MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 26 2018, 9:14 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 Donald C. Swanson, Jr. Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana Fort Wayne, Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brett T. Rhodes, December 26, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2038 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge Trial Court Cause No. 02D05-1707-F6-853
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2038 | December 26, 2018 Page 1 of 8 Case Summary and Issue [1] Brett Rhodes pleaded guilty to one count of unlawful possession of a syringe, a
Level 6 felony, but his sentencing was delayed while he participated in the
Allen County Drug Court Diversion Program. Upon being unsuccessfully
terminated from Drug Court, Rhodes was sentenced to two years in the Indiana
Department of Correction, with the possibility of serving his time on work
release if eligible. Rhodes now appeals his sentence, raising one issue for our
review: whether his two-year sentence is inappropriate in light of the nature of
his offense and his character. Concluding his sentence is not inappropriate, we
affirm.
Facts and Procedural History [2] In July 2017, police responded to an anonymous tip that people were smoking
spice in a room at a Fort Wayne hotel. When Rhodes answered the door,
officers could see numerous syringes in plain view around the room. Also
present in the room were two other men and a woman. One of the men was
passed out on the bed. Rhodes admitted to officers that he was a heroin addict
and, when asked if he was in possession of any drugs or weapons, further
admitted that he had a syringe. Two syringes were discovered in Rhodes’ front
pocket.
[3] The State charged Rhodes with one count of unlawful possession of a syringe, a
Level 6 felony. He pleaded guilty to the charge and was placed in the Allen
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2038 | December 26, 2018 Page 2 of 8 County Drug Court Diversion Program on August 14, 2017. In the following
ten months, Rhodes submitted diluted urine screens twice, tested positive for
alcohol twice, tested positive for spice once, tested positive for
methamphetamine once, and failed to appear for a drug screen five times. He
was sanctioned with jail time for being in violation of Drug Court rules on four
occasions. Finally, on June 25, 2108, Rhodes’ placement in the Drug Court
program was revoked.
[4] Rhodes’ sentencing hearing was held on August 2, 2018. Finding Rhodes’
“multi-state criminal record with failed efforts of rehabilitation” to be an
aggravating factor, Transcript, Volume 2 at 8, and his guilty plea and statement
of remorse as mitigating factors, the trial court sentenced him to two years at
the Department of Correction, with the possibility of serving his sentence on
work release if he were to be accepted into the work release program. Rhodes
now challenges both the length and placement of his sentence as inappropriate.
Discussion and Decision I. Standard of Review [5] “The Court 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). “[T]he question under Appellate Rule
7(B) is not whether another sentence is more appropriate; rather, the question is
whether the sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265, Court of Appeals of Indiana | Memorandum Decision 18A-CR-2038 | December 26, 2018 Page 3 of 8 268 (Ind. Ct. App. 2008). In this regard, the “sentence” includes not only the
term of the sentence but also the placement. Fonner v. State, 876 N.E.2d 340,
343 (Ind. Ct. App. 2007) (“The location where a sentence is to be served is an
appropriate focus for application of our review and revise authority.”).
[6] The defendant has the burden to persuade us that the sentence imposed by the
trial court is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007),
clarified on reh’g, 875 N.E.2d 218. Deference to the trial court’s sentencing
decision should prevail unless it can be 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). “The principal role of appellate review
should be to attempt to leaven the outliers . . . not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008).
II. Inappropriate Sentence [7] The nature of the offense refers to a defendant’s actions in comparison with the
elements of the offense. Cannon v. State, 99 N.E.3d 274, 280 (Ind. Ct. App.
2018), trans. denied. The nature of the offense can be analyzed by using the
advisory sentence as a starting point. Anglemyer, 868 N.E.2d at 494.
[8] Rhodes pleaded guilty to one count of Level 6 felony unlawful possession of a
syringe and received two years for his conviction. The sentencing range for a
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2038 | December 26, 2018 Page 4 of 8 Level 6 felony is between six months and two and one-half years with an
advisory sentence of one year. Ind. Code § 35-50-2-7(b). Rhodes contends the
nature of his offense is innocuous because he had no intent to harm or profit
from it and he did not prey on the public or put the public at risk. He also
contends it must be acknowledged that his offense stems from a severe
addiction.
