MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                Jul 30 2019, 9:03 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
Brian A. Karle                                            Curtis T. Hill, Jr.
Ball Eggleston, PC                                        Attorney General of Indiana
Lafayette, Indiana
                                                          Matthew B. Mackenzie
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Eric A. Emrich,                                           July 30, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-278
        v.                                                Appeal from the Tippecanoe
                                                          Superior Court
State of Indiana,                                         The Honorable Steven P. Meyer,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          79D02-1804-F4-15



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-278 | July 30, 2019                      Page 1 of 5
[1]   Eric Emrich appeals the ten-year sentence imposed by the trial court after he

      pleaded guilty to Level 5 Felony Possession of Methamphetamine, arguing that

      the sentence is inappropriate in light of the nature of the offense and his

      character. Finding the sentence not inappropriate, we affirm.


[2]   On April 11, 2018, the State charged Emrich with Level 4 felony possession of

      methamphetamine, Level 5 felony possession of methamphetamine, Level 6

      felony possession of a syringe, Level 6 felony counterfeiting, Class B

      misdemeanor possession of marijuana, and Class C misdemeanor possession of

      paraphernalia. The State also alleged that Emrich was an habitual offender.

      Later, on January 2, 2019, the State filed an additional charge of Level 5 felony

      possession of methamphetamine with a prior conviction. That same day,

      Emrich entered into a guilty plea agreement, pursuant to which he agreed to

      plead guilty to the Level 5 felony possession of methamphetamine charge in

      exchange for dismissal of the other charges. Additionally, Emrich admitted that

      he was an habitual offender due to his past convictions for Level 6 felony

      possession of a syringe, Class D felony possession of marijuana with a prior

      conviction, Class D felony escape, and Class C felony forgery.


[3]   During Emrich’s January 13, 2019, sentencing hearing, Emrich admitted that

      he had been in possession of more than one gram of methamphetamine, that he

      had yet to pay almost $10,000 in outstanding child support, that he had been

      sentenced multiple times to the Department of Correction (DOC), and that he

      had committed this specific crime while he was on probation. The plea

      agreement established that the executed portion of Emrich’s sentence would be

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-278 | July 30, 2019   Page 2 of 5
      between five and eight years. Appellant’s App. Vol. II p. 47. The trial court

      ultimately sentenced Emrich to an aggregate term of ten years, with seven years

      executed in the DOC, one year in community corrections, and two years on

      supervised probation. Emrich now appeals.


[4]   Emrich argues that the sentence imposed by the trial court is inappropriate in

      light of the nature of the offense and his character. Indiana Appellate Rule 7(B)

      states that a “Court 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.” The defendant

      bears the burden of persuading us that his sentence is inappropriate. Childress v.

      State, 848 N.E.2d 1073, 1080 (Ind. 2006). In determining whether the sentence

      is inappropriate, we will consider numerous factors such as culpability of the

      defendant, the severity of the crime, the damage done to others, and a “myriad

      [of] other factors that come to light in a given case.” Cardwell v. State, 895

      N.E.2d 1219, 1224 (Ind. 2008). It is our job to leaven the outliers, not to

      achieve a perceived “correct” sentencing result. Id. at 1225.


[5]   The maximum sentence for a Level 5 felony possession of methamphetamine

      conviction is six years, and the minimum sentence is one year. Ind. Code § 35-

      50-2-6(b). The advisory sentence is three years. Id. However, for a person found

      to be an habitual offender, the trial court may enhance the sentence for a Level

      5 felony conviction by two to six years. I.C. § 35-50-2-8(i)(2). Here, the trial

      court sentenced Emrich to an aggregate term of ten years, with seven years



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-278 | July 30, 2019   Page 3 of 5
      executed in the DOC, one year in community corrections, and two years on

      supervised probation.


[6]   First, as to the nature of the offense, Emrich was initially charged with more

      than just felony possession of more than one gram of methamphetamine.

      Specifically, he was also charged with Level 4 felony possession of

      methamphetamine, Level 5 felony possession of methamphetamine, Level 6

      felony possession of a syringe, Level 6 felony counterfeiting, Class B

      misdemeanor possession of marijuana, and Class C misdemeanor possession of

      paraphernalia. And though Emrich only admitted to possessing more than one

      gram of methamphetamine, the probable cause affidavit alleged that Emrich

      had been in possession of 7.52 grams of methamphetamine, more than enough

      to be convicted of Level 5 felony possession. Appellant’s App. Vol. II p. 19.

      While Emrich claims that no significant harm resulted from his actions, drug

      crimes produce deleterious effects to a surrounding community. Therefore, we

      find that the nature of Emrich’s offense does not render his sentence

      inappropriate.


[7]   Next, as to the Emrich’s character, Emrich makes light of the fact that he has

      been charged and convicted of numerous drug-related offenses in the past. See

      Lindsey v. State, 916 N.E.2d 230, 241 (Ind. Ct. App. 2009) (finding that a

      “criminal record alone justifies the sentence imposed by the trial court”).

      Emrich has defied the law many times, accumulated numerous convictions—

      both felony and misdemeanor—and has not improved his character despite

      multiple opportunities for improvement. Emrich even admitted during

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-278 | July 30, 2019   Page 4 of 5
      sentencing that he committed this offense while he was on probation for

      another conviction. Emrich shows little sign of reform, and while he did plead

      guilty, “[a] guilty plea is not automatically a significant mitigating factor.”

      Sensback v. State, 720 N.E.2d 1160, 1165 (Ind. 1999). Therefore, we find that

      Emrich’s character does not render his sentence inappropriate.


[8]   In sum, we will not revise Emrich’s sentence pursuant to Indiana Appellate

      Rule 7(B).


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


      Kirsch, J., and Crone, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-278 | July 30, 2019   Page 5 of 5
