MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 31 2019, 6:20 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 Kimberly A. Jackson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Megan M. Smith Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Derid Becker, October 31, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-503 v. Appeal from the Noble Circuit Court State of Indiana, The Honorable Michael J. Kramer, Appellee-Plaintiff, Judge Trial Court Cause Nos. 57C01-1712-FD-4 57C01-1712-FD-5 57C01-1712-F6-50
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-503 | October 31, 2019 Page 1 of 9 Case Summary and Issue [1] While on probation for a prior conviction, Derid Becker was charged with
possession of a hypodermic syringe, a Level 6 felony. Becker was accepted into
the Noble County Problem-Solving Court program (“Drug Court”). Pursuant to
Becker’s involvement in this program, he pleaded guilty to the charge and
sentencing was continued pending his participation. Becker was thereafter
sanctioned by the trial court for a variety of Drug Court violations and was
ultimately terminated from the program. Consequently, the trial court
sentenced Becker to two years imprisonment for possession of a hypodermic
syringe. Becker appeals his sentence, raising one issue for our review: whether
the two-year sentence was inappropriate in light of the nature of the offense and
character of the offender. Concluding Becker’s sentence was not inappropriate,
we affirm.
Facts and Procedural History [2] On November 20, 2012, Becker pleaded guilty to two counts of theft and was
sentenced to a total of two years imprisonment, with the sentence suspended to
probation. Because of an existing sentence, Becker did not begin serving his
probation until June 26, 2017. Four months later, during a probation search of
Becker’s residence, a hypodermic syringe modified for the injection of drugs
was found under his couch. Becker admitted to his probation officer that the
syringe belonged to him. The State filed a notice of probation violation in
Court of Appeals of Indiana | Memorandum Decision 19A-CR-503 | October 31, 2019 Page 2 of 9 Becker’s theft cases and charged Becker with possession of a hypodermic
syringe, a Level 6 felony.
[3] On December 14, 2017, Becker signed a participation agreement for Drug
Court. Becker’s Drug Court participation agreement required Becker, among
other things, to: 1) attend and successfully complete all treatment
recommendations and programs; 2) abstain from alcohol and non-prescribed
drugs; 3) submit to random drug tests; 4) attend four support meetings per week
during phase 1 of Drug Court; and 5) reside at a “half-way facility” and serve
home detention until further court order. Appellant’s Appendix, Volume II at
124-28, 131. If Becker successfully completed Drug Court, the State agreed to
dismiss the pending probation violations against him.
[4] Pursuant to this agreement, in December 2017 Becker pleaded guilty to
possession of a hypodermic syringe, a Level 6 felony, and admitted to violating
the terms of his probation in the previous theft cases. The trial court continued
sentencing while Becker participated in the Drug Court program.
[5] Over the next six months, the trial court found that Becker repeatedly violated
Drug Court rules, sanctioning him ten times. Violations included missing
required meetings, missing treatment appointments, neglecting to properly
notify home detention officials of his travel plans, taking prescription medicine
more frequently than prescribed, violating basic home detention requirements,
failing to participate in community service as ordered, arriving late for
probation appointments, and demonstrating belligerent behavior. During this
Court of Appeals of Indiana | Memorandum Decision 19A-CR-503 | October 31, 2019 Page 3 of 9 time period, Becker was also terminated from his half-way facility for behavior
related to these violations.
[6] On June 25, 2018, Becker’s probation officer filed a Drug Court Violation
Report alleging that Becker had violated the terms of his Drug Court
participation agreement by being evicted from his half-way facility. The Drug
Court team decided against recommending termination from the Drug Court at
that time and instead recommended that Becker remain in custody until he
could be placed in another half-way house and home detention. The trial court
approved this recommendation.
[7] After being released from jail into a new half-way house, Becker continued to
commit violations. These new violations included failing to call the drug screen
line and offering a diluted drug screen. Due to Becker’s repeated and numerous
violations, on December 19, 2019, the Drug Court team recommended that
Becker be terminated from the Drug Court Program. On January 7, 2019, the
trial court revoked Becker’s participation in Drug Court and set a date for
sentencing.
[8] During the sentencing hearing, the trial court listed Becker’s criminal history
and the fact he committed the offense while on probation for two other offenses
as aggravating factors. Further, the trial court noted Becker’s numerous Drug
Court violations prevented his participation in the program from being
considered as a mitigating factor and further stated that it could find no other
Court of Appeals of Indiana | Memorandum Decision 19A-CR-503 | October 31, 2019 Page 4 of 9 mitigating factors. The trial court sentenced Becker to two years imprisonment.
Becker now appeals his sentence.
Discussion and Decision I. Standard of Review [9] We may review and revise criminal sentences pursuant to the authority derived
from Article 7, section 6 of the Indiana Constitution. Indiana Appellate Rule
7(B) empowers us to 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.” In reviewing a
sentence, this court gives deference to the trial court’s sentencing decision
because Rule 7(B) requires us to give “due consideration” to the decision and
we recognize the unique perspective of the trial court in making sentencing
decisions. Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). Such
deference should prevail unless overcome by compelling evidence portraying in
a positive light the nature of the offense and the defendant’s character.
Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Our principal role in Rule
7(B) review is to “leaven the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225
(Ind. 2008).
[10] The defendant bears the burden to persuade this court that his or her sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). We may
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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 Oct 31 2019, 6:20 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 Kimberly A. Jackson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Megan M. Smith Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Derid Becker, October 31, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-503 v. Appeal from the Noble Circuit Court State of Indiana, The Honorable Michael J. Kramer, Appellee-Plaintiff, Judge Trial Court Cause Nos. 57C01-1712-FD-4 57C01-1712-FD-5 57C01-1712-F6-50
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-503 | October 31, 2019 Page 1 of 9 Case Summary and Issue [1] While on probation for a prior conviction, Derid Becker was charged with
possession of a hypodermic syringe, a Level 6 felony. Becker was accepted into
the Noble County Problem-Solving Court program (“Drug Court”). Pursuant to
Becker’s involvement in this program, he pleaded guilty to the charge and
sentencing was continued pending his participation. Becker was thereafter
sanctioned by the trial court for a variety of Drug Court violations and was
ultimately terminated from the program. Consequently, the trial court
sentenced Becker to two years imprisonment for possession of a hypodermic
syringe. Becker appeals his sentence, raising one issue for our review: whether
the two-year sentence was inappropriate in light of the nature of the offense and
character of the offender. Concluding Becker’s sentence was not inappropriate,
we affirm.
Facts and Procedural History [2] On November 20, 2012, Becker pleaded guilty to two counts of theft and was
sentenced to a total of two years imprisonment, with the sentence suspended to
probation. Because of an existing sentence, Becker did not begin serving his
probation until June 26, 2017. Four months later, during a probation search of
Becker’s residence, a hypodermic syringe modified for the injection of drugs
was found under his couch. Becker admitted to his probation officer that the
syringe belonged to him. The State filed a notice of probation violation in
Court of Appeals of Indiana | Memorandum Decision 19A-CR-503 | October 31, 2019 Page 2 of 9 Becker’s theft cases and charged Becker with possession of a hypodermic
syringe, a Level 6 felony.
[3] On December 14, 2017, Becker signed a participation agreement for Drug
Court. Becker’s Drug Court participation agreement required Becker, among
other things, to: 1) attend and successfully complete all treatment
recommendations and programs; 2) abstain from alcohol and non-prescribed
drugs; 3) submit to random drug tests; 4) attend four support meetings per week
during phase 1 of Drug Court; and 5) reside at a “half-way facility” and serve
home detention until further court order. Appellant’s Appendix, Volume II at
124-28, 131. If Becker successfully completed Drug Court, the State agreed to
dismiss the pending probation violations against him.
[4] Pursuant to this agreement, in December 2017 Becker pleaded guilty to
possession of a hypodermic syringe, a Level 6 felony, and admitted to violating
the terms of his probation in the previous theft cases. The trial court continued
sentencing while Becker participated in the Drug Court program.
[5] Over the next six months, the trial court found that Becker repeatedly violated
Drug Court rules, sanctioning him ten times. Violations included missing
required meetings, missing treatment appointments, neglecting to properly
notify home detention officials of his travel plans, taking prescription medicine
more frequently than prescribed, violating basic home detention requirements,
failing to participate in community service as ordered, arriving late for
probation appointments, and demonstrating belligerent behavior. During this
Court of Appeals of Indiana | Memorandum Decision 19A-CR-503 | October 31, 2019 Page 3 of 9 time period, Becker was also terminated from his half-way facility for behavior
related to these violations.
[6] On June 25, 2018, Becker’s probation officer filed a Drug Court Violation
Report alleging that Becker had violated the terms of his Drug Court
participation agreement by being evicted from his half-way facility. The Drug
Court team decided against recommending termination from the Drug Court at
that time and instead recommended that Becker remain in custody until he
could be placed in another half-way house and home detention. The trial court
approved this recommendation.
[7] After being released from jail into a new half-way house, Becker continued to
commit violations. These new violations included failing to call the drug screen
line and offering a diluted drug screen. Due to Becker’s repeated and numerous
violations, on December 19, 2019, the Drug Court team recommended that
Becker be terminated from the Drug Court Program. On January 7, 2019, the
trial court revoked Becker’s participation in Drug Court and set a date for
sentencing.
[8] During the sentencing hearing, the trial court listed Becker’s criminal history
and the fact he committed the offense while on probation for two other offenses
as aggravating factors. Further, the trial court noted Becker’s numerous Drug
Court violations prevented his participation in the program from being
considered as a mitigating factor and further stated that it could find no other
Court of Appeals of Indiana | Memorandum Decision 19A-CR-503 | October 31, 2019 Page 4 of 9 mitigating factors. The trial court sentenced Becker to two years imprisonment.
Becker now appeals his sentence.
Discussion and Decision I. Standard of Review [9] We may review and revise criminal sentences pursuant to the authority derived
from Article 7, section 6 of the Indiana Constitution. Indiana Appellate Rule
7(B) empowers us to 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.” In reviewing a
sentence, this court gives deference to the trial court’s sentencing decision
because Rule 7(B) requires us to give “due consideration” to the decision and
we recognize the unique perspective of the trial court in making sentencing
decisions. Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). Such
deference should prevail unless overcome by compelling evidence portraying in
a positive light the nature of the offense and the defendant’s character.
Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Our principal role in Rule
7(B) review is to “leaven the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225
(Ind. 2008).
[10] The defendant bears the burden to persuade this court that his or her sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). We may
look to any factors appearing in the record in making such a determination. Reis
v. State, 88 N.E.3d 1099, 1102 (Ind. Ct. App. 2017). The question under Rule Court of Appeals of Indiana | Memorandum Decision 19A-CR-503 | October 31, 2019 Page 5 of 9 7(B) analysis is “not whether another sentence is more appropriate” but rather
“whether the sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008). Whether a sentence is inappropriate “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.
II. Inappropriate Sentence [11] We begin with the advisory sentence in determining whether a sentence is
inappropriate. Childress, 848 N.E.2d at 1081. The advisory sentence for a Level
6 felony is one year, with a minimum sentence of six months and a maximum
sentence of two and one-half years. Ind. Code § 35-50-2-7(b). Becker was
sentenced to two years, which exceeds the advisory sentence, but falls short of
the maximum sentence allowed.
A. Nature of the Offense [12] Becker was on probation for two separate theft convictions at the time he was
charged with the instant offense. His probation for these crimes had started only
four months prior to the syringe being found under his couch during a routine
probation search. Becker was charged under Indiana Code section 16-42-19-18,
which states: “A person may not possess with intent to: (1) violate this chapter
[dealing with the possession, use, or sale of legend drugs]; or (2) commit an
offense [related to controlled substances] described in IC 35-48-4; a hypodermic
syringe or needle or an instrument adapted for the use of a controlled substance
Court of Appeals of Indiana | Memorandum Decision 19A-CR-503 | October 31, 2019 Page 6 of 9 or legend drug by injection in a human being.” The statute does not require
actual use of a drug. Rather, it requires the possession of a hypodermic needle
adapted for the use of a controlled substance with the intent to commit a
violation. See Cooper v. State, 171 Ind. App. 350, 359-60, 357 N.E.2d 260, 265
(1976) (stating that in order in to sustain a conviction for possession of
instruments adapted to the use of narcotics, the State must prove that the
defendant was in possession of the instruments and had the intent to use them
illegally). Thus, Becker’s argument that he did not actually use an illegal
substance with the modified syringe, and that this fact should inform our
perspective of the nature of his offense, is moot. Further, the record makes clear
that Becker had, in fact, modified a syringe to get high on Suboxone, Percocet,
methamphetamine, and methadone. Becker’s probation officer stated that
Becker “was using, um, methamphetamine, Suboxone, methadone and
Percocet none of which was prescribed to him[.]” Transcript, Volume 2 at 5.
Becker himself stated that his drugs of choice were opiates and Suboxone and
upon obtaining a valid prescription, “I shot my own prescription.” Id. at 35.
[13] The nature of the offense, in light of Becker’s criminal history, demonstrated
disregard for the law, and continued improper use of drugs (prescription or
otherwise) provides an adequate foundation for the Becker’s sentence.
B. Character of the Offender [14] Becker argues that his character supports a reduction in his sentence.
Specifically, Becker states that because he pleaded guilty to this crime, his
sentence should be reduced from the near-maximum. The significance of a Court of Appeals of Indiana | Memorandum Decision 19A-CR-503 | October 31, 2019 Page 7 of 9 guilty plea as a mitigating circumstance varies from case to case. Anglemyer v.
State, 875 N.E.2d 218, 221 (Ind. 2007) (opinion on reh’g). A guilty plea may not
be significantly mitigating when it does not demonstrate the defendant’s
acceptance of responsibility or when the defendant receives a substantial benefit
in return for the plea. Id.
[15] Here, the trial court specifically declined to find Becker’s guilty plea a
mitigating factor. We agree that Becker’s guilty plea in this case does not reflect
well upon his character because of his past criminal history, commission of an
offense while on probation, and termination from Drug Court.
[16] Becker further argues that his “violations of Drug Court rules are relatively
minor[.]” Amended Brief of the Appellant at 17. Even to the extent this is true,
the regular and recurring violation of Drug Court rules demonstrates Becker is
unable to comply with even the most basic requirements imposed by law. The
Drug Court team excused many of Becker’s violations until it became clear that
he would be unable to comply for any extended period of time. Indeed, Becker
was violating rules “almost on a weekly basis[.]” Tr., Vol. 2 at 228. Becker’s
character does not merit sentence revision under Rule 7(B).
[17] Based on the facts and circumstances of this case, we conclude that Becker’s
two-year sentence is not inappropriate in light of the nature of his offense and
his character. We decline to revise it under Appellate Rule 7(B).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-503 | October 31, 2019 Page 8 of 9 Conclusion [18] For the reasons set forth above, we conclude that a two-year sentence is not
inappropriate in light of Becker’s offense and his character. Therefore, we
affirm.
[19] Affirmed.
Mathias, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-503 | October 31, 2019 Page 9 of 9