MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be
                                                                    Mar 28 2018, 7:33 am
regarded as precedent or cited before any
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
Donald E.C. Leicht                                       Curtis T. Hill, Jr.
Kokomo, Indiana                                          Attorney General of Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jacob Cummings,                                          March 28, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A02-1711-CR-2626
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable William C.
Appellee-Plaintiff                                       Menges, Judge
                                                         Trial Court Cause No.
                                                         34D01-1702-F5-130



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2626 | March 28, 2018        Page 1 of 5
[1]   Jacob Cummings appeals the sentence imposed by the trial court after he

      pleaded guilty to Level 6 Felony Unlawful Possession of a Syringe. Cummings

      argues that the sentence is inappropriate in light of the nature of the offense and

      his character. Finding that the sentence is not inappropriate, we affirm.


                                                    Facts
[2]   On January 31, 2017, the Kokomo Police Drug Task Force began surveillance

      of a Kokomo residence. The officers observed multiple vehicles come and go

      from the residence, including one vehicle that was followed and stopped by the

      officers; both occupants were arrested after officers found methamphetamine

      and heroin.


[3]   At the residence, Cummings, several other adults, and two children exited as

      the officers searched it pursuant to a warrant. The officers found a bag that had

      several syringes and burnt spoons with residue that was later determined to be

      heroin. Cummings claimed ownership of the bag and told police that he had

      last injected heroin that afternoon. The officers also found bags and foil with a

      substance that was later determined to be methamphetamine; baggies that

      tested positive for methamphetamine; digital scales; a safe; a grinder; stripped

      marijuana plants and grow lights; glass smoking devices; and 1.9 grams of

      heroin in separate plastic bags.


[4]   On February 1, 2017, the State charged Cummings with Level 5 felony

      unlawful possession of a syringe, Level 5 felony possession of

      methamphetamine, Level 5 felony possession of a narcotic drug, and Class B

      Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2626 | March 28, 2018   Page 2 of 5
      misdemeanor visiting a common nuisance. The State later added a charge of

      Level 6 felony unlawful possession of a syringe. On October 18, 2017,

      Cummings pleaded guilty to Level 6 felony unlawful possession of a syringe in

      exchange for the dismissal of the remaining charges. The sentence was left

      open to the trial court and, at the October 18, 2017, sentencing hearing, the trial

      court imposed a sentence of 913 days imprisonment. Cummings now appeals.


                                   Discussion and Decision
[5]   Cummings’s sole argument on appeal is that the sentence imposed by the trial

      court is inappropriate in light of the nature of the offense and his character

      pursuant to Indiana Appellate Rule 7(B). In considering an argument under

      Rule 7(B), we must “conduct [this] review with substantial deference and give

      ‘due consideration’ to the trial court’s decision—since the ‘principal role of

      [our] review is to attempt to leaven the outliers,’ and not to achieve a perceived

      ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)

      (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal

      citations omitted).


[6]   Cummings pleaded guilty to one count of a Level 6 felony. For this conviction,

      he faced a sentence of six months to two and one-half years imprisonment, with

      an advisory term of one year. I.C. § 35-50-2-7(b). The trial court imposed a

      sentence of 913 days, or approximately two and one-half years.


[7]   With respect to the nature of the offense, Cummings’s criminal conduct far

      exceeded that which was encompassed by his guilty plea. See Bethea v. State,

      Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2626 | March 28, 2018   Page 3 of 5
      983 N.E.2d 1134, 1144-45 (Ind. 2013) (holding that it is appropriate for a court

      to consider the totality of the defendant’s conduct that brought the defendant

      before the trial court). He visited a house that held heroin, methamphetamine,

      scales, and the markings of a marijuana grow operation. Minors were present

      in the residence when Cummings was there. Cummings himself was in

      possession of heroin and paraphernalia and admitted to having injected himself

      with heroin earlier that same day.


[8]   With respect to Cummings’s character, we note that he has amassed a

      substantial criminal history. As a juvenile, he was arrested for possession of

      marijuana, illegal possession of an alcoholic beverage, and visiting a common

      nuisance. As an adult, Cummings has been convicted for dealing in a

      controlled substance, theft, possession of methamphetamine, unlawful

      possession of a syringe, possession of marijuana, and receiving stolen property.

      He was out on bond in a counterfeiting and theft case in another county at the

      time he committed the instant offense.


[9]   Cummings clearly has a serious substance abuse problem, and he has been

      afforded multiple opportunities to treat that problem. As early as 2001, he had

      the opportunity to participate in inpatient substance abuse treatment, which he

      began but did not complete. In 2008, he successfully participated in outpatient

      treatment through a drug court program, but returned to daily use of heroin and

      methamphetamine thereafter. He has participated with drug-aided recovery

      with the use of methadone and suboxone. Notwithstanding these



      Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2626 | March 28, 2018   Page 4 of 5
       opportunities, Cummings continues to use illegal substances and commit crimes

       related to his substance abuse.


[10]   Under these circumstances, we find that the sentence imposed by the trial court

       is not inappropriate in light of the nature of the offense and Cummings’s

       character.


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


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2626 | March 28, 2018   Page 5 of 5
