MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                     Apr 26 2017, 6:24 am
court except for the purpose of establishing                       CLERK
the defense of res judicata, collateral                        Indiana Supreme Court
                                                                  Court of Appeals
estoppel, or the law of the case.                                   and Tax Court




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

Todd A. Barr,                                            April 26, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A04-1611-CR-2593
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable David R. Bolk,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         84D03-1602-F4-502



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2593| April 26, 2017   Page 1 of 6
                                             Case Summary
[1]   Todd Barr appeals his commitment to the Department of Correction and argues

      that placement is inappropriate. We affirm.


                                                     Issue
[2]   Barr raises one issue for our review, which is whether his commitment to the

      Department of Correction is inappropriate.


                                                     Facts
[3]   On February 18, 2016, Barr reported for an appointment with his parole officer,

      Brandon Lovelace, in Vigo County. Barr was on parole after he finished

      serving an executed sentence for forgery. Lovelace administered a drug screen,

      and Barr tested positive for methamphetamine. Lovelace asked Barr if he had

      any contraband in his vehicle, and Barr informed him that he had marijuana

      and methamphetamine. Lovelace searched Barr’s vehicle and discovered

      substances later identified as methamphetamine and marijuana, a digital scale,

      two pipes containing methamphetamine residue, and a “snort tube.” App. Vol.

      II p. 74.


[4]   The State charged Barr with: (I) dealing in methamphetamine, a Level 4 felony;

      (II) dealing in methamphetamine, a Level 5 felony; (III) possession of

      methamphetamine, a Level 6 felony; (IV) maintaining a common nuisance, a

      Level 6 felony; (V) maintaining a common nuisance, a Level 6 felony; and (VI)

      possession of paraphernalia, a Class A misdemeanor. The State also alleged

      Barr was an habitual offender. On October 13, 2016, Barr pled guilty to one
      Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2593| April 26, 2017   Page 2 of 6
      count of dealing in methamphetamine, a Level 5 felony, and admitted to being

      an habitual offender.1 Pursuant to the plea agreement, the State dismissed all

      the remaining charges against Barr. Barr and the State agreed Barr would serve

      four years in the Department of Correction, and that that sentence would be

      enhanced by four years, for an aggregate sentence of eight years. Barr and the

      State agreed to “argue all other terms of said sentence before the Court.” App.

      Vol. II. p. 85. Specifically, the parties argued, “how much and where it’s

      executed is up to the Court.” Tr. Vol. V p. 6.


[5]   On October 13, 2016, the trial court held Barr’s sentencing hearing. Barr

      presented evidence that he qualified to serve the executed portion of his

      sentence in a work release program and asked the trial court to place him in

      such a program. In its sentencing statement, the trial court noted that Barr was

      on parole at the time he committed this offense. The trial court also cited Barr’s

      history of felony offenses and his prior, unsuccessful attempt to complete a

      “community control” program. Oct. 13, 2016, Tr. p. 23. The trial court

      ordered Barr to serve six years of his sentence in the Department of Correction

      and suspended the remaining two years of his sentence. Barr now appeals.




      1
       Barr initially entered a guilty plea on August 11, 2016. The parties subsequently agreed to amend the plea
      agreement, however, and, on October 16, 2016, Barr withdrew his original guilty plea and pled guilty
      according to the terms of the new plea agreement.

      Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2593| April 26, 2017              Page 3 of 6
                                                  Analysis
[6]   Barr argues that the trial court inappropriately ordered him to serve the

      executed portion of his sentence in the Department of Correction rather than on

      work release. Indiana 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

      offenses and the character of the offender. When considering whether a

      sentence is inappropriate, we need not be “extremely” deferential to a trial

      court’s sentencing decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.

      App. 2007). Still, we must give due consideration to that decision. Id. We also

      understand and recognize the unique perspective a trial court brings to its

      sentencing decisions. Id. 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]           The location where a sentence is to be served is an appropriate
              focus for application of our review and revise authority. . . we
              note that it will be quite difficult for a defendant to prevail on a
              claim that the placement of his sentence is inappropriate. This is
              because 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. A defendant
              challenging the placement of a sentence must convince us that
              the given placement is itself inappropriate. As a practical matter,
              trial courts know the feasibility of alternative placements in
              particular counties or communities.




      Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2593| April 26, 2017   Page 4 of 6
       King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008) (citing Biddinger v. State,

       868 N.E.2d 407, 414 (Ind. 2007).


[8]    Barr contends the nature of his offense is “minor.” Appellant’s Br. p. 7. Barr is

       candid about his “lengthy criminal history,” but argues it “was likely the result

       of a controlled substance addiction that could respond well to court-ordered

       treatment,” something he says no trial court ever required him to do. Id.


[9]    In some circumstances, we might agree with Barr’s assessment that the nature

       of his offense is minor. However, in light of Barr’s history of substance-related

       offenses, we do not agree that the instant conviction can be so readily

       dismissed. Instead, this offense is a continuation of Barr’s decades-long history

       of substance offenses and offenses committed while in pursuit of substances.


[10]   With regard to the character of the offender, we note that Barr’s criminal

       history includes “no fewer than 14 known criminal convictions,” including drug

       and alcohol offenses, a driving offense, multiple burglary convictions, theft, and

       forgery. App. Vol. II p. 65. We further note that Barr was discharged

       unsuccessfully from a “community control” program in Ohio and was unable

       to successfully complete the period of parole he was serving when he was

       arrested in this case. Id. Barr testified he previously has been enrolled in

       substance abuse treatment programs. In 2006, Barr participated in a ninety-day

       program at Amethyst House in Bloomington. In approximately 2011, he

       participated in a program called Turning Point.




       Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2593| April 26, 2017   Page 5 of 6
[11]   We credit Barr with attending those programs and stating that he wants to

       overcome his addiction. Nonetheless, the fact remains that Barr has a lengthy

       criminal history and historically has been unable to complete community-

       supervision programs such as the one in which he contends the trial court

       should have ordered him to serve his sentence in this case. In light of the

       foregoing, we conclude Barr’s commitment to the Department of Correction is

       not inappropriate.


                                                 Conclusion
[12]   Barr’s sentence, which required him to serve six years of his sentence in the

       Department of Correction, is not inappropriate. We affirm.


[13]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2593| April 26, 2017   Page 6 of 6
