MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                    Feb 21 2018, 9:06 am
regarded as precedent or cited before any
court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       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
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Jason H. Bader,                                          February 21, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1706-CR-1404
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Randy J. Williams,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79D01-1608-F2-25



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1706-CR-1404 | February 21, 2018         Page 1 of 7
[1]   Jason H. Bader appeals his sentence for dealing in methamphetamine, dealing

      in a synthetic drug or lookalike substance, and possession of paraphernalia.

      Bader raises one issue which is whether his sentence is inappropriate in light of

      the nature of the offense and his character. We affirm.


                                      Facts and Procedural History

[2]   In the morning of August 18, 2016, law enforcement approached Bader and a

      woman while they were seated in the front seats of Bader’s vehicle located in a

      Walmart parking lot in order to serve them with court documents. Bader

      handed a bag containing methamphetamine to the woman, and the woman

      threw the bag out of the window because the police were approaching. The

      officers noticed that it smelled as if the vehicle’s occupants had been smoking

      synthetic marijuana. The officer confirmed that the woman may have a

      warrant, asked her to exit the vehicle, and, after she did so, noticed the bag of

      methamphetamine on the ground near his feet and believed she had dropped it.

      The bag contained 12.91 grams of methamphetamine. The police further

      discovered two bags of a synthetic cannabinoid, one which weighed 21.87

      grams and the other 342 grams, a glass pipe with a white crystal residue in it, a

      digital scale, a cell phone, and a notebook. Bader told one of the officers that,

      “if [they] threw out the meth he would take the spice charges.” Transcript

      Volume 2 at 78.


[3]   The State charged Bader with: Count I, dealing in methamphetamine as a level

      2 felony; Count II, possession of methamphetamine as a level 4 felony; Count


      Court of Appeals of Indiana | Memorandum Decision 79A02-1706-CR-1404 | February 21, 2018   Page 2 of 7
III, dealing in a synthetic drug or lookalike substance as a level 6 felony; Count

IV, possession of a synthetic drug or lookalike substance as a class A

misdemeanor; Count V, possession of a synthetic drug or lookalike substance

while having a prior conviction as a level 6 felony; and Count VI, possession of

paraphernalia as a class C misdemeanor. A jury found Bader guilty on Counts

I, II, III, and IV, and of possession of paraphernalia as a class C misdemeanor.1

The court found Bader’s history of criminal or delinquent behavior, that he

violated his bond, that he was on probation when he committed the instant

offenses, his history of substance abuse, and that prior attempts at rehabilitation

have been unsuccessful as aggravating factors. It found his work history and

the support of his family and friends as mitigating factors and that the

aggravating factors outweighed the mitigating factors. The court merged Count

II with Count I and Count IV with Count III, vacated Counts II and IV, and

dismissed Count VI. It entered convictions for dealing in methamphetamine as

a level 2 felony under Count I, dealing in a synthetic drug or lookalike

substance as a level 6 felony under Count III, and possession of paraphernalia

as a class C misdemeanor under Count V. Bader was sentenced to twenty-two

years with four years to be served in community corrections and two years

suspended to probation on Count I, two years on Count III, and sixty days on




1
  The court’s jury trial minutes indicate that Bader was found guilty of possession of paraphernalia as a class
C misdemeanor under Count V and that, on motion of the State, Count VI was dismissed. The court’s
abstract of judgment also indicates the court entered a conviction for possession of paraphernalia as a class C
misdemeanor under Count V and that the charge for possession of synthetic drug or lookalike substance as a
level 6 felony under Count VI was dismissed.

Court of Appeals of Indiana | Memorandum Decision 79A02-1706-CR-1404 | February 21, 2018            Page 3 of 7
      Count V all concurrent, for an aggregate sentence of twenty-two years with

      sixteen years in the Indiana Department of Correction, four years in

      community corrections, and two years suspended to probation.


                                                  Discussion

[4]   The issue is whether Bader’s aggregate 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

      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).


[5]   Bader asserts his aggregate sentence is inappropriate and argues that his offense

      constitutes a level 2 felony because he possessed two grams more than the ten-

      gram threshold, that he “is a far cry from being categorized as a drug ‘king

      pin,’” and that he delivered methamphetamine primarily to friends and family

      for free. Appellant’s Brief at 10. He further argues that his good character is

      evidenced by the support he received from friends, family, and co-workers, that

      he has only one prior felony conviction and one prior narcotics-related

      conviction which was a misdemeanor, that he has a strong work history, and

      that he expressed remorse at sentencing.


