MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                              Jul 31 2018, 10:05 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Mark Small                                                Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Jesse R. Drum
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Donald Hoke,                                              July 31, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-500
        v.                                                Appeal from the Montgomery
                                                          Superior Court
State of Indiana,                                         The Honorable Heather Barajas,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          54D01-1708-F6-2312



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-500 | July 31, 2018                    Page 1 of 7
[1]   Donald Hoke appeals his sentence for identity deception as a level 6 felony,

      possession of methamphetamine as a level 6 felony, and for being an habitual

      offender. Hoke 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 August 8, 2017, Hoke knowingly obtained, possessed, transferred, or used

      the identifying information of Richard Hoke without his consent to assume the

      other person’s identity and/or profess to be another person. That same day,

      Hoke knowingly possessed pure or adulterated methamphetamine without a

      prescription or order of a practitioner acting in the scope of his professional

      practice.


[3]   On August 14, 2017, the State charged Hoke with: Count I, identity deception

      as a level 6 felony; Count II, resisting law enforcement as a level 6 felony;

      Count III, possession of methamphetamine as a level 6 felony; Count IV,

      possession of marijuana as a class B misdemeanor; and Count V, operating

      when never licensed as a class C misdemeanor. The State also alleged that

      Hoke was an habitual offender.


[4]   On February 19, 2018, the parties filed a “Recommendation of Plea

      Agreement” in which Hoke agreed to plead guilty to Count I, identity

      deception as a level 6 felony, and Count II, resisting law enforcement as a level




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-500 | July 31, 2018   Page 2 of 7
      6 felony, and admit to being an habitual offender. The State agreed to dismiss

      the remaining counts. The document states:


              Agreement as to sentence: Count I: Two (2) years in the Indiana
              Department of Corrections suspended to two (2) years formal
              probation. Count II: Two (2) years in the Indiana Department of
              Corrections executed. Habitual Offender Affidavit: Two (2)
              years in the Indiana Department of Corrections executed.
              Sentences to run consecutive to one another.


      Appellant’s Appendix Volume II at 13.


[5]   On March 6, 2018, the court held a hearing at which it advised Hoke of his

      rights. The court informed him that the agreement on sentencing is that he

      would receive two years in the Department of Correction for Count I suspended

      to two years of formal probation, two years executed for Count II, two years for

      the habitual offender, and that the sentences would run consecutive to one

      another. During the hearing, the parties agreed to change the plea agreement to

      substitute Count III, possession of methamphetamine as a level 6 felony, as the

      charge to which Hoke was pleading guilty instead of Count II, resisting law

      enforcement as a level 6 felony. Hoke pled guilty pursuant to the amended plea

      agreement. The court accepted the plea agreement and entered judgment

      accordingly.


[6]   The court then turned to sentencing. On direct examination, Hoke’s counsel

      asked him what steps he had taken to attempt to address any issues he has in his

      life with following the law, and Hoke testified that he tried “to get on at a

      rehab, which I was accepted at the House of Hope in Brazil, but I was told I
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-500 | July 31, 2018   Page 3 of 7
couldn’t go there, I guess.” Transcript Volume II at 19. He testified that “as

soon as my wife died I’ve gotten into drugs and it’s not a way to go.” Id. He

also stated: “Now, I realize that I do and I’m still going to go to rehab even

when I get out of prison and if the Court has to sentence me to the rest of the

five months that I have left to do, I’d like to do it in DOC, not in this county

because I definitely want to get out of this city and out of this county and never

ever to return here again.” Id. The court later questioned Hoke about his

mention of five months and asked if he understood that he was pleading to four

years of executed time and he would have two actual years to serve. Hoke

answered: “No. I was told I had seven months to do and I’ve already done

seven months as of yesterday and I’ve got five more months to do. That’s what

I was told. And then two years probation.” Id. at 21. The following exchange

then occurred:


        THE COURT: Well, when I read to you the terms of your plea,
        did you understand them? You told me that you did.

        [Hoke]: Consecutive means run together, right?

        THE COURT: No, that’s concurrent.

