MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), May 18 2016, 7:59 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Bryan M. Truitt Gregory F. Zoeller Valparaiso, Indiana Attorney General of Indiana
Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Eric Heinrichs, May 18, 2016 Appellant-Defendant, Court of Appeals Case No. 64A05-1511-CR-1894 v. Appeal from the Porter Superior Court State of Indiana, The Honorable William E. Alexa, Appellee-Plaintiff. Judge Trial Court Cause No. 64D02-1307-FB-6650
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 64A05-1511-CR-1894 | May 18, 2016 Page 1 of 8 [1] Eric Heinrichs appeals his sentence for two counts of dealing in cocaine or
narcotic drugs as class B felonies. Heinrichs raises one issue which we revise
and restate as whether his sentence is inappropriate in light of the nature of the
offenses and the character of the offender. We affirm.
Facts and Procedural History
[2] On February 21, 2013, at two different times, Heinrichs sold a total of 0.17
grams of heroin to a confidential informant. On July 24, 2013, the State
charged him with two counts of dealing in cocaine or narcotic drugs as class B
felonies.
[3] On December 20, 2013, Heinrichs and the State filed a Recommendation of
Plea Negotiation (the “Recommendation”) which stated that Heinrichs would
plead guilty as charged and be sentenced to Porter County Drug Court, and that
if he did not qualify or did not successfully complete drug court, then
sentencing would be at the discretion of the court. The Recommendation,
which was signed by Heinrichs and his counsel, also stated that Heinrichs
waived his right to appeal his sentence.
[4] On January 31, 2014, the court held a hearing,1 accepted the Recommendation,
sentenced Heinrichs to the Porter County Drug Court, and stated: “If defendant
does not successfully complete Drug Court, the defendant will be returned to
this Court for sentencing at the Court’s discretion. If Defendant does
1 The record does not contain a copy of the transcript of this hearing.
Court of Appeals of Indiana | Memorandum Decision 64A05-1511-CR-1894 | May 18, 2016 Page 2 of 8 successfully complete Drug Court, these judgments will be set aside and this
cause would be dismissed.” Id. at 49.
[5] On August 12, 2015, the court held a hearing at which Heinrichs, his attorney,
and team members were present.2 Two days later, the court entered an order
finding that Heinrichs had eleven proven and/or admitted violations, both
behavioral and drug-use related. The court found that Heinrichs “refuses to
follow the rules and regulations of the Drug Court Program, that most of his
violations are schedule violations, lying and total disregard of Court Orders.”
Id. at 100. The court ordered Heinrichs terminated from the Program and that
he be returned to the court for further proceedings.
[6] On October 9, 2015, the court held a hearing. Lita Renee Peters, an employee
of Respite House, testified that Heinrichs came to Respite House on November
22, 2013, that he became employed and had a couple of jobs, and that he was
drug tested ten times and passed the tests. When asked whether Heinrichs
complied with the rules of Respite House while he was there, Peters answered:
“For the most part. He had a few demerits but nothing major.” Transcript at 5.
She stated that Heinrichs was “a little delusional from time to time” and that
when he met with his case managers he had a problem “distinguishing that he
was there for business rather than pleasure.” Id. at 6. She also testified that she
had heard that he had relapsed. The court then asked Peters if she was aware
2 The record does not contain a copy of the transcript of this hearing.
Court of Appeals of Indiana | Memorandum Decision 64A05-1511-CR-1894 | May 18, 2016 Page 3 of 8 there was a termination hearing held on August 12th and that the court had
found that Heinrichs had eleven proven and/or admitted violations for both
behavior and drug use, and Peters responded that she was not. She also
testified that she thought a lot of Heinrichs’s “problems are addiction and
mental.” Id. at 10.
[7] At the hearing, Heinrichs stated:
Your Honor, humbly, I take full responsibility for losing sight and failing my program. I have absolutely nothing but the highest regard for my case workers and the honorable Judge Jent. As I put time, they put – as they put time in, they helped me and I am grateful to them all. Truthfully, I am deeply saddened by this current situation, however, I have a great progress and continuing progress in my life. And I’ve [sic] very blessed for all the events that have taken place. It has helped my growth in life and my relationship with God, and I thank you for your discretion and consideration on this matter.