[6]   The State maintains that Bader was convicted of three crimes, sold

      methamphetamine and synthetic marijuana while on probation, tried to


      Court of Appeals of Indiana | Memorandum Decision 79A02-1706-CR-1404 | February 21, 2018   Page 4 of 7
      convince an officer to destroy evidence, and that the police found 12.91 grams

      of methamphetamine and over 360 grams of synthetic marijuana. It also argues

      that it is not true that Bader primarily delivered methamphetamine for free and

      that, even if Bader did give away his product for free, a bad businessman is as

      much a dealer as a good one. With respect to Bader’s character, the State

      points to his criminal history and argues that he continues to commit crimes

      and violate his probation despite prior leniency and that he has had

      opportunities to rehabilitate but has refused to help himself.


[7]   A person who commits a level 2 felony shall be imprisoned for a term of

      between ten and thirty years with the advisory sentence being seventeen and

      one-half years, Ind. Code § 35-50-2-4.5; a person who commits a level 6 felony

      shall be imprisoned for a term of between six months and two and one-half

      years with the advisory sentence being one year, Ind. Code § 35-50-2-7; and a

      person who commits a class C misdemeanor shall be imprisoned for a term of

      not more than sixty days, Ind. Code § 35-50-3-4.


[8]   Our review of the nature of the offenses reveals that Bader possessed, with

      intent to deliver, methamphetamine and synthetic cannabinoid and knowingly

      or intentionally possessed a glass pipe intended to be used for introducing a

      controlled substance into a person’s body. The police discovered 12.91 grams

      of methamphetamine and over 360 grams of synthetic cannabinoid as well as a

      digital scale. Bader told one of the police officers that he would take spice

      charges if the officers would throw out the methamphetamine.



      Court of Appeals of Indiana | Memorandum Decision 79A02-1706-CR-1404 | February 21, 2018   Page 5 of 7
[9]   Our review of the character of the offender reveals that, according to the

      presentence investigation report (the “PSI”), Bader’s criminal history includes

      theft as a juvenile in 1990, battery as a class B misdemeanor in 1993, public

      intoxication as a class B misdemeanor in 1994, operating a vehicle while

      intoxicated as a class A misdemeanor in 2001, public intoxication as a class B

      misdemeanor in 2007, battery resulting in bodily injury as a class A

      misdemeanor in 2008, two counts of domestic battery as class A misdemeanors

      in 2013, domestic battery as a class D felony in 2014, possession of a synthetic

      drug or lookalike substance as a class A misdemeanor in 2015, and domestic

      battery as a class A misdemeanor and unauthorized entry of a motor vehicle as

      a class B misdemeanor in 2016. The PSI states that Bader has had fourteen

      petitions to revoke probation filed against him, with four pending, and that he

      was on probation at the time he committed the instant offenses. He reported

      that he has been employed by a laborers union since 1998, and presented

      evidence at sentencing that he was part of a local laborers union, worked

      consistently since 2000, and worked long hours. The PSI indicates that he

      reported first consuming alcohol when he was ten years old and drugs when he

      was twelve years old, and he reported extensive prior use of marijuana,

      synthetic marijuana, cocaine, crack cocaine, methamphetamine, LSD,

      mushrooms, heroin, Xanax, Oxycodone, and Adderall. The PSI provides that,

      when asked the role drugs or alcohol played in the instant offenses, Bader

      reported “[i]t was all about getting drugs for our addictions, same as every case

      I’ve been arrested for.” Appellant’s Appendix Volume 2 at 119. The record

      reveals that the court signed an order on March 31, 2017, which states that

      Court of Appeals of Indiana | Memorandum Decision 79A02-1706-CR-1404 | February 21, 2018   Page 6 of 7
       Bader failed a drug screen and tested positive for methamphetamine and his

       bond revoked. Bader expressed remorse towards his family and community.

       The PSI indicates that his overall risk assessment score using the Indiana risk

       assessment system places him in the very high risk to reoffend category. The

       probation officer who prepared the PSI recommended that Bader receive a

       sentence of twenty-two years with four years served on community corrections

       and two years suspended to probation.


[10]   After due consideration, we conclude that Bader has not sustained his burden of

       establishing that his aggregate sentence is inappropriate in light of the nature of

       the offense and his character.


                                                   Conclusion

[11]   For the foregoing reasons, we affirm Bader’s aggregate sentence.


[12]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1706-CR-1404 | February 21, 2018   Page 7 of 7
