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:

DERICK W. STEELE                                    GREGORY F. ZOELLER
Deputy Public Defender                              Attorney General of Indiana
Kokomo, Indiana

                                                    MICHELLE BUMGARNER
                                                    Deputy Attorney General

                                                                                  FILED
                                                    Indianapolis, Indiana


                                                                              Apr 11 2012, 9:22 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                      CLERK
                                                                                    of the supreme court,
                                                                                    court of appeals and
                                                                                           tax court




DAVID BUTLER,                                       )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 34A05-1109-CR-477
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE HOWARD SUPERIOR COURT
                        The Honorable William C. Menges, Jr., Judge
                             Cause No. 34D01-0804-FA-237



                                          April 11, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
          David Butler (“Butler”) pleaded guilty to possession of cocaine1 as a Class B

felony and was sentenced to ten years executed after being terminated from the Howard

County Drug Court Program (“Drug Court”). He appeals, raising the following restated

issues:

          I.        Whether Butler‟s sentence was inappropriate in light of the nature of
                    the offense and the character of the offender; and

          II.       Whether the trial court violated Butler‟s due process rights by
                    relying on improper considerations when it terminated him from
                    Drug Court and sentenced him.

          We affirm.

                              FACTS AND PROCEDURAL HISTORY

          On February 8, 2008, Butler sold cocaine and ecstasy pills to a Howard County

Drug Task Force informant during a controlled buy drug investigation.                The State

charged Butler with dealing in cocaine as a Class A felony. On March 11, 2008, pursuant

to a plea agreement, Butler pleaded guilty to the lesser included offense of possession of

cocaine as Class B felony. As part of the plea agreement, sentencing was deferred

pending Butler‟s participation in Drug Court. The plea agreement provided that if Butler

failed Drug Court, the matter shall be set for sentencing “with the terms and conditions of

that sentence decided by the [trial court] after evidence and arguments.” Appellant’s

App. at 68.

          On June 1, 2011, the State filed its notice of intent to terminate Butler from Drug

Court due to Butler‟s failure to follow the Drug Court rules. An evidentiary hearing was

          1
              See Ind. Code § 35-48-4-6(b)(2)(B).


                                                    2
held, at which Laura Rood (“Rood”), the Drug Court Coordinator, testified. She gave

evidence of Butler‟s failure to progress through the stages of the program and his various

rule violations, including using a moped without permission, failing to follow curfew,

failing to provide receipts and work schedules in a timely manner, failure to pay Drug

Court fees, eviction from the Kokomo Rescue Mission for failure to abide by their rules,

and failure to abide by Drug Court banking policies. Tr. at 16-19. The trial court found

that Butler had violated the terms of Drug Court and terminated him from the program.

On August 18, 2011, the trial court sentenced Butler to ten years executed in the

Department of Correction. Butler now appeals.

                            DISCUSSION AND DECISION

                               I. Inappropriate Sentence

       “This court has authority to revise a sentence „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.‟” Spitler v. State, 908 N.E.2d 694,

696 (Ind. Ct. App. 2009) (quoting Ind. Appellate Rule 7(B)), trans. denied. “Although

Indiana Appellate Rule 7(B) does not require us to be „extremely‟ deferential to a trial

court‟s sentencing decision, we still must give due consideration to that decision.”

Patterson v. State, 909 N.E.2d 1058, 1062-63 (Ind. Ct. App. 2009) (quoting Rutherford v.

State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007)). We understand and recognize the

unique perspective a trial court brings to its sentencing decisions. Id. at 1063. The

defendant bears the burden of persuading this court that his sentence is inappropriate. Id.



                                             3
       Butler argues that his sentence was inappropriate in light of the nature of the

offense and his character. He contends this is because the nature of his offense was not

egregious or heinous since it did not involve any physical injury, pecuniary loss, or any

actual victim and there were no children in the area during the time of the transaction.

Butler further asserts that his sentence was inappropriate based upon his character

because he had been battling substance abuse for many years and had expressed a desire

to get help for his addiction. Butler therefore claims that his ten-year sentence was

inappropriate. We disagree.

