                                                                                 Oct 17 2013, 5:32 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

MICHAEL R. FISHER                                  GREGORY F. ZOELLER
Indianapolis, Indiana                              Attorney General of Indiana

                                                   JAMES B. MARTIN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DAVID DAVENPORT,                                   )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 49A02-1210-CR-842
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Steven R. Eichholtz, Judge
                            Cause No. 49G20-1105-FB-34149


                                        October 17, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                 STATEMENT OF THE CASE

          David Davenport (“Davenport”) appeals his convictions and sentences for Class B

felony dealing in cocaine1 and Class A misdemeanor resisting law enforcement.2

          We affirm and remand.

                                               ISSUES

          1.      Whether the trial court abused its discretion by admitting into
                  evidence two letters written by Davenport while in jail.

          2.      Whether Davenport’s sentence is inappropriate pursuant to Indiana
                  Appellate Rule 7(B).

                                               FACTS

           During the afternoon of May 14, 2011, Indianapolis Metropolitan Police

Department (“IMPD”) Officers Daniel Brezik (“Officer Brezik”) and John Walters

(“Officer Walters”) were separately patrolling the area near Spades Park in Marion

County in response to citizens’ complaints about narcotics trafficking in the area. As

Officer Brezik was driving on Temple Avenue near the intersection of 17th Street, he saw

Davenport sitting on a bicycle and talking with an unknown female in the middle of 17th

Street. The officer saw that Davenport was gripping a white pill bottle with his left hand

and making contact with the female’s hand with his right hand. The female saw Officer

Brezik, who was about twenty feet away, and pointed at the officer. Davenport turned

around, saw Officer Brezik, and rode his bicycle in the opposite direction. Officer Brezik

activated his emergency lights and siren and followed Davenport.

1
    Ind. Code § 35-48-4-1.
2
 At the time of Davenport’s offense, the crime of resisting law enforcement was codified under Ind. Code
§ 35-44-3-3. Effective July 1, 2012, it is codified under Ind. Code §35-44.1-3-1.
                                                   2
        Davenport did not stop his bicycle but continued to ride away from Officer Brezik.

Davenport repeatedly looked back over his shoulder as the officer followed five feet

behind him. Davenport then jumped off his bicycle and attempted to run away but fell

toward the side of Officer Brezik’s police car. The officer swerved his wheel and struck

Davenport’s bicycle. Davenport got off the ground and ran past Officer Brezik’s police

car.   The officer yelled for Davenport to stop, but Davenport did not comply and

continued to run. Officer Brezik then saw Davenport throw the white pill bottle toward

the curb and under a parked car.

        Davenport ran back toward the intersection at Temple and 17th Street, and Officer

Walters pulled up and blocked Davenport’s path. The officers ordered Davenport to the

ground and eventually were able to place him in handcuffs. As Officer Brezik walked

Davenport back to his patrol car, they walked past the parked car where Davenport had

thrown the white pill bottle. Officer Brezik then saw a plastic baggie containing a small

rock of cocaine. Officer Walters had the owner of the parked car move the car, and he

discovered thirteen more baggies of cocaine and the white pill bottle.3 When the officers

searched Davenport, they found that he had ninety-nine dollars in mostly five-dollar and

one-dollar bills.

        The State charged Davenport with Count I, Class B felony dealing in cocaine

(possession with intent to deliver); Count II, Class B felony possession of cocaine within

1,000 feet of a park; Count III, Class A misdemeanor resisting law enforcement (based on



3
  Upon retrieving the white pill bottle, the officers discovered that the white bottle originally contained
diabetes testing strips.
                                                    3
fleeing); and Count IV, Class A misdemeanor resisting law enforcement (based on

resisting).

       While Davenport was incarcerated in the Marion County Jail, he wrote two letters

(“jail letters”) that were intercepted by the jail’s civilian mail clerk Brian Rodgers

(“Rodgers”). The first letter (“Letter 1”) was returned to the jail from the post office for

insufficient postage. The envelope was addressed to “Cuz and Cuz” and contained

Davenport’s name in the return address. Rodgers, who believed that the letter was an

attempt to circumvent the prohibition against inmate-to-inmate mail, opened and read the

letter. In Letter 1, Davenport wrote the following:

       . . . on 5-14-11 I was right in the middle of the street inbetween 17th
       Tacoma and tempal geting ready to make a sale to this sting name Helen
       boo know who she is, now she saw the police behind me and said their go
       the police so i cuff the white pill bottle that i had my sacks in, and took off
       on the bike i never did make the sale, so now the police was behind me
       chaseing me . . . .

