Christopher Bell, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 19, 2020
• Docket: 20A-CR-314
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 19 2020, 8:55 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David L. Joley Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana

George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Christopher Bell, Jr., August 19, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-314 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff Judge The Honorable Wendy W. Davis, Judge The Honorable Samuel E. Keirns, Judge Trial Court Cause No. 02D05-1906-F6-761 02D05-1809-F6-1126

Court of Appeals of Indiana | Memorandum Decision 20A-CR-314 | August 19, 2020 Page 1 of 11 May, Judge.

[1] Christopher Bell Jr. brings this consolidated appeal following his conviction of

and sentence for Level 6 felony possession of a narcotic drug, 1 and the

revocation of his probation under a separate cause number based on his

commission of that crime. Specifically, Bell argues: (1) his sentence for the drug

possession conviction is inappropriate given the nature of the offense and his

character, and (2) the court abused its discretion when it revoked his suspended

sentence for a prior conviction of Level 6 resisting law enforcement while

operating a motor vehicle. 2 We affirm.

Facts and Procedural History [2] On September 15, 2018, Detective Wilkins of the Fort Wayne Police

Department observed a gray vehicle being driven by a driver known to the

detective as having a suspended driver’s license. Detective Wilkins activated

his lights and followed the vehicle to initiate a traffic stop, however the vehicle

resisted police authority by accelerating to a speed up to eighty miles-per-hour

while disregarding stop signs and traffic control devices. (App. Vol. II at 38.)

After a few minutes of pursuit, the vehicle slowed to a stop, and Bell exited the

vehicle with his hands in the air. Bell was taken into custody, but Detective

Wilkins also noticed a green plant like substance sitting on the front passenger

1 Ind. Code § 35-48-4-6(a). 2 Ind. Code § 35-44.1-3-1(a).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-314 | August 19, 2020 Page 2 of 11 seat. The substance was later identified as marijuana, and it weighed less than

one gram. On September 20, 2018, the State charged Bell with Level 6 felony

resisting law enforcement while operating a motor vehicle. Bell agreed to plead

guilty as part of a plea arrangement, and on December 13, 2018, the trial court

sentenced Bell to an eighteen-month term, with one year suspended to

probation.

[3] The State filed a petition to revoke Bell’s probation on May 31, 2019, which it

amended on June 20, 2019. The petition alleged that Bell tested positive for

alcohol and cocaine use on May 3, 14, and 28 of 2019, did not report to

supervision, was unable to be contacted, did not maintain full employment, and

did not complete substance abuse counseling. Then, on June 21, 2019, officers

arrested Bell on a warrant for violation of probation and, while cataloguing

Bell’s property, found a “white piece of paper with a blue/grey substance

inside.” (App. Vol. II at 36.) That substance was later identified as having the

presence of fentanyl weighing 0.1 grams. Consequently, Bell was charged with

Level 6 felony possession of a narcotic drug.

[4] On July 1, 2019, a second petition to revoke Bell’s probation was filed. On

August 12, 2019, Bell pled guilty to the drug possession charge, but entered into

an agreement that stipulated dismissal of his case upon successful completion of

the Allen County Drug Court Program. The agreement also provided that

upon successful completion of the drug court program, Bell would be

discharged satisfactorily from probation for his previous resisting law

enforcement conviction.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-314 | August 19, 2020 Page 3 of 11 [5] On December 16, 2019, the State filed a third amended petition to revoke Bell’s

probation in conjunction with a petition seeking termination of Bell’s

participation in the Drug Court Program. The third petition to revoke

probation cited a new allegation, Bell’s failure to complete the drug court

program, and reiterated previous allegations: Bell did not maintain good

behavior and committed a new crime while on probation, he tested positive for

cocaine use on various separate occasions, he tested positive for alcohol, he did

not report for supervision as instructed, he did not maintain full-time

employment, and he did not attend or complete substance abuse counseling as

instructed. The petition to terminate drug court participation alleged that Bell

violated the terms and conditions of the Drug Court Program based on his

unsuccessful discharge from Road to Recovery on November 24, 2019; his

testing positive for cocaine and marijuana use on November 18, 2019; his

failing to appear in court on November 25, 2019; and his receiving a citation for

driving while suspended and failing to use a safety belt.

