MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                   Dec 06 2019, 9:55 am
court except for the purpose of establishing                                       CLERK
the defense of res judicata, collateral                                      Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Thomas C. Allen                                         Curtis T. Hill, Jr.
Fort Wayne, Indiana                                     Attorney General of Indiana
                                                        Sierra A. Murray
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Christopher A. Watson,                                  December 6, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1864
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Frances C. Gull,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        02D05-1707-F5-187



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1864 | December 6, 2019                     Page 1 of 5
[1]   Christopher Watson appeals his sentence for dealing in a narcotic drug as a

      level 5 felony and asserts his sentence is inappropriate. We affirm.


                                      Facts and Procedural History

[2]   On February 7, 2017, Watson sold 0.2 grams of heroin to an undercover officer.

      On July 11, 2017, the State charged him with dealing in cocaine or a narcotic

      drug as a level 5 felony. On August 28, 2017, he pled guilty, and the court

      placed him into the drug court diversion program and took the plea under

      advisement. On September 12, 2017, he submitted a diluted drug screen. On

      September 17, 2018, the court ordered him to serve one night in jail as a

      sanction for violating drug court rules. He failed to appear for drug screens on

      October 16, 2017, April 30, 2018, August 22, 2018, and September 12, 2018.


[3]   On May 6, 2019, the State filed a verified petition to terminate Watson’s

      participation in the drug court program and alleged he violated the terms of the

      program by testing positive for codeine on April 16, 2019. On May 31, 2019,

      Watson admitted to the allegation. The court found that Watson violated the

      terms and conditions of the program and revoked his placement in drug court.


[4]   At the sentencing hearing, Watson’s counsel requested a suspended sentence of

      three years. The prosecutor stated that a sentence between that

      recommendation and the probation department’s recommendation of six years

      with three years executed would be warranted, asked for a portion of the

      sentence to be executed and the balance to be suspended, and asked the court




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1864 | December 6, 2019   Page 2 of 5
      “to sentence at least the advisory sentence range.” Transcript Volume II at 11.

      Watson stated:


              I appreciate the opportunity to be on the program. I apologize
              for not successfully completing the program, but remaining at the
              Thirteen Step House would keep me close to my support group
              and my sponsor, who frequents the house, and it will allow me to
              continue in my recovery. I still have my job and I’m more than
              sure that I’m going to go places in that job. They already want
              me to be a shift manager. I have goals and plans that, basically,
              getting me back on my feet and do the right thing and not run or
              anything. I’ve been completely honest with you this entire time
              and I hope that shows. I really just want to get my life back
              together. I have no desire to do drugs or alcohol. I just hope that
              you show mercy.


      Id. at 11.


[5]   The court found Watson guilty citing his guilty plea and remorse as mitigators

      and his criminal record with failed efforts at rehabilitation as an aggravator.

      The court noted that his failed efforts at rehabilitation covered “a period of time

      from 2016 to 2019, where you have two misdemeanor convictions, where you

      were given a short jail sentence with suspended jail and then execute time,

      Caring About People treatment, and then, ultimately, the Drug Court

      Program.” Id. at 12. The court sentenced him to the Department of Correction

      for three years.


                                                  Discussion

[6]   Watson argues that his sentence is inappropriate and that the offense was less

      severe than most level 5 felonies because the quantity involved was 0.2 grams of
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1864 | December 6, 2019   Page 3 of 5
      heroin. He also asserts that he pled guilty, demonstrated remorse, was

      motivated to be involved in treatment, and had been employed. He requests

      that his sentence be modified to three years suspended on the condition that the

      remainder of his sentence be served on probation with services at the Thirteen

      Step House treatment facility.


[7]   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). Ind. Code § 35-50-2-6 provides that a

      person who commits a level 5 felony shall be imprisoned for a fixed term

      between one and six years with the advisory sentence being three years.


[8]   Our review of the nature of the offense reveals that Watson sold heroin to an

      undercover officer. Our review of the character of the offender reveals that he

      pled guilty as charged and was placed in the drug court diversion program until

      he tested positive for codeine. He apologized for failing to successfully

      complete the program. He worked for three or four months in 2014 at a

      restaurant, between October 2017 and February 2018 as an apprentice, and

      between April 2018 and September 2018 as a line cook. He has convictions for

      conversion as a class A misdemeanor in 2016 and possession of paraphernalia

      as a class C misdemeanor in 2017. The presentence investigation report (the

      “PSI”) indicates that he admitted he began using marijuana at age sixteen and

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1864 | December 6, 2019   Page 4 of 5
       used it three times per week until he was twenty-nine years old; used cocaine

       when he was twenty years old until he was twenty-three years old;

       experimented with ecstasy twice when he was twenty-three or twenty-four years

       old; and used heroin daily from age twenty-seven until age twenty-nine.


[9]    The PSI indicates that Watson reported participating in substance abuse

       treatment at Park Center in 2018, at Critical Thinking Errors in 2019, through

       the support groups provided by the halfway house where he resided since June

       2017 until his present incarceration, and at Alcoholics Anonymous, Cocaine

       Anonymous, and Heroin Anonymous four or five times per week since June

       2017 until his present incarceration. It indicates that he denied ever using

       codeine but also stated: “I accept what happened. I know that I did wrong and

       that is why all of this is happening.” Appellant’s Appendix Volume II at 58. It

       also indicates that Watson began the Allen Superior Court Drug Program on

       August 28, 2017, submitted a diluted drug screen on September 12, 2017, and

       failed to appear for four drug screens between October 2017 and September

       2018. The PSI also states that his overall risk assessment score using the

       Indiana risk assessment system places him in the moderate risk category to

       reoffend. After due consideration, we conclude that Watson has not sustained

       his burden of establishing that the advisory sentence is inappropriate.


[10]   For the foregoing reasons, we affirm Watson’s sentence.


[11]   Affirmed.


       Baker, J., and Riley, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1864 | December 6, 2019   Page 5 of 5