(State’s Ex. 2) (errors and strikeout in original). Davenport also wrote about other details

surrounding his crime and arrest, including the information about how he threw the white

bottle under a car and how his bicycle was hit by the police car. The envelope of Letter 1

also contained a photograph of a bicycle with a bent rim and a copy of Davenport’s

charging information. Rodgers forwarded Letter 1 to the jail’s Special Investigation Unit,

and he was instructed to continue to monitor Davenport’s mail.

       A few days later, Davenport handed Rodgers another letter (“Letter 2”). The

envelope of Letter 2 was addressed to Joyce Davenport, contained Davenport’s name in




                                             4
the return address, and contained a copy of Davenport’s charging information. In Letter

2, Davenport wrote, in part:

          Honey
          check this out just read my case and when you get to the part about the
          unkown womman that’s who i need you to be. to come to court and be my
          wittness, and all you need to say is i lit your cigerette and the police hit me
          off the bike and you was comeing to see if i was ok but he stop you from
          comeing down their and he made you leave . . . when the lawyer come to
          your house you are going to tell him just the way i got it in this letter so
          read it over and over ok. . . .

(State’s Ex. 3) (errors and emphasis in original).                Rodgers read Letter 2 and then

forwarded it to the jail’s Special Investigation Unit. The Special Investigation Unit

ultimately forwarded the jail letters to the prosecutor’s office.                 The State provided

discovery notice to Davenport that it intended to introduce the jail letters into evidence at

trial.4

          A jury trial was held on September 12, 2012. Prior to opening statements, the

State asked the trial court to make a preliminary ruling on the admissibility of

Davenport’s jail letters. During the preliminary hearing, the State presented testimony

from Rodgers and introduced the Marion County Jail Inmate Handbook (“the inmate

handbook”), which each inmate receives when booked into the Marion County Jail. The

inmate handbook contains a section regarding “Mail Regulations” for inmates and

provides, in relevant part:

          All mail for inmates, both incoming and outgoing, will be opened to
          intercept cash, checks, and money orders. It shall be read, censored or
          rejected based on content and for security reasons. It will be inspected for
4
  The record reveals that Davenport filed a grievance against the jail, challenging the seizure of his jail
letters.

                                                    5
           contraband. The exception will be legal mail which is opened in the
           presence of the inmate.

(State’s Ex. 1 at 2). In a section dealing with the requirements for inmates to have mail

delivered to them (i.e., inmates must produce a “valid and legible jail identification

armband” and must be “clothed”), the inmate handbook provides that “[i]f it becomes

necessary to withhold an inmate’s mail, he or she will be promptly notified.” (State’s Ex.

1 at 2). The inmate handbook also provided that correspondence between inmates was

prohibited.

           During the hearing, Davenport argued generally that “there is a federal violation

and a state constitution violation.” (Tr. 48-49). Davenport did not challenge the opening

or reading of his jail letters; instead, his argument focused mainly on the State’s detention

of the jail letters. He asserted that the inmate handbook created some sort of expectation

of privacy in his mail and an expectation that his mail would not be held unless it

constituted a security threat. He suggested that if the content of his letters did not relate

to security purposes, then they could not be retained. Davenport argued that the jail

letters were inadmissible because the detention of the letters was in violation of the

inmate handbook and because the State did not obtain a search warrant to detain the jail

letters.

           The State argued that the inmate handbook allowed for the opening and reading of

the jail letters based on the content and that the letters were seized because they related to

the crime for which he was charged. The State argued that Davenport’s remedy for his

contention that the seizure of the jail letters was contrary to the inmate handbook was a


                                               6
“civil remedy,” not exclusion of the jail letters from evidence. (Tr. 51). The trial court

reserved its ruling until the jail letters were offered for admission during the trial.

