MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
                                                                      Sep 28 2018, 11:25 am
regarded as precedent or cited before any
court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher Allen,                                       September 28, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1192
        v.                                               Appeal from the Franklin Circuit
                                                         Court
State of Indiana,                                        The Honorable Clay M.
Appellee-Plaintiff.                                      Kellerman, Judge
                                                         Trial Court Cause No.
                                                         24C02-1703-F6-260



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1192 | September 28, 2018             Page 1 of 6
[1]   Christopher Allen appeals his sentence for unlawful possession of a syringe as a

      level 6 felony. He raises one issue which we revise and restate as whether his

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

      We affirm.


                                      Facts and Procedural History

[2]   On or about March 3, 2017, Allen knowingly or intentionally possessed a

      hypodermic syringe or needle or an instrument adapted for the use of a

      controlled substance by injection. On March 21, 2017, the State charged him

      with possession of a syringe as a level 6 felony. On March 14, 2018, the State

      filed a Notice of Intent to File Habitual Offender Enhancement “if good faith

      plea negotiations are unsuccessful.” Appellant’s Appendix Volume 2 at 46.


[3]   On March 29, 2018, the court held a guilty plea hearing, and Allen pled guilty

      as charged. The prosecutor recommended a maximum thirty-month sentence

      “which would be justified, if by nothing else . . . his criminal history.”

      Transcript Volume 2 at 9. He also recommended that Allen receive credit for

      time served and that the remainder of the sentence be suspended to probation

      with the only condition being the completion of an in-patient rehabilitation

      program. Allen’s counsel requested the same sentence, stated that Allen had a

      bed available for him at the Salvation Army, and asked to continue the

      sentencing until a pending probation violation was resolved. The court

      accepted Allen’s plea and scheduled a sentencing hearing for April 10, 2018.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1192 | September 28, 2018   Page 2 of 6
[4]   At the sentencing hearing Allen’s counsel argued that the Salvation Army had a

      bed available for him immediately, that Allen used drugs during his most recent

      stay in the Department of Correction, and that he needed a treatment program.

      His counsel also stated that Allen had “been in jail now for five months, so he’s

      certainly been cleaned out” and “[h]e’s not sick in any way.” Id. at 18. The

      court stated:


              Mr. Allen, I understand the arguments of your counsel, I do, and
              I also keep looking at your criminal history and I know – I know
              that you’ve been told multiple times to take you know,
              rehabilitation seriously, and the record in this case indicates that
              you’ve been given that chance here recently, and you said you
              were going to do it and it didn’t go well.


      Id. at 23. The court found Allen’s criminal history including thirteen

      convictions and five previous probation violations to be an aggravating factor.

      The court stated: “You have a decade left on probation, there’s just not much

      else – there’s not much reason I can think of to sentence [] you [to] any more

      probation; I don’t know what else probation can do for you.” Id. at 23-24. The

      court considered Allen’s guilty plea and sentenced him to two years in the

      Franklin County Security Center.


                                                  Discussion

[5]   The issue is whether Allen’s sentence is inappropriate in light of the nature of

      the offense and his character. Allen acknowledges that he had a substantial

      criminal history but states that all but one of his felonies was a low-level felony.

      He also asserts that the State agreed that he appeared to be ready to engage in

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1192 | September 28, 2018   Page 3 of 6
      treatment for his addiction. The State argues that Allen’s sentence is not

      inappropriate.


[6]   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).


[7]   Ind. Code § 35-50-2-7 provides in part that a person who commits a level 6

      felony shall be imprisoned for a fixed term of between six months and two and

      one-half years, with the advisory sentence being one year.


[8]   Our review of the nature of the offense reveals that Allen knowingly or

      intentionally possessed a hypodermic syringe or needle or an instrument

      adapted for the use of a controlled substance by injection. Our review of the

      character of the offender reveals that Allen pled guilty as charged after the State

      filed a Notice of Intent to File Habitual Offender Enhancement. While the

      record does not contain a presentence investigation report, the prosecutor stated

      at the guilty plea hearing that he thought the parties would agree that Allen had

      a substantial criminal history, that he thought Allen had six prior felony

      convictions, and that it “looks like at least four of those were for marijuana, that

      was at the time elevated to a Class D felony, based on prior convictions.”

      Transcript Volume 2 at 6-7. When asked by the court what number of


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1192 | September 28, 2018   Page 4 of 6
      conviction this would be, the prosecutor answered: “I think this would be a

      seventh felony; there’s also misdemeanor convictions.” Id. at 7. Allen

      indicated that there was a pending probation violation. At the sentencing

      hearing, the court asked about Allen’s criminal history, and the prosecutor

      replied: “[F]or purposes of review, dealing in controlled substances, Class B,

      2011; possession of marijuana, a D felony 2011; possession of marijuana, D

      Felony 2011; possession of marijuana, D felony 08; possession of marijuana, D

      felony 07; receiving stolen property, D felony 03. There’s some misdemeanor

      convictions as well . . . .” Id. at 15. When asked how many misdemeanors, the

      prosecutor stated: “That I don’t know. I lost – there were older cases, and

      there’s only so much room on the page where I usually put a criminal history.

      With the significance of the felony convictions, I don’t know that.” Id. at 15-

      16. When asked by the court, the court reporter stated that Allen had six prior

      misdemeanor convictions and six prior felony convictions.


[9]   When asked by the court about the sentence Allen received on his most recent

      felony conviction, the prosecutor answered: “The most recent he got, dealing in

      a controlled substance, Class B felony, 2011, . . . he was sentenced to 17 years

      with five suspended. He was released on or about – in June of 2016, and I

      guess nine months later he got in trouble for this matter.” Id. at 11. The court

      asked: “Was his bond to be bonded out to go to rehab, and then didn’t go?” Id.

      Allen’s counsel answered: “Correct. He left after I think one day, he didn’t stay

      there.” Id. When asked if Allen had violated probation previously, the court

      reporter stated: “He’s been placed on probation six times out of circuit court.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1192 | September 28, 2018   Page 5 of 6
       He completed one term successfully, and after that he’s had five probation

       violations.” Id. at 16. Allen’s counsel stated that Allen told him that “on his

       most recent stay in the Department of Corrections, he was still using drugs in

       the Department of Corrections.” Id. at 17.


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

       establishing that his sentence of two years is inappropriate in light of the nature

       of the offense and his character.


                                                   Conclusion

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


[12]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1192 | September 28, 2018   Page 6 of 6
