Eric A. Emrich v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 30, 2019
• Docket: 19A-CR-278
• 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 Jul 30 2019, 9:03 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 Brian A. Karle Curtis T. Hill, Jr. Ball Eggleston, PC Attorney General of Indiana Lafayette, Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Eric A. Emrich, July 30, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-278 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff Judge Trial Court Cause No. 79D02-1804-F4-15

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-278 | July 30, 2019 Page 1 of 5 [1] Eric Emrich appeals the ten-year sentence imposed by the trial court after he

pleaded guilty to Level 5 Felony Possession of Methamphetamine, arguing that

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

character. Finding the sentence not inappropriate, we affirm.

[2] On April 11, 2018, the State charged Emrich with Level 4 felony possession of

methamphetamine, Level 5 felony possession of methamphetamine, Level 6

felony possession of a syringe, Level 6 felony counterfeiting, Class B

misdemeanor possession of marijuana, and Class C misdemeanor possession of

paraphernalia. The State also alleged that Emrich was an habitual offender.

Later, on January 2, 2019, the State filed an additional charge of Level 5 felony

possession of methamphetamine with a prior conviction. That same day,

Emrich entered into a guilty plea agreement, pursuant to which he agreed to

plead guilty to the Level 5 felony possession of methamphetamine charge in

exchange for dismissal of the other charges. Additionally, Emrich admitted that

he was an habitual offender due to his past convictions for Level 6 felony

possession of a syringe, Class D felony possession of marijuana with a prior

conviction, Class D felony escape, and Class C felony forgery.

[3] During Emrich’s January 13, 2019, sentencing hearing, Emrich admitted that

he had been in possession of more than one gram of methamphetamine, that he

had yet to pay almost $10,000 in outstanding child support, that he had been

sentenced multiple times to the Department of Correction (DOC), and that he

had committed this specific crime while he was on probation. The plea

agreement established that the executed portion of Emrich’s sentence would be

Court of Appeals of Indiana | Memorandum Decision 19A-CR-278 | July 30, 2019 Page 2 of 5 between five and eight years. Appellant’s App. Vol. II p. 47. The trial court

ultimately sentenced Emrich to an aggregate term of ten years, with seven years

executed in the DOC, one year in community corrections, and two years on

supervised probation. Emrich now appeals.

[4] Emrich argues that the sentence imposed by the trial court is inappropriate in

light of the nature of the offense and his character. Indiana Appellate Rule 7(B)

states that a “Court may 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.” The defendant

bears the burden of persuading us that his sentence is inappropriate. Childress v.

State, 848 N.E.2d 1073, 1080 (Ind. 2006). In determining whether the sentence

is inappropriate, we will consider numerous factors such as culpability of the

defendant, the severity of the crime, the damage done to others, and a “myriad

[of] other factors that come to light in a given case.” Cardwell v. State, 895

N.E.2d 1219, 1224 (Ind. 2008). It is our job to leaven the outliers, not to

achieve a perceived “correct” sentencing result. Id. at 1225.

[5] The maximum sentence for a Level 5 felony possession of methamphetamine

conviction is six years, and the minimum sentence is one year. Ind. Code § 35-

50-2-6(b). The advisory sentence is three years. Id. However, for a person found

to be an habitual offender, the trial court may enhance the sentence for a Level

5 felony conviction by two to six years. I.C. § 35-50-2-8(i)(2). Here, the trial

court sentenced Emrich to an aggregate term of ten years, with seven years

Court of Appeals of Indiana | Memorandum Decision 19A-CR-278 | July 30, 2019 Page 3 of 5 executed in the DOC, one year in community corrections, and two years on

supervised probation.

[6] First, as to the nature of the offense, Emrich was initially charged with more

than just felony possession of more than one gram of methamphetamine.

Specifically, he was also charged with Level 4 felony possession of

methamphetamine, Level 5 felony possession of methamphetamine, Level 6

felony possession of a syringe, Level 6 felony counterfeiting, Class B

misdemeanor possession of marijuana, and Class C misdemeanor possession of

paraphernalia. And though Emrich only admitted to possessing more than one

gram of methamphetamine, the probable cause affidavit alleged that Emrich

had been in possession of 7.52 grams of methamphetamine, more than enough

to be convicted of Level 5 felony possession. Appellant’s App. Vol. II p. 19.

While Emrich claims that no significant harm resulted from his actions, drug

crimes produce deleterious effects to a surrounding community. Therefore, we

find that the nature of Emrich’s offense does not render his sentence

inappropriate.

[7] Next, as to the Emrich’s character, Emrich makes light of the fact that he has

been charged and convicted of numerous drug-related offenses in the past. See

Lindsey v. State, 916 N.E.2d 230, 241 (Ind. Ct. App. 2009) (finding that a

“criminal record alone justifies the sentence imposed by the trial court”).

Emrich has defied the law many times, accumulated numerous convictions—

both felony and misdemeanor—and has not improved his character despite

multiple opportunities for improvement. Emrich even admitted during

Court of Appeals of Indiana | Memorandum Decision 19A-CR-278 | July 30, 2019 Page 4 of 5 sentencing that he committed this offense while he was on probation for

another conviction. Emrich shows little sign of reform, and while he did plead

guilty, “[a] guilty plea is not automatically a significant mitigating factor.”

Sensback v. State, 720 N.E.2d 1160, 1165 (Ind. 1999). Therefore, we find that

Emrich’s character does not render his sentence inappropriate.

[8] In sum, we will not revise Emrich’s sentence pursuant to Indiana Appellate

Rule 7(B).

[9] The judgment of the trial court is affirmed.

Kirsch, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-278 | July 30, 2019 Page 5 of 5