       A person who commits a Class B felony shall be imprisoned for a fixed term of

between six and twenty years, with the advisory sentence being ten years. Ind. Code § 35-

50-2-5. Butler was given the advisory sentence of ten years. The nature of the offense

was that Butler sold cocaine and ecstasy pills to an informant within 1,000 feet of a

public park. As to his character, Butler had a criminal history that included juvenile

adjudications for being a runaway, domestic battery, contempt of court, and violating

probation; he also had an adult conviction for operating a vehicle without receiving a

license. Butler also had a long history of substance abuse. We do not believe that Butler

has shown that his ten-year advisory sentence was inappropriate in light of the nature of

the offense and the character of the offender.

                                     II. Due Process

       Butler appears to argue that the trial court deprived him of his due process rights

because it sentenced him based on “materially untrue assumptions” not contained in any

report and not submitted before the court at sentencing. Appellant’s Br. at 7. Butler is

                                             4
correct that, “the defendant is entitled to be sentenced only on the basis of accurate

information, and the defendant retains the right to refute any inaccurate or improper

information.” Bluck v. State, 716 N.E.2d 507, 512 (Ind. Ct. App. 1999). Although “a

sentence based on materially untrue assumptions violates due process,” id., this case does

not present such a problem. Here, the trial court specifically found that there were no

significant aggravating factors and no significant mitigating factors and sentenced Butler

to the statutory advisory sentence. Tr. at 49. Further, to the extent that Butler is arguing

that the trial court improperly considered his termination from Drug Court as an

aggravating factor, he is incorrect as the trial court specifically found no significant

aggravating or mitigating factors existed.

       It also appears that Butler is arguing that the trial court improperly terminated his

participation in Drug Court because insufficient evidence was presented to prove he

violated the rules of Drug Court. In order to enter Drug Court, a participant must plead

guilty to the charged offense and entry of judgment will be stayed. Ind. Code § 33-23-

16-14(a). However, if a participant stops successfully participating in the program or

does not successfully complete the program, the court shall lift the stay, enter judgment

of conviction, and sentence the participant accordingly. Ind. Code § 33-23-16-14(b). A

participant may be terminated from Drug Court if he has violated at least one of the

conditions of the participation agreement. Ind. Code § 33-23-16-14.5(a)(1).

       Forensic diversion programs, such as Drug Court, are encompassed in Community

Corrections.   See Ind. Code § 11–12–3.7–4.          When reviewing the revocation of

placement in a community corrections program, the standard of appellate review is the

                                             5
same as that of a probation revocation. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999);

Brooks v. State, 692 N.E.2d 951, 953 (Ind. Ct. App. 1998), trans. denied. We will not

reweigh evidence or assess the credibility of witnesses. Braxton v. State, 651 N.E.2d

268, 270 (Ind. 1995). Rather, we consider only the evidence that supports revocation

from the program, and draw all reasonable inferences from that evidence. Id. The State‟s

burden of proof in probation revocation and similar proceedings is merely to prove an

alleged violation by a preponderance of the evidence, not beyond a reasonable doubt. See

Rosa v. State, 832 N.E.2d 1119, 1121 (Ind. Ct. App. 2005).

        Here, the State presented evidence that Butler violated not just one, but several of

the rules governing his participation in Drug Court. Evidence was presented by Rood

that Butler failed to timely provide Drug Court with his work schedule and receipts,2

violated curfew, did not pay his Drug Court fees, failed to abide by the rules of Kokomo

Rescue Mission, and was in possession of both a moped and cell phone, both of which he

was not allowed to possess without permission. Tr. at 17-20. Rood testified that Butler

violated five different rules contained in his participation agreement. Id. at 20. Although

the State was only required to prove the violation of one condition of the participation

agreement, it presented evidence to prove that Butler repeatedly violated several of the

terms of his participation agreement and also failed to make satisfactory progress through

the stages of the program. Sufficient evidence was presented to terminate Butler from

Drug Court.


        2
         Butler was required to provide receipts of transactions made in order for Drug Court to monitor
and keep track of how he was spending his money.

                                                   6
      We therefore conclude that Butler‟s ten-year advisory sentence was not

inappropriate in light of the nature of the offense and the character of the offender.

Additionally, the trial court did not sentence him based on improper considerations

because it did not find any significant aggravating and mitigating factors and sentenced

him to the statutory advisory term. Lastly, sufficient evidence was presented to support

Butler‟s termination from Drug Court.

      Affirmed.

BARNES, J., and BRADFORD, J., concur.




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