[6] Bell admitted the allegations in both petitions during a compliance hearing on

December 16, 2019, and on January 14, 2020, the trial court sentenced Bell to

two years imprisonment for his Level 6 felony possession conviction. At the

sentencing hearing the court identified two aggravating factors: Bell’s criminal

record, which contained multiple failed efforts at rehabilitation, and Bell being

on probation when he committed the offense. The trial court noted that Bell’s

adult criminal record spanned ten years, from 2009 to 2019, and that Bell had

three prior felony convictions with a variety of sanctions such as short jail

Court of Appeals of Indiana | Memorandum Decision 20A-CR-314 | August 19, 2020 Page 4 of 11 sentences, probation, time in the Department of Correction (“DOC”) time in

the Community Control Program through Community Corrections, the

Community Transition Program, parole, and the Drug Court Program. (Tr.

Vol. II at 52-53.) As mitigating factors, the court credited Bell’s expression of

remorse and his guilty plea.

[7] In addition to the sentence ordered for the possession conviction, the trial court

revoked the suspended one-year sentence from Bell’s resisting law enforcement

conviction and ordered that year served in the DOC. The sentences were

ordered to run consecutively. Bell filed separate Notices of Appeal from the

sentencing and the probation revocation orders, and we granted Bell’s motion

to consolidate the appeals.

Discussion and Decision 1. Inappropriate Sentence [8] We will reverse a sentence as inappropriate only if we determine Bell’s sentence

is inappropriate in light of both the nature of his offense and his character. See

Ind. Appellate Rule 7(B) (“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.”). The nature of the offense analysis compares the

defendant’s actions with the required showing to sustain a conviction under the

charged offense, Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008), while the

character of the offender analysis permits broader consideration of a

Court of Appeals of Indiana | Memorandum Decision 20A-CR-314 | August 19, 2020 Page 5 of 11 defendant’s character. Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App.

2007).

[9] Ultimately, our determination of appropriateness “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 in a given case.” Cardwell,

895 N.E.2d at 1224. The task at hand is not to evaluate whether another

sentence is more appropriate, but rather whether the sentence imposed is

inappropriate. Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans.

denied. The defendant ultimately bears the burden of demonstrating the

inappropriateness of the sentence. Patterson v. State, 909 N.E.2d 1058, 1063

(Ind. Ct. App. 2009).

[10] When considering the nature of the offense, the advisory sentence is the starting

point to determine the appropriateness of a sentence. Anglemyer v. State, 868

N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The

advisory sentence for a Level 6 felony is one year, with a sentencing range

between six months and two-and-a-half years. Ind. Code § 35-50-2-7. For

Bell’s Level 6 felony possession conviction, the trial court imposed a two-year

sentence.

[11] One factor we consider when determining the appropriateness of a deviation

from the advisory sentence is whether there is anything more or less egregious

about the offense committed by the defendant that makes it different from the

“typical” offense accounted for by the legislature when it set the advisory

sentence. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 2008), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-314 | August 19, 2020 Page 6 of 11 While not egregious in and of itself, we hold the nature of Bell’s Level 6 felony

possession of a narcotic drug offense was worse than the “typical” possession

offense because Bell was already on probation for another crime when he

committed the offense. See Barber v. State, 863 N.E.2d 1199, 1208 (Ind. Ct.

App. 2007) (the commission of an offense while on probation is a “significant

aggravator”), trans. denied.

[12] When considering the character of the offender, one relevant fact is the

defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.

App. 2007). Although the extent to which a defendant’s criminal history may

be used to guide an appropriate sentence “varies based on the gravity, nature,

and number of prior offenses in relation to the current offense,” repeated

contacts with the criminal justice system reflect poorly on the defendant’s

character, because such contacts suggest the defendant “has not been deterred

[from further criminal behavior] even after having been subjected to the police

authority of the State.” Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005). See

Speer v. State, 995 N.E.2d 1, 14 (Ind. Ct. App. 2013) (sentences higher than the

advisory not inappropriate based on defendant’s extensive criminal history for

similar offenses), trans. denied. In its sentencing hearing, the trial court noted

that Bell had been given opportunities to serve his sentences through probation

or participation in rehabilitation programs, but Bell continued to perform

criminal acts and had not improved his behavior. Additionally, Bell failed to

take advantage of the opportunity to participate in drug court, which would

have resulted in complete dismissal of his case upon successful completion.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-314 | August 19, 2020 Page 7 of 11 The petitions to revoke Bell’s probation and the petition to terminate Bell’s drug

court participation all referenced Bell’s continued use of illegal drugs, despite

his having been provided substance abuse treatment and despite the explicit

requirements to not engage in drug related offenses. Accordingly, we cannot

say Bell’s sentence in excess of the advisory sentence for the possession

conviction is inappropriate. See Littrell v. State, 15 N.E.3d 646, 652-653 (Ind.