        During trial, when the State offered the jail letters into evidence as State’s Exhibit

2 and Exhibit 3, Davenport objected and asked the trial court to incorporate his prior

arguments from the preliminary hearing. The trial court ruled that the jail letters were

admissible. Specifically, the trial court stated:

        [T]he Court notes that numerous cases have concluded that . . . inmates in
        jail or correctional facilities have no reasonable expectation of privacy in
        their letters when they have been placed on notice [that] they are subject to
        being opened, searched for contraband. The testimony was . . . tendered to
        court showing that [there is] a jail policy . . . decimated to all inmates upon
        their admission.       There being no Fourth Amendment issues of
        constitutionality, the Court finds that while procedures may give rise to
        some other legal rights in a different tribunal, they do not affect the
        admissibility of evidence; therefore the letters will be admissible.

(Tr. 90).5

        At the end of the State’s evidence, the trial court granted Davenport’s motion for a

directed verdict on the resisting law enforcement charge in Count IV. The jury found

Davenport guilty of dealing in cocaine, possession of cocaine, and resisting law

enforcement. The trial court entered judgment of conviction on the dealing in cocaine

and resisting law enforcement verdicts only and merged the possession conviction it into

the dealing conviction.

        During Davenport’s sentencing hearing, the trial court acknowledged Davenport’s

physical and mental health problems but did not find any mitigating circumstances. The


5
  Davenport also objected to Letter 2 (State’s Exhibit 3) based on relevancy and prejudice. The trial court
also overruled this objection. In this appeal, Davenport does not challenge the admissibility of the jail
letters based on this objection.
                                                    7
trial court found the following aggravating circumstances: (1) Davenport was on parole

at the time of his offenses; (2) his criminal history; and (3) his previous parole and

probation violations. The trial court imposed a fifteen (15) year sentence for Davenport’s

Class B felony dealing in cocaine conviction and a 1,002 day sentence on his Class A

misdemeanor resisting law enforcement conviction and ordered that they be served

concurrently in the Department of Correction.6 Davenport now appeals.

                                           DECISION

1. Admission of Evidence

       Davenport argues that the trial court abused its discretion by admitting into

evidence his two jail letters, State’s Exhibits 2 and 3. Specifically, Davenport contends

the seizure of the jail letters violated his rights under the Fourth Amendment of the

United States Constitution and Article 1, Section 11 of the Indiana Constitution.

       The admission and exclusion of evidence falls within the sound discretion of the

trial court, and we review the admission of evidence only for an abuse of discretion.

Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of discretion occurs when

the trial court’s decision is clearly against the logic and effect of the facts and

circumstances before it. Conley v. State, 972 N.E.2d 864, 871 (Ind. 2012), reh’g denied.

       A. Fourth Amendment




6
 As discussed in further detail below, we remand this case to the trial court to impose a sentence on
Davenport’s Class A misdemeanor conviction that complies with the sentencing statutes.

                                                 8
          Davenport contends that the warrantless seizure of his jail letters violated his

rights under the Fourth Amendment.7

          The Fourth Amendment protects citizens against unreasonable searches and

seizures. See U.S. Const. amend IV. “The reasonableness of a search requires that the

subject of the search has exhibited an actual subjective expectation of privacy that society

as a whole is prepared to recognize as objectively ‘reasonable.’” Trimble v. State, 842

N.E.2d 798, 801 (Ind. 2006) (quoting Katz v. United States, 389 U.S. 347, 361 (1967)

(Harlan, J., concurring)), adhered to on reh’g, 848 N.E.2d 278 (Ind. 2006). Thus, the

question on appeal is whether Davenport had a reasonable expectation of privacy in his

outgoing mail.

          Generally, Indiana courts have held that “inmates have a reduced expectation of

privacy.” Lemond v. State, 878 N.E.2d 384, 392 (Ind. Ct. App. 2007) (citing Bell v.

Wolfish, 441 U.S. 520, 557 (1979)), trans. denied. For example, inmates do not have a

reasonable expectation of privacy in their cells. See Perkins v. State, 483 N.E.2d 1379,

1384 (Ind. 1985) (explaining that a prison inmate does not have a Fourth Amendment

reasonable expectation of privacy in his prison cell because such a right of privacy is

incompatible with the need to maintain security in the prison); Cleary v. State, 663




7
    The Fourth Amendment to the United States Constitution provides:

          The right of the people to be secure in their persons, houses, papers, and effects, against
          unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
          upon probable cause, supported by Oath or affirmation, and particularly describing the
          place to be searched, and the persons or things to be seized.

                                                      9
N.E.2d 779, 783 (Ind. Ct. App. 1996) (holding that a jail inmate does not have a right to

privacy in his jail cell).

