MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Sep 28 2018, 10:03 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
P. Stephen Miller                                        Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Marvin J. Perkins,                                       September 28, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-754
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D04-1709-F6-1038



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-754 | September 28, 2018               Page 1 of 7
[1]   Marvin J. Perkins (“Perkins”) pleaded guilty to Level 6 felony possession of

      cocaine in Allen Superior Court.1 After Perkins tested positive for cocaine and

      withdrew from his placement in the Drug Court Diversion Program, the trial

      court imposed a two-year executed sentence. Perkins now appeals and argues

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

      character of the offender.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On September 7, 2007, Perkins was arrested for possessing cocaine, and he was

      charged five days later with Level 6 felony possession of cocaine or narcotic

      drug. On October 10, Perkins entered into a plea agreement where he pleaded

      guilty as charged, the trial court took the plea under advisement, and he was

      placed in the Veteran Court track of Allen County’s Drug Court Diversion

      Program (the “Program”).2 By participating in the Program, Perkins agreed to

      several conditions including that he would: (1) not illegally possess or use any

      illegal drugs throughout the term of his participation; (2) submit to random drug

      screens; and (3) attend all required meetings and appointments. See Appellant’s




      1
       Perkins also pleaded guilty under cause number 02D04-1607-CM-2633 to Class A misdemeanor
      unauthorized entry of a motor vehicle stemming from July 2016, and he admitted to the allegations in a
      petition to revoke the suspended portion of his probation under cause number 02D06-1201-FB-16. Tr. pp. 9,
      13. Accordingly, the trial court sentenced Perkins under those cause numbers as well, however, only the
      Level 6 felony possession of cocaine is at issue in this appeal. See Tr. p. 58.
      2
       Perkins served in the United States Marine Corps from 1977 through 1978, and he received an honorable
      medical discharge.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-754 | September 28, 2018              Page 2 of 7
      App. pp. 18–23. Perkins was provided with a case manager, and he was

      released to transitional housing on October 17.


[4]   Perkins secured a job soon after his release, and he began receiving treatment

      through Veterans Affairs in the evenings. Perkins was recognized and

      commended by the trial court when his employment was verified, and again

      when it was verified that he had secured a sponsor. However, on December 27,

      2017, Perkins tested positive for cocaine and metabolites of cocaine. 3 He denied

      the drug usage, and the trial court ordered him to write an essay on honesty in

      recovery and to complete thirty meetings in thirty days. The court also

      remanded Perkins to custody for one day in jail.


[5]   On January 8, 2018, Perkins again tested positive for cocaine. He again denied

      that he had used any drugs. On January 22, Perkins’s case manager filed a

      petition to terminate Perkins’s participation in the Program for: (1) failing to

      attend required support group meetings since November 29, 2017; (2) testing

      positive for cocaine on January 8, 2018; and (3) failing to appear for a urine

      drug screen on January 16, 2018. Appellant’s App. p. 33. At a compliance

      hearing held the same day, Perkins expressed to the trial court his desire to

      withdrawal from the Program. Tr. p. 48. The court accepted Perkins’s

      withdrawal and scheduled a sentencing hearing.




      3
       The Presentence Investigation Report indicates that Perkins tested positive for cocaine on December 13,
      2017, however, December 27 is the first mention of a positive test in the transcript.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-754 | September 28, 2018                Page 3 of 7
[6]   At the February 22, 2018 sentencing hearing, the court found as aggravating

      Perkins’s extensive criminal history, his failed efforts at rehabilitation, and the

      fact that he was on probation in one case and out on bond in another when he

      committed the possession offense. The court found Perkins’s guilty plea as a

      mitigating circumstance, and it then imposed a two-year executed sentence for

      the Level 6 felony possession of cocaine. Perkins now appeals.


                                     Discussion and Decision
[7]   Perkins argues that his two-year executed sentence is inappropriate because

      there is nothing remarkable about the nature of the offense, and his failures with

      a serious addiction do not merit a fully executed sentence. We disagree.


[8]   Indiana Appellate Rule 7(B) provides that “[t]he 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.” In conducting our review, “[w]e do not look

      to determine if the sentence was appropriate; instead we look to make sure the

      sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.

      2012). “[S]entencing is principally a discretionary function in which the trial

      court’s judgment should receive considerable deference.” Cardwell v. State, 895

      N.E.2d 1219, 1222 (Ind. 2008).


