Ervin M. Price v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 6, 2020
• Docket: 19A-CR-2358
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Mar 06 2020, 11:07 am

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 Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Samantha M. Sumcad Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ervin M. Price, March 6, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2358 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable John T. Roach, Appellee-Plaintiff. Judge Trial Court Cause No. 84D01-1807-F4-2586

Bradford, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2358| March 6, 2020 Page 1 of 4 Case Summary [1] In September of 2019, Ervin Price pled guilty to four counts of Level 4 felony

cocaine dealing, and the trial court sentenced him to nine years in the Indiana

Department of Correction (“DOC”) with three years suspended to probation.

Price challenges the appropriateness of his placement in the DOC. We affirm.

Facts and Procedural History [2] On four separate occasions in February of 2018, Price sold cocaine to a

confidential informant, totaling approximately seven grams. On July 26, 2018,

the State charged Price with four counts of Level 4 felony cocaine dealing, four

counts of Level 6 felony cocaine possession, and four counts of Level 6 felony

maintaining a common nuisance. While on pretrial work release, Price

committed new offenses which resulted in charges of Level 2 felony cocaine

dealing, Level 3 felony cocaine possession, Level 2 felony methamphetamine

dealing, Level 4 felony methamphetamine possession, and Level 5 felony

neglect of a dependent, Level 6 felony maintaining a common nuisance, and

Class B misdemeanor marijuana possession. On September 12, 2019, pursuant

to a plea agreement, Price agreed to plead guilty to four counts of Level 4

felony cocaine dealing, and the State agreed to dismiss the remaining charges.

The trial court accepted the plea agreement and sentenced Price to nine years in

the DOC with three years suspended to probation.

Discussion and Decision Court of Appeals of Indiana | Memorandum Decision 19A-CR-2358| March 6, 2020 Page 2 of 4 [3] Price does not contest the length of his sentence, only his placement in the

DOC. We 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.” Ind. Appellate Rule 7(B).

“Sentencing is principally a discretionary function in which the trial court’s

judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d

1219, 1222 (Ind. 2008) (internal citations omitted). Placement is an appropriate

focus for application of our Appellate Rule 7(B) authority. Biddinger v. State, 868

N.E.2d 407, 414 (Ind. 2007). When a defendant challenges his placement,

under Appellate Rule 7(B), the question is not whether another placement is

more appropriate but, rather, whether the given placement is inappropriate.

Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). It is the defendant’s

burden to persuade us that the placement is inappropriate. Id. We have stated

that “it will be quite difficult for a defendant to prevail on a claim that the

placement of his or her sentence is inappropriate,” noting that “trial courts

know the feasibility of alternative placements in particular counties or

communities.” Id.

[4] While not an especially egregious crime, the nature of Price’s offenses does not

necessarily support a less-restrictive placement. Price pled guilty to four counts

of Level 4 felony cocaine dealing after he dealt cocaine on four separate

occasions, which totaled approximately seven grams.

[5] Price’s character also justifies his DOC placement. In Illinois as an adult, Price

has convictions for Class 2 felony unlawful possession of a weapon by a felon,

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2358| March 6, 2020 Page 3 of 4 Class 4 felony cannabis possession, Class 4 felony aggravated unlawful use of a

weapon, two counts of Class 4 felony controlled-substance possession, and two

counts of Class A misdemeanor driving on a suspended license. In Indiana as

an adult, Price has been convicted of Class C felony carrying a handgun

without a license. Price also has violated probation multiple times, had an

active warrant issued in Illinois for his arrest for felony escape charges when he

was arrested in this matter, and had his pretrial work release revoked in this

matter after committing new drug-related offenses. Given the nature of his

offenses, lengthy criminal history, violation of pretrial work release, and

continuous disregard for the rule of law, the trial court correctly concluded that

the DOC was the appropriate placement for Price. Price has failed to establish

that his placement was inappropriate.

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

Robb, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2358| March 6, 2020 Page 4 of 4