       Additionally, the United States Supreme Court, our Indiana Supreme Court, and

our Court have addressed Fourth Amendment concerns related to reading inmate mail

and have held that inmates typically have no expectations of privacy in their mail. See

Stroud v. United States, 251 U.S. 15, 21-22 (1919) (holding that the prison’s seizure of a

prison inmate’s incriminating letters did not violate the inmate’s Fourth Amendment

rights where the letters were voluntarily written, obtained without threat or coercion, and

came into possession of prison officials through “established practice, reasonably

designed to promote the disciple of the institution”), reh’g denied; Grooms v. State, 269

Ind. 212, 220, 379 N.E.2d 458, 463 (Ind. 1978) (affirming the seizure and admission of

an inmate’s outgoing letter into evidence where the inmate knew that jail officials read

inmates’ mail, resulting in no reasonable expectation of privacy in the mail), cert. denied;

Rennert v. State, 263 Ind. 274, 277, 329 N.E.2d 595, 598 (Ind. 1975) (finding that the

defendant had waived his Fourth Amendment claim but explaining that there is a

legitimate state interest in searching and reading a prisoner’s outgoing mail and that a

prisoner has no expectation of privacy where he has notice that officials read his mail);

Hawkins v. State, 884 N.E.2d 939, 946 (Ind. Ct. App. 2008) (holding that an inmate “had

no privacy interest in her outgoing letters” where she “had notice of the possibility that

her letters would be read”), trans. denied.

       Davenport asserts that the inmate handbook created a reasonable expectation of

privacy and a belief that his mail would be opened in strict accordance with the

                                              10
provisions set forth in the handbook.        He acknowledges that the inmate handbook

provided notice that his outgoing mail could be opened and seized, but he contends that

the inmate handbook restricted such seizures “only for ‘security reasons[.]’”

(Davenport’s Br. 9). Davenport also argues that the holding in Stroud should be limited

to situations where there is a legitimate government interest. He contends that because

his jail letters posed no security threat, then “the jail had no legitimate interest in seizing”

the jail letters. (Davenport’s Br. 8). We disagree.

       Here, the record reveals that Davenport had notice, via the inmate handbook, that

all incoming and outgoing inmate mail was subject to inspection. The inmate handbook

provided that inmate mail would be “read, censored or rejected based on content and for

security reasons.” (State’s Ex. 1 at 2) (emphases added). Thus, the inmate handbook

notified Davenport that his jail letters would be read for content and security reasons.

The record further reveals that Rodgers, in the course of his duties as mail clerk of the jail

and pursuant to the guidelines of the inmate handbook, read Davenport’s jail letters and

forwarded them to the jail’s Special Investigation Unit. Because Davenport had notice

that his mail was subject to being read, he had no reasonable expectation of privacy in the

jail letters. See, e.g., Stroud v, 251 U.S. at 21-22; Grooms, 379 N.E.2d at 463; Rennert,

329 N.E.2d at 598; Hawkins, 884 N.E.2d at 946.

       In regard to Davenport’s argument regarding Stroud, federal cases have discussed

the limitations to and continued applicability of Stroud:

       Since 1919, a number of cases appear to have limited Stroud to situations in
       which prison officials seize outgoing inmate letters in the exercise of
       “legitimate governmental interests.” See Meadows v. Hopkins, 713 F.2d

                                              11
         206, 208–11 (6th Cir. 1983); Golden v. Coombe, 508 F.Supp. 156, 159–60
         (S.D.N.Y. 1981). Therefore, even though Stroud does not retain all of its
         original vitality, see United States v. Kelton, 791 F.2d 101, 102 (8th Cir.
         1986), and can no longer be said to give carte blanche approval to seizures
         of outgoing inmate mail, it still controls cases in which such seizures are
         prompted by a reasonable justification. In Kelton, the Eighth Circuit held
         that because of their reasonable concern for prison security and inmates’
         diminished expectations of privacy, prison officials do not violate the
         constitution when they read inmates’ outgoing letters. See Kelton, 791 F.2d
         at 103.

