MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be                                        Oct 22 2019, 9:16 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
Zachary J. Stock                                         Curtis T. Hill, Jr.
Zachary J. Stock, Attorney at Law, P.C.                  Attorney General of Indiana
Indianapolis, Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeremy E. Grimes,                                        October 22, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-653
        v.                                               Appeal from the Hendricks
                                                         Superior Court
State of Indiana,                                        The Honorable Rhett Stuard,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         32D02-1702-F2-1



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-653 | October 22, 2019                       Page 1 of 9
[1]   Jeremy E. Grimes appeals his placement in the Indiana Department of

      Correction (“DOC”) for his ten-year sentence for Level 2 felony dealing in

      cocaine. 1 We affirm.



                                Facts and Procedural History
[2]   In a related interlocutory appeal, we explained the underlying facts thus:


                 At approximately 4:50 a.m. on February 2, 2017, Indiana State
                 Police Officer Shawn Rawlins and a rookie officer in training
                 were driving eastbound on I-70 between State Road 267 and
                 Ronald Reagan Parkway. Officer Rawlins observed a vehicle
                 traveling westbound on County Road 600 South, a public road
                 that runs parallel to the highway. The vehicle appeared to be
                 driving toward a cell phone tower. When Officer Rawlins saw
                 the vehicle, he thought that “that vehicle should not be there at
                 that time of the morning.” Tr. Vol. II p. 8. He testified that “at
                 that time of the morning . . . especially on that access road, there
                 shouldn’t be any passenger vehicles going down there.” Id. at 29.


                 Officer Rawlins exited the highway and proceeded to County
                 Road 600 South to locate the vehicle. Officer Rawlins testified
                 that he is “very familiar with the area.” Id. at 12. This area is
                 dark and isolated; Officer Rawlins could “just slightly see the
                 back side of” a distribution warehouse. Id. at 10. He testified
                 that there is constant illegal dumping in that area; that he has
                 found other vehicles parked in and around that area in which
                 people were engaging in sexual interactions or illicit drug use;
                 that several times he has observed the lock on the cell phone
                 tower cut and that copper wire has been ripped out of a different



      1
          Ind. Code 35-48-4-1(a)(2) (2016).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-653 | October 22, 2019   Page 2 of 9
        nearby cell phone tower; and that there have been confirmed
        marijuana grows in the area.


        As the officer was driving on County Road 600 South, he
        checked the roads that intersect with it. As he came up to
        Bountiful Place, which is a public road with one residence on it,
        he could see a small dim light that he thought was possibly a
        vehicle’s dome light. He directed his spotlight down Bountiful
        Place and saw a dark-colored sedan sitting partially on the
        roadway. The vehicle appeared to be the same one the officer
        had observed from the highway. Officer Rawlins believed that
        this vehicle “most likely did not belong to the one resident on
        Bountiful Place.” Id. at 28. When the officer turned on his
        spotlight, the vehicle turned on its own lights and began moving
        forward. Officer Rawlins activated his emergency lights and the
        “vehicle stopped pretty much immediately.” Id. at 14. He
        testified that the vehicle moved “five to ten feet. . . . [I]t basically
        rolled forward and stopped.” Id. at 24. At the time, Officer
        Rawlins had not observed any traffic infractions.


        Officer Rawlins approached the driver’s side of the vehicle, while
        the rookie officer approached the passenger side. Grimes was
        sitting in the driver’s seat, and a woman was in the passenger’s
        seat. When Grimes rolled down his window, Officer Rawlins
        immediately smelled a strong odor of burnt marijuana. Officer
        Rawlins requested Grimes’s driver’s license and vehicle
        registration and asked what he was doing in the area. Both
        Grimes and the passenger appeared to be nervous and shaking,
        but their body movements appeared to be somewhat lethargic.
        Grimes had difficulty getting his driver’s license out of his wallet.
        Initially, he had difficulty explaining why they were in the area,
        but then he stated that they were out driving and talking and had
        gotten lost, and that they had pulled over to figure out how to get
        home. Officer Rawlins began explaining how they could return
        to the street they wanted to reach.


