MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             FILED
regarded as precedent or cited before any
                                                             Mar 09 2017, 7:07 am
court except for the purpose of establishing
the defense of res judicata, collateral                           CLERK
                                                              Indiana Supreme Court
estoppel, or the law of the case.                                Court of Appeals
                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Derick W. Steele                                        Curtis T. Hill, Jr.
Deputy Public Defender                                  Attorney General of Indiana
Kokomo, Indiana
                                                        Jesse R. Drum
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Devon R. Rush,                                          March 9, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        34A05-1607-CR-1590
        v.                                              Appeal from the
                                                        Howard Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     William C. Menges, Jr., Judge
                                                        Trial Court Cause No.
                                                        34D01-1505-F2-485



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A05-1607-CR-1590 |March 9, 2017   Page 1 of 7
[1]   Devon R. Rush (“Rush”) pleaded guilty to dealing in a narcotic drug 1 as a Level

      2 felony, dealing in cocaine2 as a Level 2 felony, and unlawful possession of a

      firearm by a serious violent felon (“SVF”),3 a Level 4 felony, and was sentenced

      to a thirty-year aggregate sentence. He appeals, raising the following restated

      issue: whether his thirty-year 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 May 20, 2015, the police found Rush in the backseat of a car, sitting next to

      a child in a car seat, and in close proximity to a loaded .380 handgun, 22.4

      grams of heroin, 48.7 grams of cocaine, and $3,871 in cash. Rush initially lied

      to the police and said the gun and drugs were not his, and another passenger

      lied and said the gun and drugs were hers. On May 22, 2015, the State charged

      Rush with Level 2 felony dealing in a narcotic drug, Level 2 felony dealing in

      cocaine, Level 3 felony possession of a narcotic drug, Level 3 felony possession

      of cocaine, and Level 4 felony possession of a firearm by a SVF.


[4]   The parties entered into a plea agreement in which Rush agreed to plead guilty

      to Level 2 felony dealing in a narcotic drug, Level 2 felony dealing in cocaine,




      1
          See Ind. Code § 35-48-4-1(a)(2), (e)(1).
      2
          See Ind. Code § 35-48-4-1(a)(2), (e)(1).
      3
          See Ind. Code § 35-47-4-5(c).


      Court of Appeals of Indiana | Memorandum Decision 34A05-1607-CR-1590 |March 9, 2017   Page 2 of 7
      and Level 4 felony possession of a firearm by a SVF in exchange for the State’s

      dismissal of the remaining counts. The parties agreed that sentencing would be

      left to the discretion of the trial court, but that the sentences would run

      concurrently.


[5]   The trial court found Rush’s prior criminal history, the fact that he was on

      probation when he committed the present offenses, and his decision to deal

      drugs even though he had two young children to take care of as aggravating

      factors. Tr. at 30-31. The trial court gave Rush’s guilty plea mitigating weight

      since he pleaded guilty “in the midst of trial.” Id. at 31. After finding that the

      aggravating and mitigating factors justified an enhanced sentence, the trial court

      imposed thirty years for Level 2 felony dealing in a narcotic drug, thirty years

      for Level 2 felony dealing in cocaine, and twelve years for Level 4 felony

      possession of a firearm by a SVF and ordered the sentences to run concurrently

      for an aggregate sentence of thirty years. Rush now appeals.


                                     Discussion and Decision
[6]   Under Indiana Appellate Rule 7(B), “we may revise any sentence authorized by

      statute if we deem it to be inappropriate in light of the nature of the offense and

      the character of the offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct.

      App. 2014). The 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, 268 (Ind. Ct. App.

      2008). It is the defendant’s burden on appeal to persuade the reviewing court


      Court of Appeals of Indiana | Memorandum Decision 34A05-1607-CR-1590 |March 9, 2017   Page 3 of 7
      that the sentence imposed by the trial court is inappropriate. Chappell v. State,

      966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.


[7]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

      sentence to the circumstances presented, and the trial court’s judgment “should

      receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

      2008). The principal role of appellate review is to attempt to “leaven the

      outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

      end of the day turns on “our sense of the culpability of the defendant, the

      severity of the crime, the damage done to others, and myriad other facts that

      come to light in a given case.” Id. at 1224.