[9]   Thus, although we have the power to review and revise sentences, the principal

      role of appellate review should be to attempt to “leven the outliers, and identify

      some guiding principles for trial courts and those charged with improvement of

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-754 | September 28, 2018   Page 4 of 7
       the sentencing statutes, but not to achieve a perceived ‘correct’ result in each

       case.” Id. at 1225. It is Perkins’s burden on appeal to establish that his sentence

       is inappropriate. Grimes v. State, 84 N.E.3d 635, 645 (Ind. Ct. App. 2017).


[10]   When considering the nature of the offense, we observe that “the advisory

       sentence is the starting point the Legislature selected as appropriate for the

       crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The

       advisory sentence for a Level 6 felony is one year, with a sentencing range of six

       months to two and one-half years. Ind. Code § 35-50-2-7. Therefore, Perkins

       was ordered to serve one year above the advisory.


[11]   We agree with both Perkins and the State that there is nothing remarkable

       about the offense. Perkins possessed cocaine, and he admitted to it. But there is

       also nothing about the nature of the offense which supports a finding that

       Perkins’s sentence was inappropriate. Rather, it is Perkins’s character that

       demonstrates his sentence was not inappropriate. See e.g. Felder v. State, 870

       N.E.2d 554, 559 (Ind. Ct. App. 2007) (although nothing about nature of offense

       warranted an enhanced sentence, the sentence was appropriate based on the

       defendant’s character).

[12]   Over a period of thirty-five years, Perkins has been convicted of nineteen

       misdemeanors4 and five felonies across two states. He has one conviction for




       4
         Although the trial court lists the number of Perkins’s misdemeanors at eighteen, we include his conviction
       for Class A misdemeanor unauthorized entry of a motor vehicle that he pleaded guilty to, and was convicted
       of, at the same time as the current offense. See Tr. pp. 9, 58.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-754 | September 28, 2018                Page 5 of 7
       felony dealing cocaine and four convictions for felony possession of cocaine.

       Thus each of his felony convictions are of the same character as the offense

       here. Perkins has also had his probation revoked three times, a suspended

       sentence revoked once, and a work release placement revoked once. Moreover,

       Perkins was on probation and out on bond when he committed the possession

       offense at issue here. Accordingly, Perkins’s extensive criminal history and

       numerous violations indicate that leniency in sentencing has not had a deterrent

       effect. See Ford v. State, 718 N.E.2d 1104, 1107 (Ind. 1999).


[13]   Just as concerning is Perkins’s failure with several opportunities for alternative

       placement and rehabilitation offered by the courts. The trial court explained at

       Perkins’s sentencing hearing:


               You’ve been given the benefit of short jail sentences, longer jail
               sentences, unsupervised probation, treatment at Brown and
               Associates, various counseling programs, time in the Department
               of Correction, active adult probation, parole, the Work Release
               Program, and then the Drug Court Program.


       Tr. p. 57. Perkins has been provided with numerous alternatives and

       opportunities in lieu of a fully execute sentence, however, they have all proven

       unsuccessful.


[14]   Perkins argues that his “character trait of a willingness to continue to fight

       demonstrates a character which overcomes the need for an all executed

       sentence in excess of the advisory sentence.” Appellant’s Br. at 11. But while in

       the Program here, Perkins tested positive for cocaine four times, he failed to


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-754 | September 28, 2018   Page 6 of 7
       attend several required support group meetings, he skipped a urine screen, and

       he eventually decided to voluntarily withdrawal from the Program. Thus

       although Perkins contends “that the appropriate sentence, based on his

       continuing willingness to overcome his addiction, should be something other

       than a totally executed sentence[,]” the record indicates he has not shown a

       willingness to fight or overcome his addiction. Moreover, the question before us

       is not to determine if the sentence was appropriate, but instead to ensure the

       imposed sentence is not inappropriate. Conley, 972 N.E.2d at 876.


[15]   While we commend Perkins for his military service, based on the reasons

       provided above, we cannot conclude that the trial court’s decision to impose a

       two-year executed sentence is an “outlier” that should be reversed under our

       constitutional authority to review and revise sentences. Caraway v. State, 977

       N.E.2d 469, 473 (Ind. Ct. App. 2012), trans. denied.


                                                 Conclusion
[16]   Based on the facts and circumstances before us, Perkins has not met his burden

       of persuading us that his two-year executed sentence is inappropriate in light of

       the nature of the offense and the character of the offender. Accordingly, we

       affirm.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-754 | September 28, 2018   Page 7 of 7
