MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                   Dec 26 2018, 9:14 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
Donald C. Swanson, Jr.                                  Curtis T. Hill, Jr.
Deputy Public Defender                                  Attorney General of Indiana
Fort Wayne, Indiana                                     Evan Matthew Comer
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brett T. Rhodes,                                        December 26, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-2038
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Frances C. Gull,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        02D05-1707-F6-853



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2038 | December 26, 2018                    Page 1 of 8
                                Case Summary and Issue
[1]   Brett Rhodes pleaded guilty to one count of unlawful possession of a syringe, a

      Level 6 felony, but his sentencing was delayed while he participated in the

      Allen County Drug Court Diversion Program. Upon being unsuccessfully

      terminated from Drug Court, Rhodes was sentenced to two years in the Indiana

      Department of Correction, with the possibility of serving his time on work

      release if eligible. Rhodes now appeals his sentence, raising one issue for our

      review: whether his two-year sentence is inappropriate in light of the nature of

      his offense and his character. Concluding his sentence is not inappropriate, we

      affirm.



                            Facts and Procedural History
[2]   In July 2017, police responded to an anonymous tip that people were smoking

      spice in a room at a Fort Wayne hotel. When Rhodes answered the door,

      officers could see numerous syringes in plain view around the room. Also

      present in the room were two other men and a woman. One of the men was

      passed out on the bed. Rhodes admitted to officers that he was a heroin addict

      and, when asked if he was in possession of any drugs or weapons, further

      admitted that he had a syringe. Two syringes were discovered in Rhodes’ front

      pocket.


[3]   The State charged Rhodes with one count of unlawful possession of a syringe, a

      Level 6 felony. He pleaded guilty to the charge and was placed in the Allen


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2038 | December 26, 2018   Page 2 of 8
      County Drug Court Diversion Program on August 14, 2017. In the following

      ten months, Rhodes submitted diluted urine screens twice, tested positive for

      alcohol twice, tested positive for spice once, tested positive for

      methamphetamine once, and failed to appear for a drug screen five times. He

      was sanctioned with jail time for being in violation of Drug Court rules on four

      occasions. Finally, on June 25, 2108, Rhodes’ placement in the Drug Court

      program was revoked.


[4]   Rhodes’ sentencing hearing was held on August 2, 2018. Finding Rhodes’

      “multi-state criminal record with failed efforts of rehabilitation” to be an

      aggravating factor, Transcript, Volume 2 at 8, and his guilty plea and statement

      of remorse as mitigating factors, the trial court sentenced him to two years at

      the Department of Correction, with the possibility of serving his sentence on

      work release if he were to be accepted into the work release program. Rhodes

      now challenges both the length and placement of his sentence as inappropriate.



                                Discussion and Decision
                                     I. Standard of Review
[5]   “The Court may revise a sentence authorized by statute 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). “[T]he question under Appellate Rule

      7(B) is not whether another sentence is more appropriate; rather, the question is

      whether the sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265,
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2038 | December 26, 2018   Page 3 of 8
      268 (Ind. Ct. App. 2008). In this regard, the “sentence” includes not only the

      term of the sentence but also the placement. Fonner v. State, 876 N.E.2d 340,

      343 (Ind. Ct. App. 2007) (“The location where a sentence is to be served is an

      appropriate focus for application of our review and revise authority.”).


[6]   The defendant has the burden to persuade us that the sentence imposed by the

      trial court is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007),

      clarified on reh’g, 875 N.E.2d 218. Deference to the trial court’s sentencing

      decision should prevail unless it can be 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). “The principal role of appellate review

      should be to attempt to leaven the outliers . . . not to achieve a perceived

      ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

      2008).


                                 II. Inappropriate Sentence
[7]   The nature of the offense refers to a defendant’s actions in comparison with the

      elements of the offense. Cannon v. State, 99 N.E.3d 274, 280 (Ind. Ct. App.

      2018), trans. denied. The nature of the offense can be analyzed by using the

      advisory sentence as a starting point. Anglemyer, 868 N.E.2d at 494.


[8]   Rhodes pleaded guilty to one count of Level 6 felony unlawful possession of a

      syringe and received two years for his conviction. The sentencing range for a

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2038 | December 26, 2018   Page 4 of 8
       Level 6 felony is between six months and two and one-half years with an

       advisory sentence of one year. Ind. Code § 35-50-2-7(b). Rhodes contends the

       nature of his offense is innocuous because he had no intent to harm or profit

       from it and he did not prey on the public or put the public at risk. He also

       contends it must be acknowledged that his offense stems from a severe

       addiction.


