MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                           FILED
regarded as precedent or cited before any                   Jul 03 2017, 8:58 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
Alexander L. Hoover                                      Curtis T. Hill, Jr.
Nappanee, Indiana                                        Attorney General of Indiana

                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Stephen J. Ullery,                                       July 3, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A05-1702-CR-350
        v.                                               Appeal from the Elkhart Circuit
                                                         Court
State of Indiana,                                        The Honorable Michael A.
Appellee-Plaintiff                                       Christofeno, Judge
                                                         Trial Court Cause No.
                                                         20C01-1512-F5-279



Altice, Judge.


                                          Case Summary


Court of Appeals of Indiana | Memorandum Decision 20A05-1702-CR-350 | July 3, 2017    Page 1 of 5
[1]   Stephen J. Ullery appeals the sentence imposed following his plea of guilty to

      Level 5 felony possession of cocaine or a narcotic drug, Level 5 felony

      possession of methamphetamine, Level 6 felony unlawful possession of a

      syringe, Class A misdemeanor operating with a suspended license, and Class C

      felony possession of marijuana. On appeal, Ullery argues that his aggregate

      sentence of four years executed in the Department of Correction (DOC) is

      inappropriate.


[2]   We affirm.


                                       Facts & Procedural History


[3]   At approximately 3 a.m. on December 4, 2016, Ullery was pulled over for

      driving fifty-four miles per hour in a thirty-five-mile-per-hour zone. Ullery’s

      seven-week-old son was in a car seat in the front passenger seat. During the

      traffic stop, it was discovered that Ullery’s license was suspended and the officer

      detected the odor of burnt marijuana emanating from Ullery’s jacket and

      clothing. Ullery’s girlfriend arrived to retrieve their infant son, and when she

      removed the car seat, police discovered a broken sunglasses case underneath it.

      The case contained a used syringe, a spoon, a straw, and a bag of

      methamphetamine. Upon searching the vehicle, police also discovered a bag of

      heroin on the front passenger side floorboard. Additionally, Ullery admitted to

      police that he had smoked marijuana earlier that day.


[4]   As a result of these events, the State charged Ullery as follows: Count I, Level

      5 Felony possession of cocaine or a narcotic drug; Count II, Level 5 felony

      Court of Appeals of Indiana | Memorandum Decision 20A05-1702-CR-350 | July 3, 2017   Page 2 of 5
      possession of methamphetamine; Count III, Level 6 felony unlawful possession

      of a syringe; Count IV, Class A misdemeanor operating with a suspended

      license; and Count V, Class C misdemeanor possession of paraphernalia.

      Ullery pled guilty as charged and received an aggregate sentence of four years

      executed in the DOC. Ullery now appeals.


                                          Discussion & Decision


[5]   On appeal, Ullery argues that his sentence is inappropriate in light of the nature

      of the offenses and his character. Article 7, section 4 of the Indiana

      Constitution grants our Supreme Court the power to review and revise criminal

      sentences. See Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014), cert. denied, 135

      S.Ct. 978 (2015). Pursuant to Ind. Appellate Rule 7, the Supreme Court

      authorized this court to perform the same task. Cardwell v. State, 895 N.E.2d

      1219, 1224 (Ind. 2008). Per Ind. App. R. 7(B), we may revise a sentence “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.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R.

      7). “Sentencing review under Appellate Rule 7(B) is very deferential to the trial

      court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “Such deference

      should prevail unless overcome by compelling evidence portraying in a positive

      light the nature of the offense (such as accompanied by restraint, regard, and

      lack of brutality) and the defendant’s character (such as substantial virtuous

      traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d

      111, 122 (Ind. 2015).

      Court of Appeals of Indiana | Memorandum Decision 20A05-1702-CR-350 | July 3, 2017   Page 3 of 5
[6]   Ullery received an aggregate sentence of four years for committing two Level 5

      felonies, a Level 6 felony, a Class A misdemeanor, and a Class C misdemeanor.

      Ullery does not challenge the length of his sentence. Rather, he challenges his

      placement in the DOC, arguing that he should instead have been placed on

      home detention or, alternatively, in the Purposeful Incarceration Program.

      Although the location where a sentence is to be served is subject to review

      under Ind. App. R. 7(B), “it will be quite difficult for a defendant to prevail on a

      claim that the placement of his sentence is inappropriate.” King v. State, 894

      N.E.2d 265, 267 (Ind. Ct. App. 2008). This is so because a defendant

      challenging the placement of his sentence must convince us not that another

      placement would be more appropriate, but that his given placement is

      inappropriate. Id. at 268.


[7]   We are not convinced that Ullery’s placement in the DOC rather than home

      detention or Purposeful Incarceration is inappropriate. Considering the nature

      of the offense, the record reveals that Ullery had his infant son in the car with

      him when he was pulled over at approximately 3 a.m. for exceeding the posted

      speed limit by nearly twenty miles per hour. Ullery admitted that he had been

      smoking marijuana that day, and police discovered heroin on the floorboard in

      front of the child and methamphetamine and drug paraphernalia, including a

      used syringe, under the child’s car seat. Nothing about the nature of the offense

      suggests that placement in the DOC is inappropriate.


[8]   We reach the same conclusion with respect to Ullery’s character. Ullery’s

      criminal history includes convictions for Class C felony child molesting and

      Court of Appeals of Indiana | Memorandum Decision 20A05-1702-CR-350 | July 3, 2017   Page 4 of 5
       Class A misdemeanor possession of marijuana. Ullery also has a very lengthy

       history of traffic infractions and two prior probation violations. Moreover,

       Ullery failed to appear on two separate occasions in this case, and he was

       arrested for new offenses while on pretrial release. In other words, Ullery has

       not fared well when offered alternatives to incarceration. As for Ullery’s

       argument that he is need of treatment for his substance abuse problem, we note

       that he has received treatment in the past but nevertheless continued to abuse

       drugs. Finally, although Ullery has professed a desire to be a better father, the

       record shows that he has consistently placed his desire for drugs ahead of his

       son’s welfare. Ullery’s placement in the DOC was not inappropriate.


[9]    Judgment affirmed.


[10]   Kirsch, J. and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A05-1702-CR-350 | July 3, 2017   Page 5 of 5
