MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                        Jun 07 2017, 8:56 am
court except for the purpose of establishing                          CLERK
the defense of res judicata, collateral                           Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Brian A. Karle                                           Curtis T. Hill, Jr.
Ball Eggleston, PC                                       Attorney General of Indiana
Lafayette, Indiana
                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tyler J. Collins,                                        June 7, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A05-1612-CR-2894
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Laura Zeman,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79D04-1608-F6-800



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A05-1612-CR-2894 |June 7, 2017        Page 1 of 9
[1]   Tyler J. Collins appeals his sentence for unlawful possession of a syringe as a

      level 6 felony. Collins raises one issue which we revise and restate as whether

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

      character. We affirm.


                                        Facts and Procedural History

[2]   On August 26, 2016, with intent to violate Ind. Code §§ 16-42-19 or §§ 35-48-4,

      Collins knowingly possessed or had under his control a syringe or needle or an

      instrument adapted for the use of heroin by injection.1 Collins possessed the

      syringe with the intent to inject heroin and used the syringe to do so.


[3]   On August 31, 2016, the State charged him with Count I, unlawful possession

      of a syringe as a level 6 felony, and the court set his bond at $2,500. The State

      subsequently moved to amend the charging information to add Count II,

      possession of paraphernalia with a prior conviction, a class A misdemeanor,

      and the court granted the motion. In October 2016, Collins filed a motion for

      reduction of bond, and the court entered an order reducing his bond to $1,000

      with the requirement that he enroll in and successfully complete a substance

      abuse treatment program as recommended by Sycamore Springs. An entry in

      the chronological case summary (“CCS”) dated October 31, 2016, states a cash

      bond was entered in the clerk’s office, and entries in the CCS on November 2



      1
       Ind. Code § 16-42-19-18 provides “[a] person may not possess with intent to: (1) violate this chapter [the
      Indiana Legend Drug Act]; or (2) commit an offense described in IC 35-48-4; a hypodermic syringe or needle
      or an instrument adapted for the use of a controlled substance or legend drug by injection in a human being”
      and that a violation constitutes a level 6 felony.

      Court of Appeals of Indiana | Memorandum Decision 79A05-1612-CR-2894 |June 7, 2017               Page 2 of 9
      and 4, 2016, state that a report was filed by Sycamore Springs and that Collins

      showed proof of enrollment there.


[4]   On November 4, 2016, the court held a guilty plea hearing at which Collins

      pled guilty to Count I, unlawful possession of a syringe as a level 6 felony, and

      the State agreed to forgo prosecution on Count II. Collins agreed that he had

      possession of a syringe, the syringe was an item used for the injection of a

      controlled substance, he possessed the syringe with the intent to inject heroin,

      that was a violation of Ind. Code § 35-48-4, and he did in fact use the syringe to

      inject heroin.


[5]   On December 5, 2016, the court held a sentencing hearing. At the hearing,

      Collins’s counsel indicated that Collins would like to withdraw his guilty plea,

      and Collins stated that he had just come across a woman who indicated the

      syringes belonged to her. The court recounted the questions it had asked

      Collins at the guilty plea hearing and noted that an ambulance had been called

      and that but for that ambulance Collins would be dead, and Collins stated that

      he understood. The court denied Collins’s request to withdraw his plea.

      Collins indicated he had been diagnosed with bipolar disorder, manic

      depressive order, and general anxiety disorder, and he testified that when the

      doctor saw him regarding his social security disability “they determined that my

      spinal meningitis probably ate so much of brain that I am what they would

      classify as mildly retarded.” Transcript Volume 2 at 20-21. Collins indicated

      that he went to Sycamore Springs as a condition of his bond and that he wanted

      to obtain the treatment on his own as well. When asked if he had been

      Court of Appeals of Indiana | Memorandum Decision 79A05-1612-CR-2894 |June 7, 2017   Page 3 of 9
      compliant, Collins answered affirmatively and testified he received a shot of

      Vivitrol every twenty-eight to thirty-two days. When asked the next step in the

      program, he testified he attended five days a week, then there would be a step

      down to three days a week for so many weeks, then two days a week for so

      many weeks, and then one day a week and then hopefully after care.