[9]    In order to commit “unlawful possession of a syringe,” the defendant must have

       the intent to violate the Indiana Legend Drug Act or commit an offense related

       to controlled substances. Ind. Code § 16-42-19-18. Rhodes admitted via his

       guilty plea that he possessed a syringe with intent to do just that. Based on the

       paraphernalia police found in the hotel room,1 many drugs were ingested by the

       occupants of the room, so much so that one occupant had passed out.

       Although we agree that there was nothing particularly egregious about Rhodes’

       offense in that it was primarily harmful to himself, we do note that his conduct,

       along with the conduct of several other people, was bothersome enough to

       another guest of the hotel that the guest felt compelled to call the police and

       advised them “it was causing her problems.” Appellant’s App., Vol. 2 at 32.


[10]   The character of the offender refers to “general sentencing considerations and

       the relevant aggravating and mitigating circumstances.” Cannon, 99 N.E.3d at




       1
        The probable cause affidavit indicates officers “observed numerous used needles . . . in various places all
       over the room[,]” as well as “spoons and other items associated with using and ingesting narcotics.”
       Appellant’s Appendix, Volume 2 at 32.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2038 | December 26, 2018                   Page 5 of 8
       280. “We assess the trial court’s recognition or non-recognition of aggravators

       and mitigators as an initial guide to determining whether the sentence imposed

       was inappropriate.” Stephenson v. State, 53 N.E.3d 557, 561 (Ind. Ct. App.

       2016). When evaluating the character of the offender, we consider his or her

       criminal history a relevant factor, Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct.

       App. 2017), trans. denied, and “[t]he significance of [a defendant’s] criminal

       history varies based on the gravity, nature, and number of prior offenses in

       relation to the current offense[,]” Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct.

       App. 2013).


[11]   As noted by the trial court, Rhodes has a criminal history in three different

       states, and currently has an outstanding warrant in California. He has no

       juvenile record, but from 2010 to 2018, he amassed ten misdemeanor and three

       felony convictions, including drug and alcohol offenses, one of which was a

       prior conviction of unlawful possession of a syringe, and several offenses

       against property, including theft and conversion. As described by the trial

       court, he has been given “short jail sentences, longer jail sentences, probation,

       community service, [a] Treatment Program, the Work Release Program, and

       then the Drug Court Program . . . and probation [has been] revoked twice.”

       Tr., Vol. 2 at 9. Again, Rhodes asserts that “[w]hatever character flaws that

       [he] possesses are the manifestations of a disease he is attempting to fight.”

       Appellant’s Brief at 11. We observe that Rhodes’ drug use has gotten

       progressively worse, beginning with alcohol use in his teens and escalating from

       regular use of marijuana to spice to cocaine to methamphetamine and finally


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2038 | December 26, 2018   Page 6 of 8
       heroin. Even while participating in the Drug Court program, he was unable to

       abstain from the use of drugs and alcohol. He is classified in the high-risk

       category to reoffend. Rhodes has not shown that he has “substantial virtuous

       traits or persistent examples of good character.” Stephenson, 29 N.E.3d at 122.


[12]   Rhodes contends that the trial court’s order that he be committed to the

       Department of Correction fails to provide him with any rehabilitative treatment

       and asserts an appropriate sentence would have been the advisory sentence of

       one year suspended to probation through which he could access the tools and

       resources essential to treat his substance abuse problem. We have stated that it

       is “quite difficult for a defendant to prevail on a claim that the placement of his

       or her sentence is inappropriate[,]” because “trial courts know the feasibility of

       alternative placements in particular counties or communities.” Fonner, 876

       N.E.2d at 343. And, as previously stated, the question is not whether another

       sentence would be more appropriate. King, 894 N.E.2d at 268.


[13]   Considering Rhodes’ criminal history, history of substance abuse, and his

       inability to stay clean in less-restrictive environments, we cannot say that a two-

       year sentence with the possibility of serving that sentence on work release is

       inappropriate, especially given Rhodes’ inability to successfully complete the

       Drug Court program in this case. Although the nature of Rhodes’ offense is

       neutral, his character as exemplified by his criminal history supports the

       sentence of two years’ incarceration. Rhodes has failed to meet his burden of

       showing that his sentence is inappropriate.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2038 | December 26, 2018   Page 7 of 8
                                              Conclusion
[14]   Rhodes’ sentence is not inappropriate in light of the nature of his offense and

       his character. Accordingly, his sentence is affirmed.


[15]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2038 | December 26, 2018   Page 8 of 8