        [Hoke]: What did you tell me when I signed the plea bargain?

        [Hoke’s Counsel]: That you had two years on one charge, two
        years on the next charge, to run –

        [Hoke]: And I had five months to do.

        [Hoke’s Counsel]: No. They were going to run consecutive.
        They were subject to Class A credit. Each term was going to
        have one year, actual.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-500 | July 31, 2018   Page 4 of 7
              [Hoke]: No. No. I’d rather have a different lawyer. Let’s stop
              this right now. If I can’t get rehab and nothing like that, then no.
              We’ll just take it to a jury trial.


      Id. at 21. The court explained to Hoke that he had already pled guilty and it

      had found that he understood the terms of his plea and the possible penalties.


[7]   The court sentenced Hoke to two years suspended to probation for Count I,

      identity deception as a level 6 felony, two years executed for Count III,

      possession of methamphetamine as a level 6 felony, and two years for being an

      habitual offender and attached the habitual offender enhancement to Count III.

      The court ordered that the sentences shall run consecutive to each other and

      that Counts II, IV, and V be dismissed.


                                                   Discussion

[8]   The issue is whether Hoke’s aggregate sentence is inappropriate in light of the

      nature of the offense and his character. Hoke argues that his wife died prior to

      his resumption of drug use and that he wanted to obtain counseling. The State

      argues that he waived his right to appeal his sentence because he pled guilty

      with a plea agreement that fixed his sentence.


[9]   The Indiana Supreme Court has held that, “[w]hen a defendant pleads guilty

      and agrees to a specific sentence, he waives his right to challenge the propriety

      of his sentence.” Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008) (citing Hole v.

      State, 851 N.E.2d 302, 304 (Ind. 2006)).




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-500 | July 31, 2018   Page 5 of 7
[10]   Here, the plea agreement provided that the parties agreed to a specific sentence.

       Hoke received the sentence for which he bargained. Accordingly, his sentence

       is not available for review under Ind. Appellate Rule 7(B). See Hole, 851 N.E.2d

       at 304 (“The parties agreed that Hole would serve a ‘ten (10) year sentence.’

       And Hole received the precise sentence for which he bargained. Except for the

       location where his sentence is to be served, which Hole does not challenge, his

       sentence is not available for Rule 7(B) review.”) (citation omitted).1


[11]   Even assuming that Hoke may assert that his sentence is inappropriate, we

       cannot say reversal is warranted. 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).


[12]   Our review of the nature of the offenses reveals that Hoke knowingly obtained,

       possessed, transferred, or used the identifying information of Richard Hoke

       without his consent to assume the other person’s identity and/or profess to be

       another person. That same day, Hoke knowingly possessed pure or adulterated




       1
        Hoke notes that he stated he was not advised his sentence would be as long as it was and that “[a]ny
       challenge he would make as to that understanding would more properly be raised in post-conviction relief as
       an inadequate record was made for such a claim.” Appellant’s Brief at 11.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-500 | July 31, 2018                     Page 6 of 7
       methamphetamine without a prescription or order of a practitioner acting in the

       scope of his professional practice.


[13]   Our review of the character of the offender reveals that Hoke pled guilty and the

       State dismissed Count II, resisting law enforcement as a level 6 felony, Count

       IV, possession of marijuana as a class B misdemeanor; and Count V, operating

       when never licensed as a class C misdemeanor. Hoke was convicted of

       resisting law enforcement as a class A misdemeanor in 1990; two counts of

       operating while intoxicated while endangering a person and battery resulting in

       bodily injury as class A misdemeanors in 1991; two counts of operating while

       intoxicated while endangering a person in 1992; and resisting law enforcement

       as a class A misdemeanor and theft as a class D felony in 2013.


[14]   After due consideration, we conclude that Hoke has not sustained his burden of

       establishing that his sentence is inappropriate in light of the nature of the

       offenses and his character.


                                                    Conclusion

[15]   For the foregoing reasons, we affirm Hoke’s sentence.


[16]   Affirmed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-500 | July 31, 2018   Page 7 of 7