[6]   When asked “you owe Community Corrections money so you wouldn’t be able

      to . . . pay them and . . . that’s not really an option for you correct,” Collins

      replied “No, I collect Social Security Disability and . . . my dad just recently

      told me that since I’ve been straightening my act up he’s, they’re re-letting me

      live with them” and “therefore he was going to let me pay on the rent and . . . if

      I need to pay payments or whatever . . . to Community Corrections if need be

      then I got the support finally.” Id. at 23. He indicated he owed Community

      Corrections $1,119 and his disability benefit was $656 per month. When asked

      what was different this time, Collins answered that “before [he] never actually

      wanted rehab” and he “just had three close friends go to heaven this year.” Id.

      at 28. The State requested a sentence of two and one-half years, all executed,

      and that if the court elected to permit Collins to continue with treatment, his

      sentence be stayed upon his successful completion of treatment and probation.

      Collins requested that the remainder of his sentence after time served be

      suspended to probation. The court stated it would release the cash bond and

      $950 of the bond would apply toward the Community Corrections fee.


[7]   The court found Collins’s criminal history, multiple petitions to revoke in past

      cases, and multiple failed attempts at rehabilitation and treatment to be

      Court of Appeals of Indiana | Memorandum Decision 79A05-1612-CR-2894 |June 7, 2017   Page 4 of 9
      aggravating circumstances. It sentenced him to two and one-half years

      executed to be served in Tippecanoe County Community Corrections and

      ordered that he was entitled to credit for sixty-five actual days plus sixty-five

      days good time credit. The court also ordered that, “if [Collins] is not accepted

      into Community Corrections or violates Community Corrections rules and

      removed from Community Corrections, [he] shall serve the balance of the

      executed sentence in the Tippecanoe County Jail or the Indiana Department of

      Correction [(“DOC”)].” Appellant’s Appendix Volume 2 at 36.2


                                                       Discussion

[8]   The issue is whether Collins’s sentence is inappropriate in light of the nature of

      the offense and his character. Ind. Appellate Rule 7(B) provides that we “may

      revise a sentence authorized by statute 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.” Under this rule, the




      2
        On appeal, Collins states: “As of the date of this Appellant’s Brief, Collins was serving executed time in the
      Tippecanoe County Jail. See Tippecanoe County Jail, http://www.tippecanoe.in.gov/467/Current-Inmate-
      Listing (last visited March 4, 2017).” Appellant’s Brief at 6 n.3. In its appellee’s brief, the State responds:
      “Review of the website provided by Collins, as of the time the State files this brief, shows that his name is not
      currently listed as an inmate at the Tippecanoe County Jail. See http://www.tippecanoe.in.gov/467/
      Current-Inmate-Listing (viewed April 3, 2017).” Appellee’s Brief at 5 n.3. Our review reveals that the
      information under Collins’s name on Tippecanoe County’s website sets forth a booking date of May 5, 2017,
      and states, under “Current Status,” the phrase “No Hold,” which means “[i]f all eligibility requirements are
      met, inmate may be released on bond.” See http://www.tippecanoe.in.gov/467/Current-Inmate-Listing)
      (last visited May 24, 2017). The information also includes, under “Charge Details,” entries for “work release
      violation (jail use only),” with a corresponding scheduled court date of June 6, 2017, under the cause number
      from which this appeal arises, and “possession of methamphetamine” and “possession of salvia or synthetic
      cannabinoid.” Id. The page also includes a disclaimer stating “[a]ll information has been derived from
      public records that are constantly undergoing change and is not warranted for content or accuracy.” Id.

      Court of Appeals of Indiana | Memorandum Decision 79A05-1612-CR-2894 |June 7, 2017                   Page 5 of 9
       burden is on the defendant to persuade the appellate court that his or her

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[9]    Collins asserts that his offense is no more or less egregious than the typical

       offense for which he was convicted, he victimized only himself through his

       conduct, and his maximum, fully-executed sentence is inappropriate. He

       argues he pled guilty without the benefit of a plea agreement, he took initiative

       during the time his case was pending to seek substance abuse treatment at

       Sycamore Springs, his forgery convictions occurred over ten years ago, the

       majority of his charges correlate with his addiction issues, his best opportunity

       to rehabilitate is with intensive substance abuse and mental health treatment

       rather than a maximum jail sentence, and he is a victim of mental illness and an

       ongoing battle with addition. He requests this court to revise his sentence to

       include time on probation during which meaningful mental health and

       substance abuse treatment may be obtained under the watchful eye of a

       probation officer.


