Jacob Cummings v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 28, 2018
• Docket: 34A02-1711-CR-2626
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 28 2018, 7:33 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald E.C. Leicht Curtis T. Hill, Jr. Kokomo, Indiana Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jacob Cummings, March 28, 2018 Appellant-Defendant, Court of Appeals Case No. 34A02-1711-CR-2626 v. Appeal from the Howard Superior Court State of Indiana, The Honorable William C. Appellee-Plaintiff Menges, Judge Trial Court Cause No. 34D01-1702-F5-130

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2626 | March 28, 2018 Page 1 of 5 [1] Jacob Cummings appeals the sentence imposed by the trial court after he

pleaded guilty to Level 6 Felony Unlawful Possession of a Syringe. Cummings

argues that the sentence is inappropriate in light of the nature of the offense and

his character. Finding that the sentence is not inappropriate, we affirm.

Facts [2] On January 31, 2017, the Kokomo Police Drug Task Force began surveillance

of a Kokomo residence. The officers observed multiple vehicles come and go

from the residence, including one vehicle that was followed and stopped by the

officers; both occupants were arrested after officers found methamphetamine

and heroin.

[3] At the residence, Cummings, several other adults, and two children exited as

the officers searched it pursuant to a warrant. The officers found a bag that had

several syringes and burnt spoons with residue that was later determined to be

heroin. Cummings claimed ownership of the bag and told police that he had

last injected heroin that afternoon. The officers also found bags and foil with a

substance that was later determined to be methamphetamine; baggies that

tested positive for methamphetamine; digital scales; a safe; a grinder; stripped

marijuana plants and grow lights; glass smoking devices; and 1.9 grams of

heroin in separate plastic bags.

[4] On February 1, 2017, the State charged Cummings with Level 5 felony

unlawful possession of a syringe, Level 5 felony possession of

methamphetamine, Level 5 felony possession of a narcotic drug, and Class B

Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2626 | March 28, 2018 Page 2 of 5 misdemeanor visiting a common nuisance. The State later added a charge of

Level 6 felony unlawful possession of a syringe. On October 18, 2017,

Cummings pleaded guilty to Level 6 felony unlawful possession of a syringe in

exchange for the dismissal of the remaining charges. The sentence was left

open to the trial court and, at the October 18, 2017, sentencing hearing, the trial

court imposed a sentence of 913 days imprisonment. Cummings now appeals.

Discussion and Decision [5] Cummings’s sole argument on appeal is that the sentence imposed by the trial

court is inappropriate in light of the nature of the offense and his character

pursuant to Indiana Appellate Rule 7(B). In considering an argument under

Rule 7(B), we must “conduct [this] review with substantial deference and give

‘due consideration’ to the trial court’s decision—since the ‘principal role of

[our] review is to attempt to leaven the outliers,’ and not to achieve a perceived

‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)

(quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal

citations omitted).

[6] Cummings pleaded guilty to one count of a Level 6 felony. For this conviction,

he faced a sentence of six months to two and one-half years imprisonment, with

an advisory term of one year. I.C. § 35-50-2-7(b). The trial court imposed a

sentence of 913 days, or approximately two and one-half years.

[7] With respect to the nature of the offense, Cummings’s criminal conduct far

exceeded that which was encompassed by his guilty plea. See Bethea v. State,

Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2626 | March 28, 2018 Page 3 of 5 983 N.E.2d 1134, 1144-45 (Ind. 2013) (holding that it is appropriate for a court

to consider the totality of the defendant’s conduct that brought the defendant

before the trial court). He visited a house that held heroin, methamphetamine,

scales, and the markings of a marijuana grow operation. Minors were present

in the residence when Cummings was there. Cummings himself was in

possession of heroin and paraphernalia and admitted to having injected himself

with heroin earlier that same day.

[8] With respect to Cummings’s character, we note that he has amassed a

substantial criminal history. As a juvenile, he was arrested for possession of

marijuana, illegal possession of an alcoholic beverage, and visiting a common

nuisance. As an adult, Cummings has been convicted for dealing in a

controlled substance, theft, possession of methamphetamine, unlawful

possession of a syringe, possession of marijuana, and receiving stolen property.

He was out on bond in a counterfeiting and theft case in another county at the

time he committed the instant offense.

[9] Cummings clearly has a serious substance abuse problem, and he has been

afforded multiple opportunities to treat that problem. As early as 2001, he had

the opportunity to participate in inpatient substance abuse treatment, which he

began but did not complete. In 2008, he successfully participated in outpatient

treatment through a drug court program, but returned to daily use of heroin and

methamphetamine thereafter. He has participated with drug-aided recovery

with the use of methadone and suboxone. Notwithstanding these

Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2626 | March 28, 2018 Page 4 of 5 opportunities, Cummings continues to use illegal substances and commit crimes

related to his substance abuse.

[10] Under these circumstances, we find that the sentence imposed by the trial court

is not inappropriate in light of the nature of the offense and Cummings’s

character.

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

Kirsch, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2626 | March 28, 2018 Page 5 of 5