United States v. Brown, 878 F.2d 222, 225 (8th Cir. 1989) (emphasis added). Even if we

were to so limit Stroud, our Indiana Supreme Court has stated that “there is a legitimate

state interest in searching a prisoner’s mail for contraband” and that reading an inmate’s

mail may be justified by security reasons, such as the need “to determine whether an

escape attempt is impending.”       Rennert, 329 N.E.2 at 598.       Additionally, we have

explained that “[j]ails and prisons have an interest in maintaining prison security and

preventing illegal acts by inmates . . . .” Hawkins, 884 N.E.2d at 946 (citing United

States v. Whalen, 940 F.2d 1027, 1035 (7th Cir. 1991), cert. denied). Due to Davenport’s

lack of reasonable expectation of privacy and the jail’s interest in searching and reading

inmates’ mail for security purposes, the trial court did not err in admitting the jail letters

into evidence. See Hawkins, 884 N.E.2d at 946 (“‘[B]ecause of their reasonable concern

for prison security and inmates’ diminished expectations, prison officials do not violate

the constitution when they read inmates’ outgoing letters.’”) (quoting Brown, 878 F.2d at

225)).

         B. Article 1, Section 11




                                             12
          Davenport also argues that the trial court should have excluded the jail letters from

evidence based on Article 1, Section 11 of the Indiana Constitution.8                         Specifically,

Davenport contends that that the seizure of his jail letters was unreasonable under the

totality of the circumstances.

          “The purpose of Article 1, Section 11 is to protect from unreasonable police

activity those areas of life that Hoosiers regard as private.” Taylor v. State, 842 N.E.2d

327, 334 (Ind. 2006).             “The legality of a governmental search under the Indiana

Constitution turns on an evaluation of the reasonableness of the police conduct under the

totality of the circumstances.” Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). “The

totality of the circumstances requires consideration of both the degree of intrusion into

the subject’s ordinary activities and the basis upon which the officer selected the subject

of the search or seizure.” Id. at 360. While other relevant considerations may exist under

the circumstances of the case, the reasonableness of the search or seizure turns on a

balance of: (1) the degree of concern, suspicion, or knowledge that a violation has

occurred; (2) the degree of intrusion the method of the search or seizure imposes on the

citizen’s ordinary activities; and (3) the extent of law enforcement needs. Id. at 361.

          Here, Davenport was an inmate in jail and had notice that all of his incoming and

outgoing mail would be inspected and read based on content and for security reasons.

8
    Article 1, Section 11 of the Indiana Constitution provides:

          The right of the people to be secure in their persons, houses, papers, and effects, against
          unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon
          probable cause, supported by oath or affirmation, and particularly describing the place to
          be searched, and the person or thing to be seized.


                                                       13
Davenport sent two letters—one letter containing incriminating statements about his

involvement in the crimes at issue and the other letter requesting a person to lie at his

trial—that were then read by jail officials based on content and for security reasons as

explained in the inmate handbook. Thus, the degree of intrusion on Davenport was

minimal because he was notified that his mail would be subject to inspection.

Additionally, Letter 1 was returned to the jail with insufficient postage and appeared to

be an attempt to evade the prohibition against inmate-to-inmate correspondence, thereby

raising a degree of concern regarding a violation. Finally, the extent of law enforcement

need was high where the act of monitoring an inmate’s mail assists with jail security.

Based on the totality of the circumstances and the specific facts of this case, we conclude

that the seizure of the jail letters was reasonable and not in violation of Article 1, Section

11. Therefore, the trial court did not err in admitting the jail letters into evidence.9

2. Inappropriate Sentence

        Davenport contends that his fifteen-year sentence for his Class B felony dealing in

cocaine conviction was inappropriate.               Davenport acknowledges that he has a prior

criminal history and that he was on parole at the time of his crimes, but he asks this Court

to revise his sentence to something “less than fifteen years.” (Davenport’s Br. 17)



9
  Even if the trial court erred in admitting the jail letters into evidence, it would have constituted harmless
error. “Errors in the admission or exclusion of evidence are to be disregarded as harmless error unless
they affect the substantial rights of a party.” Fleener v. State, 656 N.E.2d 1140, 1141 (Ind. 1995). See
also Ind. Trial Rule 61. Here, the police officers’ testimony provided independent evidence establishing
Davenport’s crimes of dealing in cocaine and resisting law enforcement. Thus, any error in the admission
of the jail letters would be harmless. See, e.g., Perry v. State, 505 N.E.2d 846, 850 (Ind. Ct. App. 1987)
(holding that, even if an inmate’s jail letter was illegally seized and improperly admitted at trial, the
admission of such jail letter would constitute harmless error).