Ct. App. 2014) (defendant’s inability to complete drug treatment programs,

continued use of drugs after treatment was administered during incarceration,

and the presence of petitions to revoke defendant’s probation, confirm

appropriateness of sentence).

2. Probation Revocation [13] We recognize that “probation by its nature is a matter of grace, imposed in lieu

of imprisonment--granted in exchange for the defendant’s promise to remain

law-abiding during his conditional release.” Knapp v. State, 9 N.E.3d 1274, 1290

(Ind. 2014). Revocation of that grace is a two-step process: first, the court must

determine whether a probationer violated a condition of probation; second, the

court must decide whether that violation justifies revocation of probation.

Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005), trans. denied. If a

probationer admits violating probation, “the court can proceed to the second

step of the inquiry and determine whether the violation warrants revocation.”

Id. The violation of a single condition of probation is sufficient to revoke

probation. Wilson v. State, 708 N.E.2d 32, 34 (Ind. Ct. App. 1999).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-314 | August 19, 2020 Page 8 of 11 [14] After revocation, the trial court in its discretion may order execution of all or

part of a suspended sentence. Alford v. State, 965 N.E.2d 133, 135 (Ind. Ct.

App. 2012); see also Ind. Code § 35-38-2-3(h)(3) (statute governing violation of

conditions of probation). Generally, if the trial court follows the procedures

outlined in Indiana Code section 35-38-2-3, the trial court properly may order

execution of a suspended sentence. Wann v. State, 997 N.E.2d 1103, 1106 (Ind.

Ct. App. 2013), reh’g denied. Sentencing decisions for probation violations are

reviewable for an abuse of discretion, which occurs “where the decision is

clearly against the logic and effect of the facts and circumstances.” Prewitt v.

State, 878 N.E.2d 184, 187 (Ind. 2007). “[U]ltimately, it is the trial court’s

discretion as to what sanction to impose” for a probation violation. Abernathy v.

State, 852 N.E.2d 1016, 1022 (Ind. Ct. App. 2006).

[15] During the sentencing hearing, the trial judge recognized Bell’s failed efforts at

rehabilitation and Bell’s “three prior felony convictions with short jail

sentences, probation, time in the Department of Correction, time in the

Community Control Program through Community Corrections, the

Community Transition Program, . . . parole, and then, ultimately, in the Drug

Court Program.” (Tr. Vol. II at 52-53.) Specifically, in 2015, Bell’s three-year

probation sentence for Class D felony receiving stolen property 3 was revoked

and he was ordered to serve the three years in the DOC before being released

3 Ind. Code § 35-43-4-2(b).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-314 | August 19, 2020 Page 9 of 11 on parole. (App. Vol. II. at 46.) Failing to recognize that probation is a

“favor,” Bell violated his probation for Level 6 felony resisting law enforcement

by committing an additional Level 6 felony, and then neglected to follow the

terms and conditions of the Drug Court Program. It is evident that Bell’s

actions do not align with the programs’ goals and demonstrate disregard for

achieving rehabilitation. The trial court was well within its discretion to

determine Bell was not a good candidate to remain on probation. See Cox v.

State, 850 N.E.2d 485, 489-491 (Ind. Ct. App. 2006) (defendant’s implied

agreement to comply with the terms of his probation authorized the trial court

to order execution of the sentence initially suspended, when he violated his

probation by “committing another crime and using drugs,” despite the original

plea agreement). See also Crump v. State, 740 N.E.2d 564, 567 (Ind. Ct. App.

2000) (because defendant violated his probation, trial court properly revoked his

probation and work release and ordered executed an eight-year sentence in the

Indiana Department of Correction).

Conclusion [16] Bell’s sentence for his drug possession conviction is not inappropriate given that

he committed that offense while on probation for a separate, unrelated felony

conviction. Bell’s lengthy criminal history and failed attempts at maintaining

successful probation also indicate his character does not merit modification of

his sentence. Finally, based on Bell’s repeated probation violations and

inability to successfully participate in the Drug Court Program, the trial court

Court of Appeals of Indiana | Memorandum Decision 20A-CR-314 | August 19, 2020 Page 10 of 11 did not abuse its discretion when it ordered Bell to serve his suspended sentence

of one year in the DOC rather than on probation. Accordingly, we affirm.

[17] Affirmed.

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

Court of Appeals of Indiana | Memorandum Decision 20A-CR-314 | August 19, 2020 Page 11 of 11