Id. at 11.
[8] The court noted that Heinrichs has had problems dealing with drugs and that he
probably has mental health issues as well, and sentenced him to concurrent
terms of six years for each count in the Department of Correction (“DOC”).
The court recommended that Heinrichs be placed in the DOC’s Purposeful
Incarceration program which deals with both drug and mental health issues.
The court stated that “[s]hould [he] successfully complete the program, the
Court may consider a modification.” Appellant’s Appendix at 112. Further,
the court said:
Court of Appeals of Indiana | Memorandum Decision 64A05-1511-CR-1894 | May 18, 2016 Page 4 of 8 I told you back at the change of plea, that you’d be waiving certain rights, one of which was the right to appeal it. And that is, in fact, true, except when you have failed to complete the drug court and the sentencing at my discretion. That changes it. You have a right to appeal the sentencing decision but not the plea itself. You are entitled to take that particular course of action, if you wish.
Transcript at 17-18.
Discussion
[9] The issue is whether Heinrichs’s sentence is inappropriate in light of the nature
of the offenses and his character. He argues that he stands guilty of providing a
willing buyer a narcotic drug, that the confidential informant actively sought
out the drugs that he sold, and that he was simply supplying a demand to
support his own addiction. He asserts that his failures were due to his mental
health issues, and requests that we remand with instructions to resentence him
to six years with all but time served suspended, with placement at Respite
House and dual diagnosis treatment as a condition of probation.
[10] The State argues that Heinrichs waived the right to challenge his sentence on
any grounds under the plea agreement. It contends that, to the extent the trial
court may have given an ambiguous advisement of the right to appeal at the
conclusion of the sentencing hearing, in light of the express waiver provision
contained in the agreement, the advisement is irrelevant and does not invalidate
the waiver. The State also asserts, waiver notwithstanding, that the sentence is
not inappropriate.
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), May 18 2016, 7:59 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Bryan M. Truitt Gregory F. Zoeller Valparaiso, Indiana Attorney General of Indiana
Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Eric Heinrichs, May 18, 2016 Appellant-Defendant, Court of Appeals Case No. 64A05-1511-CR-1894 v. Appeal from the Porter Superior Court State of Indiana, The Honorable William E. Alexa, Appellee-Plaintiff. Judge Trial Court Cause No. 64D02-1307-FB-6650
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 64A05-1511-CR-1894 | May 18, 2016 Page 1 of 8 [1] Eric Heinrichs appeals his sentence for two counts of dealing in cocaine or
narcotic drugs as class B felonies. Heinrichs raises one issue which we revise
and restate as whether his sentence is inappropriate in light of the nature of the
offenses and the character of the offender. We affirm.
Facts and Procedural History
[2] On February 21, 2013, at two different times, Heinrichs sold a total of 0.17
grams of heroin to a confidential informant. On July 24, 2013, the State
charged him with two counts of dealing in cocaine or narcotic drugs as class B
felonies.
[3] On December 20, 2013, Heinrichs and the State filed a Recommendation of
Plea Negotiation (the “Recommendation”) which stated that Heinrichs would
plead guilty as charged and be sentenced to Porter County Drug Court, and that
if he did not qualify or did not successfully complete drug court, then
sentencing would be at the discretion of the court. The Recommendation,
which was signed by Heinrichs and his counsel, also stated that Heinrichs
waived his right to appeal his sentence.
[4] On January 31, 2014, the court held a hearing,1 accepted the Recommendation,
sentenced Heinrichs to the Porter County Drug Court, and stated: “If defendant
does not successfully complete Drug Court, the defendant will be returned to
this Court for sentencing at the Court’s discretion. If Defendant does
1 The record does not contain a copy of the transcript of this hearing.
Court of Appeals of Indiana | Memorandum Decision 64A05-1511-CR-1894 | May 18, 2016 Page 2 of 8 successfully complete Drug Court, these judgments will be set aside and this
cause would be dismissed.” Id. at 49.
