MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                               May 29 2020, 11:07 am

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
James A. Hanson                                         Caroline G. Templeton
Fort Wayne, Indiana                                     Deputy Attorney General
                                                        Indianapolis, Indiana

                                          IN THE
    COURT OF APPEALS OF INDIANA

Sidney A. Berry,                                        May 29, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2825
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Wendy W. Davis,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        02D04-1604-F4-29



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2825 | May 29, 2020                     Page 1 of 6
                                          Statement of the Case
[1]   Sidney Berry (“Berry”) appeals the aggregate ten-year sentence imposed after a

      jury convicted him of Level 4 felony possession of cocaine1 and Class B

      misdemeanor possession of marijuana.2 His sole argument is that his sentence

      is inappropriate in light of the nature of his offenses and his character.

      Concluding that the ten-year sentence is not inappropriate, we affirm the trial

      court.


[2]   We affirm.


                                                     Issue
                                   Whether Berry’s sentence is inappropriate.


                                                     Facts
[3]   In March 2016, during a search for officer safety, a Fort Wayne Police

      Department detective discovered 10.4 grams of cocaine and 5.5 grams of

      marijuana in Berry’s possession. The State charged Berry with Level 4 felony

      possession of cocaine and Class B misdemeanor possession of marijuana.


[4]   Berry was released on bond but failed to appear in court for a September 2016

      hearing. Eighteen-months later, in March 2018, a bail agent learned that Berry

      was incarcerated in Ohio for allegedly committing three felony offenses,



      1
          IND. CODE § 35-48-4-6.
      2
          I.C. § 35-48-4-11.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2825 | May 29, 2020   Page 2 of 6
      including failing to comply with a police officer’s order or signal, tampering

      with evidence, and possessing criminal tools.


[5]   Berry returned to Indiana, and the jury trial for the two drug possession charges

      began in October 2019. At trial, a Fort Wayne Police Department detective

      testified that based on his training and experience, 10.4 grams of cocaine was a

      large quantity, which represented about 50 individual uses. The jury convicted

      Berry of both possession charges.


[6]   At Berry’s November 2019 sentencing hearing, a review of Berry’s pre-sentence

      investigation report revealed that Berry had a criminal history that included two

      prior felony convictions for assault and intimidating a witness or crime victim

      and one prior misdemeanor conviction for failing to appear. In addition, Berry

      had twice had his probation revoked.


[7]   At the end of the sentencing hearing, the trial court found no mitigating factors.

      However, the trial court found several aggravating factors, including Berry’s:

      (1) prior criminal history that included one misdemeanor and two felony

      convictions; (2) probation revocations; and (3) absconsion while on bond,

      which showed a disdain for the trial court. The trial court concluded that “all

      of the facts and circumstances push[ed] [Berry] above the advisory sentence,”

      and sentenced him to ten (10) years in the Department of Correction for the

      Level 4 felony, with one (1) year suspended to probation. (Tr. at 206). The

      trial court further sentenced Berry to sixty(60) days in the Allen County Jail for

      the Class B misdemeanor conviction. Lastly, the trial court ordered the


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2825 | May 29, 2020   Page 3 of 6
       sentences for the two convictions to run concurrently to each other, for an

       aggregate sentence of ten (10) years.


[8]    Berry now appeals his sentence.


                                                   Decision
[9]    Berry argues that his sentence is inappropriate. Indiana 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. The defendant bears the burden of persuading this Court that his

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

       Whether we regard a sentence as inappropriate turns on 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 v. State, 895 N.E.2d

       1219, 1224 (Ind. 2008).


[10]   The Indiana Supreme Court has further explained that “[s]entencing is

       principally a discretionary function in which the trial court’s judgment should

       receive considerable deference.” Id. at 1222. “Such deference should prevail

       unless overcome by compelling evidence portraying in a positive light the

       nature of the offense (such as accompanied by restraint, regard, and lack of

       brutality) and the defendant’s character (such as substantial virtuous traits or

       persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122

       (Ind. 2015).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2825 | May 29, 2020   Page 4 of 6
[11]   When determining whether a sentence is inappropriate, the advisory sentence is

       the starting point the legislature has selected as an appropriate sentence for the

       crime committed. Childress, 848 N.E.2d at 1081. Here, Berry was convicted of

       a Level 4 felony and a Class B misdemeanor. The sentencing range for a Level

       4 felony is two (2) to twelve (12) years, and the advisory sentence is six (6)

       years. IND. CODE § 35-50-2-5.5. The maximum sentence for a Class B

       misdemeanor is one-hundred and eighty (180) days. IND. CODE § 35-50-3-3.

       Here, the trial court sentenced Berry to ten years for the Level 4 felony and to

       sixty days for the Class B misdemeanor. The trial court further ordered the

       sentences to run concurrently to each other, for an aggregate sentence of ten

       years.


[12]   Regarding the nature of the offense, Berry possessed 10.4 grams of cocaine,

       which, according to the detective on the case, constituted fifty individual uses.

       He also possessed 5.5 grams of cocaine. Regarding Berry’s character, we note

       that he absconded while on bond in this case and agree that his absconsion

       showed a disdain for the trial court. A bail agent found Berry incarcerated in

       Ohio for allegedly committing three additional felonies. In addition, Berry’s

       criminal history includes two felony convictions for assault and intimidating a

       witness or a crime victim and a misdemeanor conviction for failing to appear.

       Berry’s probation was also revoked two times. Berry’s former contacts with the

       law have not caused him to reform himself. See Jenkins v. State, 909 N.E.2d

       1080, 1086 (Ind. Ct. App. 2009), trans. denied. Berry has failed to persuade this

       Court that his ten-year sentence is inappropriate.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2825 | May 29, 2020   Page 5 of 6
[13]   Affirmed.


       Bradford, C.J., and Baker, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2825 | May 29, 2020   Page 6 of 6