[9] In order to commit “unlawful possession of a syringe,” the defendant must have
the intent to violate the Indiana Legend Drug Act or commit an offense related
to controlled substances. Ind. Code § 16-42-19-18. Rhodes admitted via his
guilty plea that he possessed a syringe with intent to do just that. Based on the
paraphernalia police found in the hotel room,1 many drugs were ingested by the
occupants of the room, so much so that one occupant had passed out.
Although we agree that there was nothing particularly egregious about Rhodes’
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 26 2018, 9:14 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 Donald C. Swanson, Jr. Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana Fort Wayne, Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brett T. Rhodes, December 26, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2038 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge Trial Court Cause No. 02D05-1707-F6-853
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2038 | December 26, 2018 Page 1 of 8 Case Summary and Issue [1] Brett Rhodes pleaded guilty to one count of unlawful possession of a syringe, a
Level 6 felony, but his sentencing was delayed while he participated in the
Allen County Drug Court Diversion Program. Upon being unsuccessfully
terminated from Drug Court, Rhodes was sentenced to two years in the Indiana
Department of Correction, with the possibility of serving his time on work
release if eligible. Rhodes now appeals his sentence, raising one issue for our
review: whether his two-year sentence is inappropriate in light of the nature of
his offense and his character. Concluding his sentence is not inappropriate, we
affirm.
Facts and Procedural History [2] In July 2017, police responded to an anonymous tip that people were smoking
spice in a room at a Fort Wayne hotel. When Rhodes answered the door,
officers could see numerous syringes in plain view around the room. Also
present in the room were two other men and a woman. One of the men was
passed out on the bed. Rhodes admitted to officers that he was a heroin addict
and, when asked if he was in possession of any drugs or weapons, further
admitted that he had a syringe. Two syringes were discovered in Rhodes’ front
pocket.
[3] The State charged Rhodes with one count of unlawful possession of a syringe, a
Level 6 felony. He pleaded guilty to the charge and was placed in the Allen
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2038 | December 26, 2018 Page 2 of 8 County Drug Court Diversion Program on August 14, 2017. In the following
ten months, Rhodes submitted diluted urine screens twice, tested positive for
alcohol twice, tested positive for spice once, tested positive for
methamphetamine once, and failed to appear for a drug screen five times. He
was sanctioned with jail time for being in violation of Drug Court rules on four
occasions. Finally, on June 25, 2108, Rhodes’ placement in the Drug Court
program was revoked.
[4] Rhodes’ sentencing hearing was held on August 2, 2018. Finding Rhodes’
“multi-state criminal record with failed efforts of rehabilitation” to be an
aggravating factor, Transcript, Volume 2 at 8, and his guilty plea and statement
of remorse as mitigating factors, the trial court sentenced him to two years at
the Department of Correction, with the possibility of serving his sentence on
work release if he were to be accepted into the work release program. Rhodes
now challenges both the length and placement of his sentence as inappropriate.
Discussion and Decision I. Standard of Review [5] “The Court 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). “[T]he question under Appellate Rule
7(B) is not whether another sentence is more appropriate; rather, the question is
whether the sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265, Court of Appeals of Indiana | Memorandum Decision 18A-CR-2038 | December 26, 2018 Page 3 of 8 268 (Ind. Ct. App. 2008). In this regard, the “sentence” includes not only the
term of the sentence but also the placement. Fonner v. State, 876 N.E.2d 340,
343 (Ind. Ct. App. 2007) (“The location where a sentence is to be served is an
appropriate focus for application of our review and revise authority.”).
[6] The defendant has the burden to persuade us that the sentence imposed by the
trial court is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007),
clarified on reh’g, 875 N.E.2d 218. Deference to the trial court’s sentencing
decision should prevail unless it can be 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). “The principal role of appellate review
should be to attempt to leaven the outliers . . . not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008).
II. Inappropriate Sentence [7] The nature of the offense refers to a defendant’s actions in comparison with the
elements of the offense. Cannon v. State, 99 N.E.3d 274, 280 (Ind. Ct. App.
2018), trans. denied. The nature of the offense can be analyzed by using the
advisory sentence as a starting point. Anglemyer, 868 N.E.2d at 494.
[8] Rhodes pleaded guilty to one count of Level 6 felony unlawful possession of a
syringe and received two years for his conviction. The sentencing range for a
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2038 | December 26, 2018 Page 4 of 8 Level 6 felony is between six months and two and one-half years with an
advisory sentence of one year. Ind. Code § 35-50-2-7(b). Rhodes contends the
nature of his offense is innocuous because he had no intent to harm or profit
from it and he did not prey on the public or put the public at risk. He also
contends it must be acknowledged that his offense stems from a severe
addiction.