[5] On August 12, 2015, the court held a hearing at which Heinrichs, his attorney,
and team members were present.2 Two days later, the court entered an order
finding that Heinrichs had eleven proven and/or admitted violations, both
behavioral and drug-use related. The court found that Heinrichs “refuses to
follow the rules and regulations of the Drug Court Program, that most of his
violations are schedule violations, lying and total disregard of Court Orders.”
Id. at 100. The court ordered Heinrichs terminated from the Program and that
he be returned to the court for further proceedings.
[6] On October 9, 2015, the court held a hearing. Lita Renee Peters, an employee
of Respite House, testified that Heinrichs came to Respite House on November
22, 2013, that he became employed and had a couple of jobs, and that he was
drug tested ten times and passed the tests. When asked whether Heinrichs
complied with the rules of Respite House while he was there, Peters answered:
“For the most part. He had a few demerits but nothing major.” Transcript at 5.
She stated that Heinrichs was “a little delusional from time to time” and that
when he met with his case managers he had a problem “distinguishing that he
was there for business rather than pleasure.” Id. at 6. She also testified that she
had heard that he had relapsed. The court then asked Peters if she was aware
2 The record does not contain a copy of the transcript of this hearing.
Court of Appeals of Indiana | Memorandum Decision 64A05-1511-CR-1894 | May 18, 2016 Page 3 of 8 there was a termination hearing held on August 12th and that the court had
found that Heinrichs had eleven proven and/or admitted violations for both
behavior and drug use, and Peters responded that she was not. She also
testified that she thought a lot of Heinrichs’s “problems are addiction and
mental.” Id. at 10.
[7] At the hearing, Heinrichs stated:
Your Honor, humbly, I take full responsibility for losing sight and failing my program. I have absolutely nothing but the highest regard for my case workers and the honorable Judge Jent. As I put time, they put – as they put time in, they helped me and I am grateful to them all. Truthfully, I am deeply saddened by this current situation, however, I have a great progress and continuing progress in my life. And I’ve [sic] very blessed for all the events that have taken place. It has helped my growth in life and my relationship with God, and I thank you for your discretion and consideration on this matter.
Id. at 11.
[8] The court noted that Heinrichs has had problems dealing with drugs and that he
probably has mental health issues as well, and sentenced him to concurrent
terms of six years for each count in the Department of Correction (“DOC”).
The court recommended that Heinrichs be placed in the DOC’s Purposeful
Incarceration program which deals with both drug and mental health issues.
The court stated that “[s]hould [he] successfully complete the program, the
Court may consider a modification.” Appellant’s Appendix at 112. Further,
the court said:
Court of Appeals of Indiana | Memorandum Decision 64A05-1511-CR-1894 | May 18, 2016 Page 4 of 8 I told you back at the change of plea, that you’d be waiving certain rights, one of which was the right to appeal it. And that is, in fact, true, except when you have failed to complete the drug court and the sentencing at my discretion. That changes it. You have a right to appeal the sentencing decision but not the plea itself. You are entitled to take that particular course of action, if you wish.
Transcript at 17-18.
Discussion
[9] The issue is whether Heinrichs’s sentence is inappropriate in light of the nature
of the offenses and his character. He argues that he stands guilty of providing a
willing buyer a narcotic drug, that the confidential informant actively sought
out the drugs that he sold, and that he was simply supplying a demand to
support his own addiction. He asserts that his failures were due to his mental
health issues, and requests that we remand with instructions to resentence him
to six years with all but time served suspended, with placement at Respite
House and dual diagnosis treatment as a condition of probation.
[10] The State argues that Heinrichs waived the right to challenge his sentence on
any grounds under the plea agreement. It contends that, to the extent the trial
court may have given an ambiguous advisement of the right to appeal at the
conclusion of the sentencing hearing, in light of the express waiver provision
contained in the agreement, the advisement is irrelevant and does not invalidate
the waiver. The State also asserts, waiver notwithstanding, that the sentence is
not inappropriate.
