing, and the State agreed to dismiss the remaining charges.

      The trial court accepted the plea agreement and sentenced Price to nine years in

      the DOC with three years suspended to probation.



                                Discussion and Decision
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2358| March 6, 2020   Page 2 of 4
[3]   Price does not contest the length of his sentence, only his placement in the

      DOC. We may 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.” Ind. Appellate Rule 7(B).

      “Sentencing is principally a discretionary function in which the trial court’s

      judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d

      1219, 1222 (Ind. 2008) (internal citations omitted). Placement is an appropriate

      focus for application of our Appellate Rule 7(B) authority. Biddinger v. State, 868

      N.E.2d 407, 414 (Ind. 2007). When a defendant challenges his placement,

      under Appellate Rule 7(B), the question is not whether another placement is

      more appropriate but, rather, whether the given placement is inappropriate.

      Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). It is the defendant’s

      burden to persuade us that the placement is inappropriate. Id. We have stated

      that “it will be quite difficult for a defendant to prevail on a claim that the

      placement of his or her sentence is inappropriate,” noting that “trial courts

      know the feasibility of alternative placements in particular counties or

      communities.” Id.


[4]   While not an especially egregious crime, the nature of Price’s offenses does not

      necessarily support a less-restrictive placement. Price pled guilty to four counts

      of Level 4 felony cocaine dealing after he dealt cocaine on four separate

      occasions, which totaled approximately seven grams.


[5]   Price’s character also justifies his DOC placement. In Illinois as an adult, Price

      has convictions for Class 2 felony unlawful possession of a weapon by a felon,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2358| March 6, 2020   Page 3 of 4
      Class 4 felony cannabis possession, Class 4 felony aggravated unlawful use of a

      weapon, two counts of Class 4 felony controlled-substance possession, and two

      counts of Class A misdemeanor driving on a suspended license. In Indiana as

      an adult, Price has been convicted of Class C felony carrying a handgun

      without a license. Price also has violated probation multiple times, had an

      active warrant issued in Illinois for his arrest for felony escape charges when he

      was arrested in this matter, and had his pretrial work release revoked in this

      matter after committing new drug-related offenses. Given the nature of his

      offenses, lengthy criminal history, violation of pretrial work release, and

      continuous disregard for the rule of law, the trial court correctly concluded that

      the DOC was the appropriate placement for Price. Price has failed to establish

      that his placement was inappropriate.


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


      Robb, J., and Altice, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2358| March 6, 2020   Page 4 of 4