[8]   Rush argues that the trial court erred in sentencing him and that his thirty-year

      sentence is inappropriate in light of the nature of the offense and the character

      of the offender. He specifically asserts that the nature of his offense was not the

      worst offense and that, although he had a significant criminal history, his

      character does not make him the worst offender. To bolster his character, Rush

      contends that he was only engaged in dealing drugs to help a family member

      bond out of jail and not for selfish personal gain and that his children would be

      impacted by his incarceration.


[9]   When considering the nature of the offense, the advisory sentence is the starting

      point to determine the appropriateness of a sentence. Johnson v. State, 986

      N.E.2d 852, 856 (Ind. Ct. App. 2013) (citing Anglemyer v. State, 868 N.E.2d 482,

      494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007)). Here, Rush pleaded


      Court of Appeals of Indiana | Memorandum Decision 34A05-1607-CR-1590 |March 9, 2017   Page 4 of 7
       guilty to one count of Level 2 felony dealing in a narcotic drug, one count of

       Level 2 felony dealing in cocaine, and one count of Level 4 felony possession of

       a firearm by a SVF. A person who commits a Level 2 felony shall be

       imprisoned for a fixed 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 4 felony shall be imprisoned for a fixed term of

       between two and twelve years, with the advisory sentence being six years. Ind.

       Code § 35-50-2-5.5. Here, the trial court sentenced Rush to thirty years for each

       of his Level 2 felony convictions and twelve years for his Level 4 felony

       conviction and ordered the sentences to be served concurrently for a total

       sentence of thirty years.


[10]   As to the nature of the offense, police discovered Rush in a car, sitting next to a

       baby, and in possession of a loaded handgun, 22.4 grams of heroin, 48.7 grams

       of cocaine, and $3,871 in cash. At the time he was found to be possession of

       this contraband, he was on probation for dealing drugs. When confronted with

       the contraband by the police, Rush lied about possessing the drugs, handgun,

       and cash and, instead, allowed the other passengers in the car to take the blame

       for the items.


[11]   As to Rush’s character, he had a significant criminal history, beginning when he

       was a juvenile. He began dealing drugs at the age of sixteen years old, and he

       was twenty-eight at the time of sentencing. His criminal history consisted of a

       juvenile adjudication for possession of marijuana, a felony conviction for

       possession of cocaine or narcotic drug, three misdemeanor convictions for

       Court of Appeals of Indiana | Memorandum Decision 34A05-1607-CR-1590 |March 9, 2017   Page 5 of 7
       operating a vehicle without ever receiving a license, and two Class B felony

       convictions for dealing in cocaine. Rush was released from the Community

       Transition Program on April 13, 2015 and started dealing drugs again about a

       week later. He also began to use cocaine, marijuana, and Lortab since leaving

       incarceration. Rush was also still on probation when he committed the instant

       offenses on May 20, 2015.


[12]   Further, although Rush asserts that he was only dealing drugs to earn money to

       help bond his family member out of jail, he does concede that that was not an

       excuse for committing a crime. Additionally, Rush’s criminal history

       demonstrates that his present offenses were not out of line with his criminal

       history. Further, even though Rush had two young children, he chose to

       commit crimes instead of reuniting with them after being recently released from

       incarceration. Lastly, while Rush claims his sentence is inappropriate because

       he should have received leniency due to his guilty plea, the traditional reasons

       for granting lenience were not present here because Rush did not plead guilty

       until the third day of his jury trial after the trial court and the State had

       expended time and resources in trying him. See Pagdett v. State, 875 N.E.2d 310,

       317 (Ind. Ct. App. 2007) (“[T]he significance of a guilty plea is lessened if it is

       made on the eve of trial after the State has expended resources in preparing its

       case.”), trans. denied. We conclude that, in light of the nature of the offense and

       the character of the offender, Rush’s sentence is not inappropriate.


[13]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 34A05-1607-CR-1590 |March 9, 2017   Page 6 of 7
Robb, J., and Barnes, J., concur.




Court of Appeals of Indiana | Memorandum Decision 34A05-1607-CR-1590 |March 9, 2017   Page 7 of 7
