Devon R. Rush v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 9, 2017
• Docket: 34A05-1607-CR-1590
• 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 Mar 09 2017, 7:07 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Derick W. Steele Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana Kokomo, Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Devon R. Rush, March 9, 2017 Appellant-Defendant, Court of Appeals Case No. 34A05-1607-CR-1590 v. Appeal from the Howard Superior Court State of Indiana, The Honorable Appellee-Plaintiff. William C. Menges, Jr., Judge Trial Court Cause No. 34D01-1505-F2-485

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 34A05-1607-CR-1590 |March 9, 2017 Page 1 of 7 [1] Devon R. Rush (“Rush”) pleaded guilty to dealing in a narcotic drug 1 as a Level

2 felony, dealing in cocaine2 as a Level 2 felony, and unlawful possession of a

firearm by a serious violent felon (“SVF”),3 a Level 4 felony, and was sentenced

to a thirty-year aggregate sentence. He appeals, raising the following restated

issue: whether his thirty-year sentence is inappropriate in light of the nature of

the offense and the character of the offender.

[2] We affirm.

Facts and Procedural History [3] On May 20, 2015, the police found Rush in the backseat of a car, sitting next to

a child in a car seat, and in close proximity to a loaded .380 handgun, 22.4

grams of heroin, 48.7 grams of cocaine, and $3,871 in cash. Rush initially lied

to the police and said the gun and drugs were not his, and another passenger

lied and said the gun and drugs were hers. On May 22, 2015, the State charged

Rush with Level 2 felony dealing in a narcotic drug, Level 2 felony dealing in

cocaine, Level 3 felony possession of a narcotic drug, Level 3 felony possession

of cocaine, and Level 4 felony possession of a firearm by a SVF.

[4] The parties entered into a plea agreement in which Rush agreed to plead guilty

to Level 2 felony dealing in a narcotic drug, Level 2 felony dealing in cocaine,

1 See Ind. Code § 35-48-4-1(a)(2), (e)(1). 2 See Ind. Code § 35-48-4-1(a)(2), (e)(1). 3 See Ind. Code § 35-47-4-5(c).

Court of Appeals of Indiana | Memorandum Decision 34A05-1607-CR-1590 |March 9, 2017 Page 2 of 7 and Level 4 felony possession of a firearm by a SVF in exchange for the State’s

dismissal of the remaining counts. The parties agreed that sentencing would be

left to the discretion of the trial court, but that the sentences would run

concurrently.

[5] The trial court found Rush’s prior criminal history, the fact that he was on

probation when he committed the present offenses, and his decision to deal

drugs even though he had two young children to take care of as aggravating

factors. Tr. at 30-31. The trial court gave Rush’s guilty plea mitigating weight

since he pleaded guilty “in the midst of trial.” Id. at 31. After finding that the

aggravating and mitigating factors justified an enhanced sentence, the trial court

imposed thirty years for Level 2 felony dealing in a narcotic drug, thirty years

for Level 2 felony dealing in cocaine, and twelve years for Level 4 felony

possession of a firearm by a SVF and ordered the sentences to run concurrently

for an aggregate sentence of thirty years. Rush now appeals.

Discussion and Decision [6] Under Indiana Appellate Rule 7(B), “we may revise any sentence authorized by

statute if we deem it to be inappropriate in light of the nature of the offense and

the character of the offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct.

App. 2014). The 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, 268 (Ind. Ct. App.

2008). It is the defendant’s burden on appeal to persuade the reviewing court

Court of Appeals of Indiana | Memorandum Decision 34A05-1607-CR-1590 |March 9, 2017 Page 3 of 7 that the sentence imposed by the trial court is inappropriate. Chappell v. State,

966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.

[7] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

sentence to the circumstances presented, and the trial court’s judgment “should

receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

2008). The principal role of appellate review is to attempt to “leaven the

outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

end of the day turns on “our sense of the culpability of the defendant, the

severity of the crime, the damage done to others, and myriad other facts that

come to light in a given case.” Id. at 1224.

