                                                                  FILED
MEMORANDUM DECISION                                           Jun 27 2016, 5:48 am

                                                                  CLERK
Pursuant to Ind. Appellate Rule 65(D),                        Indiana Supreme Court
                                                                 Court of Appeals
this Memorandum Decision shall not be                              and Tax Court


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
Gregory L. Fumarolo                                      Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeremiah A. Henley,                                      June 27, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A04-1601-CR-174
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D05-1507-F6-614



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A04-1601-CR-174 | June 27, 2016    Page 1 of 6
[1]   Jeremiah A. Henley appeals his sentence for possession of cocaine or narcotic

      drug as a level 6 felony, possession of synthetic drug or synthetic lookalike

      substance as a class A misdemeanor, and possession of paraphernalia as a class

      C misdemeanor. Henley raises one issue which we revise and restate as

      whether his sentence is inappropriate in light of the nature of the offenses and

      his character. We affirm.


                                      Facts and Procedural History

[2]   On July 2, 2015, at approximately 3:30 p.m., Fort Wayne Police Officer Mark

      Bell was in the area of Freimann Square, a park in Fort Wayne, when he

      observed Henley near a large fountain in the park. Officer Bell recognized him

      from previous investigations, he learned that Henley had an active warrant out

      for his arrest, and he arrested him on the outstanding warrant. In conducting a

      search incident to arrest, Officer Bell recovered two pipes containing burned

      residue from Henley’s coat. He also recovered three clear plastic bags

      containing a green plant material that Henley identified as “spice” or synthetic

      marijuana, a brown, hand-rolled cigarette containing a green plant material,

      and ten capsule-shaped pills later identified as acetaminophen and hydrocodone

      bitartrate, a schedule II controlled substance, with an aggregate weight of 4.3

      grams. Henley claimed to have a valid prescription for the capsules, but he

      never produced one.


[3]   On July 9, 2015, the State charged Henley with Count I, possession of cocaine

      or narcotic drug (hydrocodone) as a level 6 felony; Count II, possession of a

      synthetic drug or synthetic lookalike substance as a class A misdemeanor; and
      Court of Appeals of Indiana | Memorandum Decision 02A04-1601-CR-174 | June 27, 2016   Page 2 of 6
      Count III, possession of paraphernalia as a class C misdemeanor. On July 27,

      2015, Henley, the State, and the trial court signed a Drug Court / Problem-

      Solving Court Participation Agreement (the “Participation Agreement”)

      whereby Henley would plead guilty to all charges, the pleas would be taken

      under advisement pending his successful completion of the Drug Court

      Program, and, upon his successful completion, his plea would be vacated and

      the case dismissed. The Participation Agreement also stated that if Henley

      failed to successfully complete the Drug Court Program, he could be terminated

      from the program and the trial court could enter judgment on the pleas of guilty

      and sentence Henley accordingly.


[4]   On September 8, 2015, the court found Henley in violation of the Drug Court

      Program rules, but it decided to return him to the program on September 15,

      2015. Then, on September 18, 2015, Henley failed to appear for a hearing and

      the trial court issued a warrant for his arrest. On November 16, 2015, the State

      filed a verified petition to terminate Henley’s drug court participation, that

      same day he admitted to the violation, and the court terminated his

      participation in the Drug Court Program.


[5]   On December 17, 2015, the court held the sentencing hearing at which Henley

      admitted that he was terminated from Thirteen Step House and Freedom

      House drug programs and failed to appear at the scheduled court hearing on

      September 21, 2015. The court sentenced Henley to two years executed for

      Count I, one year executed for Count II, and sixty days executed for Count III,

      and it ordered that the sentences be served concurrently but consecutively to his

      Court of Appeals of Indiana | Memorandum Decision 02A04-1601-CR-174 | June 27, 2016   Page 3 of 6
      sentence in another case. Thus, Henley was ordered to serve an aggregate two-

      year sentence in the Department of Correction.


                                                  Discussion

[6]   The issue is whether Henley’s sentence is inappropriate in light of the nature of

      the offenses and his character. Indiana Appellate Rule 7(B) provides that this

      Court “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).

      Relief is available if, after due consideration of the trial court’s sentencing

      decision, this Court finds that in our independent judgment, the sentence is

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

      offender. Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015). “[S]entencing is

      principally a discretionary function in which the trial court’s judgment should

      receive considerable deference.” Id. (quoting Cardwell v. State, 895 N.E.2d 1219,

      1222 (Ind. 2008)). “[A]ppellate review should focus on the forest—the

      aggregate sentence—rather than the trees—consecutive or concurrent, number

      of counts, or length of the sentence on any individual count.” Cardwell, 895

      N.E.2d at 1225. “[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



      Court of Appeals of Indiana | Memorandum Decision 02A04-1601-CR-174 | June 27, 2016   Page 4 of 6
      in a given case.” Hines, 30 N.E.3d at 1225 (quoting Cardwell, 895 N.E.2d at

      1224).


[7]   Henley argues that he accepted his responsibility by admitting his guilt as well

      as the drug court violations. He asserts that his actions were nonviolent and

      that there was no damage done to any third parties. His position is that,

      although his “criminal history is extensive,” his felony offenses are nonviolent

      in nature and only three of his twelve misdemeanor offenses involved violence.

      Appellant’s Brief at 12. He requests that we revise his sentence to an aggregate

      term of one and one-half years, including one year suspended and one year of

      probation.


[8]   Our review of the nature of the offense reveals that Henley was apprehended in

      a public park in possession of multiple illegal substances and paraphernalia.

      Our review of the character of the offender reveals that he pled guilty pursuant

      to the Participation Agreement and was afforded the opportunity to participate

      in the Drug Court Program, but he was unsuccessful in completing the

      program. The presentence investigation report (“PSI”) reveals that he has an

      extensive criminal history. As a juvenile, Henley was found delinquent for

      truancy and was reprimanded and released for being a runaway in 1993. In

      1994, he was found delinquent for committing theft and was placed on

      probation. As an adult, he was convicted of minor in consumption of alcohol

      in 1996, theft as a class D felony in 1997, receiving stolen auto parts as a class D

      felony in 1998, “Never Receive License” in 2002, operating while suspended in

      2003, possession of marijuana in 2004, operating while suspended in 2005,

      Court of Appeals of Indiana | Memorandum Decision 02A04-1601-CR-174 | June 27, 2016   Page 5 of 6
       operating while suspended in 2006, possession of marijuana as a class D felony

       in 2006, and driving while suspended in 2010. Appellant’s Appendix at 63.

       Also, in 2012, he was convicted of battery resulting in bodily injury,

       interference with reporting a crime, criminal mischief, and domestic battery. In

       2015, he was convicted of domestic battery and was ordered to serve 365 days

       in the Allen County Jail consecutive to his sentence in this case. In his dealings

       with the criminal justice system, Henley has had his suspended sentences

       revoked six times and his parole revoked once.


[9]    After due consideration, we conclude that Henley has not sustained his burden

       of establishing that his sentence of two years, following the termination of his

       participation in the Drug Court Program, is inappropriate in light of the nature

       of the offenses and his character.


                                                   Conclusion

[10]   For the foregoing reasons, we affirm Henley’s sentence for possession of

       cocaine or narcotic drug as a level 6 felony, possession of synthetic drug or

       synthetic lookalike substance as a class A misdemeanor, and possession of

       paraphernalia as a class A misdemeanor.


[11]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1601-CR-174 | June 27, 2016   Page 6 of 6
