Jason M. Drinsky v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 17, 2015
• Docket: 20A03-1501-CR-7
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jul 17 2015, 8:09 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Peter D. Todd Gregory F. Zoeller Elkhart, Indiana Attorney General of Indiana

Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jason M. Drinsky, July 17, 2015

Appellant-Defendant, Court of Appeals Case No. 20A03-1501-CR-7 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Evan S. Roberts, Appellee-Plaintiff Judge

Case No. 20D01-1409-F4-9

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A03-1501-CR-7 | July 17, 2015 Page 1 of 6 Case Summary [1] Jason M. Drinsky pled guilty to possessing material capable of causing bodily

injury by an inmate, as a level 4 felony. The trial court sentenced Drinsky to

ten years’ imprisonment with four years suspended. Drinsky appeals, claiming

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

character. Concluding that Drinsky has not met his burden to show that the

sentence imposed by the trial court is inappropriate, we affirm.

Facts and Procedural History [2] On July 11, 2014, a law enforcement officer with the Elkhart County Sheriff’s

Department received information that Drinsky, an inmate at the Elkhart

County Correctional Facility, was in possession of a white plastic spoon handle

that had been sharpened to a point. This item is commonly known as a

“shank.” Appellant’s App. at 80. A subsequent search revealed that Drinsky

was carrying the shank in his shirt pocket. Drinsky admitted that he knowingly

possessed the weapon but denied that he intended to use it to harm anyone.

Instead, Drinsky claimed that he intended to give the shank to authorities but

was caught with it before he could do so.

Court of Appeals of Indiana | Memorandum Decision 20A03-1501-CR-7 | July 17, 2015 Page 2 of 6 [3] The State charged Drinsky with level 4 felony possessing material capable of

causing bodily injury by an inmate. 1 Drinsky pled guilty to the offense, as well

as to two other pending charges. Following a sentencing hearing, the trial court

imposed a ten-year sentence, with four years suspended to probation, for the

current offense, to be served consecutive to the sentences imposed on the other

charges. Drinsky appeals only the ten-year sentence.

Discussion and Decision [4] Drinsky invites this Court to reduce his ten-year sentence pursuant to Indiana

Appellate Rule 7(B), which 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.” The defendant bears the burden to persuade this Court that

his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080

(Ind. 2006). “[W]hether we regard a sentence as appropriate 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 factors that come to light

1 Indiana Code Section 35-44.1-3-7 provides:

A person who knowingly or intentionally while incarcerated in a penal facility possesses a device, equipment, a chemical substance, or other material that: (1) is used; or

(2) is intended to be used; in a manner that is readily capable of causing bodily injury commits a Level 5 felony. However, the offense is a Level 4 felony if the device, equipment, chemical substance, or other material is a deadly weapon.

Court of Appeals of Indiana | Memorandum Decision 20A03-1501-CR-7 | July 17, 2015 Page 3 of 6 in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). We

recognize that the “principal role of appellate review should be to attempt to

leaven the outliers and to identify some guiding principles for trial courts and

those charged with improvement of the sentencing statutes, but not to achieve a

perceived ‘correct’ result in each case.” Id. at 1225. Indeed, “[t]he 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).

[5] Our supreme court has stated that when considering the appropriateness of a

sentence, we must consider not only the aggregate length of the sentence

imposed, but also whether a portion of the sentence is ordered suspended.

Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). A level 4 felony has a

sentencing range between two and twelve years, with the advisory sentence

being six years. Ind. Code § 35-50-2-5.5. Drinsky received a ten-year sentence

with four years suspended to probation, resulting in a six-year executed

sentence, the same as the level 4 felony advisory sentence.

[6] Regarding the nature of the offense, Drinsky knowingly while incarcerated

possessed an item that had been fashioned into a deadly weapon: a shank. The

record indicates that when the shank was discovered by authorities, Drinsky

was carrying the shank concealed in his shirt pocket. Undoubtedly, having the

shank in a shirt pocket and readily accessible increases the severity of the

offense. Drinsky downplays his possession of the shank by claiming that he

did not intend to use it to hurt anyone and that, at the time he was caught, he

Court of Appeals of Indiana | Memorandum Decision 20A03-1501-CR-7 | July 17, 2015 Page 4 of 6 was planning to give the weapon to a prison investigator whom he trusted.

However, Drinsky admits that he possessed the deadly weapon for several days

and, despite the opportunity to place the weapon in a prison drop-box made

available to prisoners for the very purpose of disposing of contraband they do

not wish to possess, Drinsky failed to do so. These facts do not convince us

that a six-year executed sentence is inappropriate based upon the nature of

Drinsky’s crime.

[7] Regarding his character, Drinsky does not fare much better. He is clearly no

stranger to conflict, violence, or our criminal justice system. Drinsky has prior

class A misdemeanor convictions for domestic battery and interference with

reporting a crime. He was granted the grace of probation only to then violate it.

At the time Drinsky committed the current crime, he was incarcerated and

facing charges of two counts of class C felony stalking and four counts of class

A misdemeanor invasion of privacy. The probable cause affidavits for those

charges indicate that Drinsky engaged in violent, threatening, and antisocial

behavior toward his ex-wife and her boyfriend. He eventually pled guilty to one

count of class D felony stalking and one count of class A misdemeanor invasion

of privacy. As with his prior history, his most recent criminal history does not

reflect favorably on his character. A sentence reduction is not warranted under

the circumstances.

[8] Drinsky has failed to meet his burden to demonstrate that the sentence imposed

by the trial court is inappropriate based upon the nature of the offense or his

character. Therefore, we affirm his sentence.

Court of Appeals of Indiana | Memorandum Decision 20A03-1501-CR-7 | July 17, 2015 Page 5 of 6 [9] Affirmed.

Brown, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A03-1501-CR-7 | July 17, 2015 Page 6 of 6