[8] Rush argues that the trial court erred in sentencing him and that his thirty-year

sentence is inappropriate in light of the nature of the offense and the character

of the offender. He specifically asserts that the nature of his offense was not the

worst offense and that, although he had a significant criminal history, his

character does not make him the worst offender. To bolster his character, Rush

contends that he was only engaged in dealing drugs to help a family member

bond out of jail and not for selfish personal gain and that his children would be

impacted by his incarceration.

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

point to determine the appropriateness of a sentence. Johnson v. State, 986

N.E.2d 852, 856 (Ind. Ct. App. 2013) (citing Anglemyer v. State, 868 N.E.2d 482,

494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007)). Here, Rush pleaded

Court of Appeals of Indiana | Memorandum Decision 34A05-1607-CR-1590 |March 9, 2017 Page 4 of 7 guilty to one count of Level 2 felony dealing in a narcotic drug, one count of

Level 2 felony dealing in cocaine, and one count of Level 4 felony possession of

a firearm by a SVF. A person who commits a Level 2 felony shall be

imprisoned for a fixed term of between ten and thirty years, with the advisory

sentence being seventeen and one-half years. Ind. Code § 35-50-2-4.5. A

person who commits a Level 4 felony shall be imprisoned for a fixed term of

between two and twelve years, with the advisory sentence being six years. Ind.

Code § 35-50-2-5.5. Here, the trial court sentenced Rush to thirty years for each

of his Level 2 felony convictions and twelve years for his Level 4 felony

conviction and ordered the sentences to be served concurrently for a total

sentence of thirty years.

[10] As to the nature of the offense, police discovered Rush in a car, sitting next to a

baby, and in possession of a loaded handgun, 22.4 grams of heroin, 48.7 grams

of cocaine, and $3,871 in cash. At the time he was found to be possession of

this contraband, he was on probation for dealing drugs. When confronted with

the contraband by the police, Rush lied about possessing the drugs, handgun,

and cash and, instead, allowed the other passengers in the car to take the blame

for the items.

[11] As to Rush’s character, he had a significant criminal history, beginning when he

was a juvenile. He began dealing drugs at the age of sixteen years old, and he

was twenty-eight at the time of sentencing. His criminal history consisted of a

juvenile adjudication for possession of marijuana, a felony conviction for

possession of cocaine or narcotic drug, three misdemeanor convictions for

Court of Appeals of Indiana | Memorandum Decision 34A05-1607-CR-1590 |March 9, 2017 Page 5 of 7 operating a vehicle without ever receiving a license, and two Class B felony

convictions for dealing in cocaine. Rush was released from the Community

Transition Program on April 13, 2015 and started dealing drugs again about a

week later. He also began to use cocaine, marijuana, and Lortab since leaving

incarceration. Rush was also still on probation when he committed the instant

offenses on May 20, 2015.

[12] Further, although Rush asserts that he was only dealing drugs to earn money to

help bond his family member out of jail, he does concede that that was not an

excuse for committing a crime. Additionally, Rush’s criminal history

demonstrates that his present offenses were not out of line with his criminal

history. Further, even though Rush had two young children, he chose to

commit crimes instead of reuniting with them after being recently released from

incarceration. Lastly, while Rush claims his sentence is inappropriate because

he should have received leniency due to his guilty plea, the traditional reasons

for granting lenience were not present here because Rush did not plead guilty

until the third day of his jury trial after the trial court and the State had

expended time and resources in trying him. See Pagdett v. State, 875 N.E.2d 310,

317 (Ind. Ct. App. 2007) (“[T]he significance of a guilty plea is lessened if it is

made on the eve of trial after the State has expended resources in preparing its

case.”), trans. denied. We conclude that, in light of the nature of the offense and

the character of the offender, Rush’s sentence is not inappropriate.

[13] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 34A05-1607-CR-1590 |March 9, 2017 Page 6 of 7 Robb, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 34A05-1607-CR-1590 |March 9, 2017 Page 7 of 7