                                                     14
       We may revise a sentence if it is inappropriate in light of the nature of the offense

and the character of the offender. Ind. Appellate Rule 7(B). The defendant has the

burden of persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d

1073, 1080 (Ind. 2006). The principal role of a Rule 7(B) review “should be to attempt to

leaven the outliers, and identify some guiding principles for trial courts and those charged

with improvement of the sentencing statutes, but not to achieve a perceived ‘correct’

result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Whether a

sentence is inappropriate ultimately turns on “the 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.” Id. at 1224.

       When determining whether a sentence is inappropriate, we acknowledge that 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. The sentencing

range for a Class B felony is between six (6) and twenty (20) years, with the advisory

sentence being ten (10) years. I.C. § 35-50-2-5. Here, the trial court, after finding

multiple aggravating circumstances, enhanced the advisory term by five years and

imposed a fifteen (15) year sentence for Davenport’s Class B felony dealing in cocaine

conviction.

       The nature of Davenport’s offenses reveal that Davenport, who was on parole, had

fourteen baggies of cocaine and was prepared to sell it near the area of a park where

children gathered. When police caught him in the act, Davenport fled from police.

Davenport attempts to minimize the nature of his dealing in cocaine conviction by

                                            15
arguing that he was a “relatively minor drug dealer” with a “relatively small amount of

cocaine” and that he merely “stumbled upon someone else’s stash of cocaine and decided

to sell it rather than consume it.” (Davenport’s Br. 16, 17). Davenport has not convinced

us that his sentence that exceeded the advisory term by five years is inappropriate given

the nature of his offenses.

       As to Davenport’s character, the record reveals that Davenport—who was forty-

seven years old at the time of his offenses—has amassed a criminal history that includes

a Class B felony conviction for attempted robbery, three Class C felony convictions for

forgery, a Class D felony conviction for theft, as well as misdemeanor convictions for

disorderly conduct, possession of paraphernalia, and driving while suspended. Even

more troubling, at the time Davenport committed the crimes in this case, he was on

parole from a Class B felony attempted robbery conviction and had previously violated

that parole by testing positive for drugs. He also previously violated parole and probation

in another case involving his forgery and theft convictions.             The presentence

investigation report (“PSI”) indicates that Davenport had disciplinary problems during his

previous incarceration in the Department of Correction, receiving twelve major and thirty

minor disciplinary conduct reports.

       Additionally, Davenport’s history of alcohol and drug use does not reflect

positively on his character. The PSI reveals that Davenport admitted to trying alcohol

and marijuana at the age of twelve and to regularly using both since the age of sixteen.

Davenport, who was on parole, admitted that he was using alcohol and marijuana daily at

the time of his offenses. Davenport also admitted that he started using crack cocaine at

                                            16
the age of twenty-one and to daily use of the drug until 2009. Finally, the jail letters

admitted at trial reveal that Davenport was willing to engage others to help him fabricate

evidence at his trial. To be sure, Davenport’s history of criminal activity, commission of

this crime while on parole, prior disciplinary problems while incarcerated, and admitted

illegal drug use reflect poorly on his character and indicate nothing but a disregard for the

law.

       Davenport suggests that his mental illness—specifically, his self-reported

diagnoses of bipolar disorder and post-traumatic stress disorder—should be considered

when reviewing his character. The trial court, however, acknowledged Davenport’s

mental health issues but determined that Davenport had not shown them to be mitigating.

Nor does Davenport show them to be on appeal.

       Davenport has not persuaded us that his sentence for his Class B felony dealing in

cocaine conviction is inappropriate. Therefore, we affirm the trial court’s sentence.

       While we affirm Davenport’s sentence for his Class B felony dealing in cocaine

conviction, we remand to the trial court to resentence Davenport on his Class A

misdemeanor resisting law enforcement conviction. Here, the trial court imposed a 1,002

day sentence for Davenport’s Class A misdemeanor conviction. Pursuant to Indiana

Code § 35-50-3-2, “[a] person who commits a Class A misdemeanor shall be imprisoned

for a fixed term of not more than one (1) year . . . .” Thus, we remand this case to the

trial court to impose a sentence on Davenport’s Class A misdemeanor conviction that

comports with Indiana Code § 35-50-3-2.



                                             17
      Affirmed and remanded.

KIRSCH, J., and VAIDIK, J., concur.




                                      18