[9] In order to commit “unlawful possession of a syringe,” the defendant must have
the intent to violate the Indiana Legend Drug Act or commit an offense related
to controlled substances. Ind. Code § 16-42-19-18. Rhodes admitted via his
guilty plea that he possessed a syringe with intent to do just that. Based on the
paraphernalia police found in the hotel room,1 many drugs were ingested by the
occupants of the room, so much so that one occupant had passed out.
Although we agree that there was nothing particularly egregious about Rhodes’
offense in that it was primarily harmful to himself, we do note that his conduct,
along with the conduct of several other people, was bothersome enough to
another guest of the hotel that the guest felt compelled to call the police and
advised them “it was causing her problems.” Appellant’s App., Vol. 2 at 32.
[10] The character of the offender refers to “general sentencing considerations and
the relevant aggravating and mitigating circumstances.” Cannon, 99 N.E.3d at
1 The probable cause affidavit indicates officers “observed numerous used needles . . . in various places all over the room[,]” as well as “spoons and other items associated with using and ingesting narcotics.” Appellant’s Appendix, Volume 2 at 32.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2038 | December 26, 2018 Page 5 of 8 280. “We assess the trial court’s recognition or non-recognition of aggravators
and mitigators as an initial guide to determining whether the sentence imposed
was inappropriate.” Stephenson v. State, 53 N.E.3d 557, 561 (Ind. Ct. App.
2016). When evaluating the character of the offender, we consider his or her
criminal history a relevant factor, Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct.
App. 2017), trans. denied, and “[t]he significance of [a defendant’s] criminal
history varies based on the gravity, nature, and number of prior offenses in
relation to the current offense[,]” Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct.
App. 2013).
[11] As noted by the trial court, Rhodes has a criminal history in three different
states, and currently has an outstanding warrant in California. He has no
juvenile record, but from 2010 to 2018, he amassed ten misdemeanor and three
felony convictions, including drug and alcohol offenses, one of which was a
prior conviction of unlawful possession of a syringe, and several offenses
against property, including theft and conversion. As described by the trial
court, he has been given “short jail sentences, longer jail sentences, probation,
community service, [a] Treatment Program, the Work Release Program, and
then the Drug Court Program . . . and probation [has been] revoked twice.”
Tr., Vol. 2 at 9. Again, Rhodes asserts that “[w]hatever character flaws that
[he] possesses are the manifestations of a disease he is attempting to fight.”
Appellant’s Brief at 11. We observe that Rhodes’ drug use has gotten
progressively worse, beginning with alcohol use in his teens and escalating from
regular use of marijuana to spice to cocaine to methamphetamine and finally
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2038 | December 26, 2018 Page 6 of 8 heroin. Even while participating in the Drug Court program, he was unable to
abstain from the use of drugs and alcohol. He is classified in the high-risk
category to reoffend. Rhodes has not shown that he has “substantial virtuous
traits or persistent examples of good character.” Stephenson, 29 N.E.3d at 122.
[12] Rhodes contends that the trial court’s order that he be committed to the
Department of Correction fails to provide him with any rehabilitative treatment
and asserts an appropriate sentence would have been the advisory sentence of
one year suspended to probation through which he could access the tools and
resources essential to treat his substance abuse problem. We have stated that it
is “quite difficult for a defendant to prevail on a claim that the placement of his
or her sentence is inappropriate[,]” because “trial courts know the feasibility of
alternative placements in particular counties or communities.” Fonner, 876
N.E.2d at 343. And, as previously stated, the question is not whether another
sentence would be more appropriate. King, 894 N.E.2d at 268.
[13] Considering Rhodes’ criminal history, history of substance abuse, and his
inability to stay clean in less-restrictive environments, we cannot say that a two-
year sentence with the possibility of serving that sentence on work release is
inappropriate, especially given Rhodes’ inability to successfully complete the
Drug Court program in this case. Although the nature of Rhodes’ offense is
neutral, his character as exemplified by his criminal history supports the
sentence of two years’ incarceration. Rhodes has failed to meet his burden of
showing that his sentence is inappropriate.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2038 | December 26, 2018 Page 7 of 8 Conclusion [14] Rhodes’ sentence is not inappropriate in light of the nature of his offense and
his character. Accordingly, his sentence is affirmed.
[15] Affirmed.
Riley, J., and Kirsch, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2038 | December 26, 2018 Page 8 of 8