Court of Appeals of Indiana | Memorandum Decision 19A-CR-653 | October 22, 2019    Page 3 of 9
                 Meanwhile, the rookie officer signaled to Officer Rawlins that
                 drugs were in plain view in the vehicle. The two officers asked
                 Grimes and the passenger to exit the vehicle, and the officers
                 placed them in handcuffs. The officers found marijuana,
                 cocaine, 2 a scale, and a weapon inside the vehicle.


                 On February 3, 2017, the State charged Grimes with one count of
                 Level 2 felony dealing in cocaine, nine counts of Level 2 felony
                 dealing in a controlled substance, one count of Level 4 felony
                 dealing in a controlled substance, one count of Level 4 felony
                 possession of cocaine, eight counts of Level 6 felony possession
                 of a controlled substance, one count of Level 6 felony dealing in
                 marijuana, one count of Class B misdemeanor possession of
                 marijuana, and one count of Class C misdemeanor possession of
                 paraphernalia.


      Grimes v. State, 32A04-1709-CR-2001, slip op. at 1-2 (Ind. Ct. App. 2018) trans.

      Denied, (footnote added).


[3]   Pursuant to a plea agreement, Grimes pled guilty to one count of Level 2 felony

      dealing in cocaine and the State agreed to dismiss all other charges against him.

      The plea agreement provided that the trial court must impose at least the

      minimum sentence of ten years, with the executed portion of the sentence

      capped at six years. The trial court sentenced Grimes to ten years, with four

      years suspended to probation.




      2
          Police also found eleven different kinds of pills.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-653 | October 22, 2019   Page 4 of 9
                                 Discussion and Decision
[4]   Grimes argues his sentence is inappropriate in light of his character and the

      nature of his offense. Our standard of review is well settled.


              We “may revise a sentence authorized by statute 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.” Ind. Appellate Rule 7(B).
              “Although appellate review of sentences must give due
              consideration to the trial court’s sentence because of the special
              expertise of the trial bench in making sentencing decisions,
              Appellate Rule 7(B) is an authorization to revise sentences when
              certain broad conditions are satisfied.” Shouse v. State, 849
              N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and
              quotation marks omitted). “[W]hether we regard a sentence as
              appropriate 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 factors that come to light in a
              given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
              In addition to the “due consideration” we are required to give to
              the trial court’s sentencing decision, “we understand and
              recognize the unique perspective a trial court brings to its
              sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873
              (Ind. Ct. App. 2007).


      Couch v. State, 977 N.E.2d 1013, 1017 (Ind. Ct. App. 2012), reh’g denied, trans.

      denied. The appellant bears the burden of demonstrating his sentence is

      inappropriate. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011),

      trans. denied.


[5]   Grimes does not challenge the length of his sentence. Instead he challenges the

      trial court’s decision to order a portion of his sentence executed in the DOC.
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-653 | October 22, 2019   Page 5 of 9
      “The place that a sentence is to be served is an appropriate focus for application

      of our review and revise authority.” Biddinger v. State, 868 N.E.2d 407, 414

      (Ind. 2007). However, it is “quite difficult for a defendant to prevail on a claim

      that the placement of his or her sentence is inappropriate.” Fonner v. State, 876

      N.E.2d 340, 343 (Ind. Ct. App. 2007). As we explained in Fonner:


              As a practical matter, trial courts know the feasibility of
              alternative placements in particular counties or communities.
              For example, a trial court is aware of the availability, costs, and
              entrance requirements of community corrections placements in a
              specific locale. Additionally, 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.


      Id. at 343-4.


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

      point for determining the appropriateness of a sentence. Anglemyer v. State, 868

      N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). A

      Level 2 felony has a sentencing range of ten to thirty years with an advisory

      sentence of seventeen and one-half years. Ind. Code § 35-50-2-4.5. The trial

      court sentenced Grimes to the minimum, ten years, with four years suspended

      to probation.