[10]   The State responds that Collins has a long criminal history consisting of felony

       and misdemeanor convictions and adjudications as well as probation violations

       and revocations and, despite these contacts with the criminal justice system and

       prior leniency, he has continued to commit criminal offenses. The State also

       asserts that Collins has not accepted responsibility for his actions and that he

       makes no argument there is a nexus between his mental health issues and the

       instant offense.



       Court of Appeals of Indiana | Memorandum Decision 79A05-1612-CR-2894 |June 7, 2017   Page 6 of 9
[11]   Our review of the nature of the offense reveals that Collins, with intent to

       violate Ind. Code §§ 16-42-19 or §§ 35-48-4, knowingly possessed or had under

       his control a syringe for the use of heroin by injection. At the guilty plea

       hearing, Collins admitted that he used the syringe to inject heroin.


[12]   Our review of the character of the offender reveals that Collins pled guilty

       without the benefit of a plea agreement and the State agreed to forgo

       prosecution of the charge for possession of paraphernalia with a prior

       conviction. According to the presentence investigation report (“PSI”), Collins

       was born on May 12, 1988, and has juvenile adjudications for truancy in 2001,

       battery resulting in bodily injury and residential entry in 2002, and theft and

       auto theft in 2003. Also as a juvenile, a petition for modification of disposition

       was filed due to Collins intimidating and threatening his teacher in May 2003,

       and the court granted the petition; a petition for modification of disposition was

       filed due to his taking his parents’ van without permission and providing a false

       name to police in September 2003, and he was ordered to complete home-based

       services; and a petition for modification of disposition was filed due to his

       pushing his mother into a wall, and the court granted the petition. As an adult,

       Collins was convicted of failure to stop after an accident resulting in non-

       vehicular damage as a class B misdemeanor in 2006; two counts of forgery as

       class C felonies, theft as a class D felony, and possession of marijuana as a class

       A misdemeanor in 2007; obtaining a controlled substance by fraud or deceit

       (conspiracy to commit) as a class D felony in February 2008; battery resulting

       in bodily injury as a class A misdemeanor in September 2008; possession of a


       Court of Appeals of Indiana | Memorandum Decision 79A05-1612-CR-2894 |June 7, 2017   Page 7 of 9
       narcotic drug (attempt to commit) and battery resulting in bodily injury (prior

       with same victim) as class D felonies, resisting law enforcement as a class A

       misdemeanor, and battery as a class B misdemeanor in 2012; driving while

       suspended (prior within ten years) as a class A misdemeanor in 2015; and

       possession of paraphernalia and knowingly or intentionally operating a motor

       vehicle without ever receiving a license as class C misdemeanors in 2016.


[13]   In addition, the PSI indicates that Collins violated work release in 2006 by

       stealing from another work release participant and was transported to the

       Tippecanoe County Jail; a notice of work release rejection was filed in February

       2008 due to his possessing contraband and providing a false statement to a work

       release officer, and he was transported to jail; he tested positive for cocaine and

       marijuana in May 2008; a notice of home detention violation was filed in

       November 2008 due to his being found at a motel injecting cocaine, and he was

       remanded to jail; and a petition to revoke probation was filed in 2011 due to his

       testing positive for marijuana, and the petition was found true. The PSI further

       states Collins failed to report to the probation department after his guilty plea

       hearing in November 2016 and has a long history of non-compliance with

       community-based services. The PSI also observes that a presentence

       investigation report filed in another cause indicated that Collins had been

       diagnosed with bipolar disorder and manic depressive disorder at ten years of

       age, was diagnosed with generalized anxiety disorder more recently, lost

       hearing due to contracting spinal meningitis in 2000 and had surgeries related




       Court of Appeals of Indiana | Memorandum Decision 79A05-1612-CR-2894 |June 7, 2017   Page 8 of 9
       to his hearing loss, and reported a history of using and/or abusing alcohol,

       marijuana, cocaine, crack cocaine, methamphetamine, and heroin.


[14]   After due consideration, we conclude that Collins has not sustained his burden

       of establishing that his sentence of two and one-half years to be served on

       community corrections if accepted is inappropriate in light of the nature of the

       offense and his character.


                                                   Conclusion

[15]   For the foregoing reasons, we affirm Collins’s sentence.


[16]   Affirmed.


       May, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1612-CR-2894 |June 7, 2017   Page 9 of 9