Court of Appeals of Indiana | Memorandum Decision 64A05-1511-CR-1894 | May 18, 2016 Page 5 of 8 [11] Even assuming, without deciding, that Heinrichs did not waive the right to
appeal his sentence, Heinrichs would not prevail. Ind. Appellate Rule 7(B)
provides that we “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, [we find] that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.” Under this rule, the burden is on the defendant to persuade the
appellate court that his or her sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
[12] Our review of the nature of the offense reveals that Heinrichs sold a total of
0.17 grams of heroin to a confidential informant on two different occasions on
the same day. Our review of the character of the offender reveals that Heinrichs
pled guilty as charged but agreed to be sentenced to the Porter County Drug
Court. According to the presentence investigation report (“PSI”), Heinrichs,
who was born in 1969, stated that he has been addicted to drugs for twenty-two
years and alluded to the fact that he has been a drug runner for years to support
his habit. The PSI reports that Heinrichs stated: “I made a poor choice because
I made my choice when I was in my addiction, greed of getting more to feed
my addiction. I take full responsibility for my actions and I am prepared to
accept the consequences of those decisions.” Appellant’s Appendix at 43.
[13] According to the PSI, Heinrichs experimented with marijuana in high school
and said that he has never been seen by a mental health professional. He
reported taking one hit of a marijuana cigarette on a yearly basis between the
ages of thirty-eight and forty-two, and at the age of twenty-one, he started using
Court of Appeals of Indiana | Memorandum Decision 64A05-1511-CR-1894 | May 18, 2016 Page 6 of 8 cocaine and was “married” to the drug until August 2013. Id. at 45. He
reported using cocaine sometimes on a daily basis and a minimum of three days
per week. He admitted to experimenting with many drugs, including acid,
heroin, Vicodin, and Percocet.
[14] In 1995, he was charged in South Dakota with possession of a controlled
substance as a class 5 felony, ingesting an intoxicant other than an alcoholic
beverage as a class 1 misdemeanor, driving with a suspended license, and
possession of drug paraphernalia as a class 2 misdemeanor. The court withheld
entering judgment on the class 5 felony, ordered two years of probation and
completion of a drug abuse assessment, and dismissed the remaining charges.
A petition for revocation of probation was pending at the time the PSI was
completed and a bench warrant was issued for failure to comply with the
sentence. In 1998, Heinrichs was charged with driving while suspended which
was amended to “No Operator’s License in Possession.” Id. at 41.
[15] In 2000, Heinrichs was convicted of driving while suspended as a class A
misdemeanor and sentenced to 180 days in the Porter County Jail, with all but
time served, ten days PACT, and six months unsupervised probation. In
March 2001, the court found that Heinrichs had violated his probation, and
ordered him returned to complete PACT and extended probation. In January
2002, the court again found that Heinrichs violated his probation.
Court of Appeals of Indiana | Memorandum Decision 64A05-1511-CR-1894 | May 18, 2016 Page 7 of 8 [16] Between 2001 and 2005, he was charged with conversion, check deception,
possession of paraphernalia, and driving while suspended as class A
misdemeanors, but these charges were dismissed.
[17] In 2011, Heinrichs was charged with possession of a controlled substance and
possession of a narcotic drug as class D felonies. The court sentenced him to
twelve months in the DOC for possession of a controlled substance as a class A
misdemeanor, placed him on probation, and ordered him to receive a substance
abuse evaluation and participate in therapy as a condition of probation. He was
subsequently ordered to return and complete substance abuse treatment but
failed to complete that program, and he later admitted to a probation violation
and was released unsatisfactorily from probation. The PSI indicates that his
overall risk assessment score placed him in the moderate risk to reoffend
category.
[18] After due consideration of the trial court’s decision, we cannot say that
minimum concurrent sentences of six years is inappropriate in light of the
nature of the offenses and the character of the offender.
Conclusion
[19] For the foregoing reasons, we affirm Heinrichs’s sentence.
[20] Affirmed.
Baker, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 64A05-1511-CR-1894 | May 18, 2016 Page 8 of 8