[7]   Regarding the nature of his offense, the trial court found nothing extraordinary

      about the nature of Grimes’ offense. We note that while Grimes pled guilty to

      only one charge, the search of his vehicle revealed eleven different types of pills
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-653 | October 22, 2019   Page 6 of 9
       and a firearm, in addition to a large quantity of cocaine. Grimes’ main

       argument focuses on his character, which we now address.


[8]    To suggest his sentence is inappropriate for his character, Grimes attempts to

       analogize his case to Hoak v. State, 113 N.E.3d 1209 (Ind. 2019). In that case,

       Hoak pled guilty to Class B felony possession of methamphetamine and the

       trial court sentenced her to ten years imprisonment with four years suspended

       to probation. Id. On appeal, our Indiana Supreme Court remanded the case

       back to the trial court to determine Hoak’s eligibility for substance abuse

       treatment in a community correction program based in part on dicta in our

       opinion noting “she has yet to receive court-ordered substance abuse treatment”

       after committing multiple drug offenses in a short amount of time. Id. (quoting

       Hoak v. State, 18A-CR-1094, slip op. at 1 (Ind. Ct. App. 2018), trans. granted).


[9]    Subsequent to the Hoak decision, this court discussed the issue of sentencing

       individuals to substance abuse programs as an alternative to placement in the

       DOC in Shinkle v. State, 129 N.E.3d 212 (Ind. Ct. App. 2019), trans. denied. The

       facts of Shinkle are almost identical to those before us. Shinkle pled guilty to

       Level 2 felony dealing in methamphetamine and was sentenced to the advisory

       sentence for that offense, seventeen and one-half years. Id. at 213. The trial

       court ordered three years of Shinkle’s sentence to be served on probation and

       the final two years of his incarceration to be served on home detention. Id.


[10]   On appeal, Shinkle argued his case should be remanded for resentencing in

       order to determine his eligibility for placement in a substance abuse program


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-653 | October 22, 2019   Page 7 of 9
       because of our Indiana Supreme Court’s holding in Hoak. We distinguished

       Hoak, noting that Hoak’s crime was one of possession, not dealing, which

       indicated Shinkle’s increased “culpability.” Id. at 217. Further, when

       remanding Hoak, our Indiana Supreme Court specifically quoted the Indiana

       Court of Appeals’ opinion, which stated Hoak had not yet received substance

       abuse treatment despite years of drug-related offenses. The Shinkle court

       distinguished those facts because Shinkle’s trial court considered the possibility

       of substance abuse treatment but ultimately determined it inappropriate

       considering the circumstances. Id.


[11]   The same is true here. Like in Shinkle, Grimes pled guilty to a dealing offense,

       not a possession offense. Unlike in Hoak, wherein the trial court did not

       consider the possibility of substance abuse treatment, the trial court ordered

       Grimes to participate in substance abuse treatment while on probation and to

       “take advantage of every program they offer in the DOC.” (Tr. Vol. II at 59.)

       The trial court also stated in Grimes’ sentencing order: “Upon successful

       completion of the clinically appropriate Substance Abuse Treatment Program

       as determined by IDOC, the Court will consider a modification of this

       sentence.” (App. Vol. II at 141.) Hoak does not control.


[12]   Additionally, regarding his character, while Grimes’ criminal history is not

       egregious, he was arrested and convicted of an additional drug charge for a

       crime that occurred while he was out on bail for the current charge. As Grimes

       received the minimum sentence allowed for his offense, the trial court gave him

       multiple avenues to modify the terms of his placement upon successful

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-653 | October 22, 2019   Page 8 of 9
       completion of rehabilitative programs, and his sentence was within the

       requirements of his plea agreement, we cannot say his placement in the DOC

       for at least a portion of his minimum sentence is inappropriate. See Moon v.

       State, 110 N.E.3d 1156, 1163 (Ind. Ct. App. 2018) (placement not inappropriate

       based on nature of offense, character of offender, and opportunity to seek

       rehabilitative treatment).



                                               Conclusion
[13]   We cannot say Grimes’ initial placement in the DOC was inappropriate based

       on the nature of the offense or his character. Accordingly, we affirm.


[14]   Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-653 | October 22, 2019   Page 9 of 9
