Pursuant to Ind.Appellate Rule 65(D), this 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:
NANCY A. McCASLIN GREGORY F. ZOELLER McCaslin & McCaslin Attorney General of Indiana Elkhart, Indiana JODI KATHRYN STEIN Deputy Attorney General Indianapolis, Indiana
Apr 03 2013, 9:06 am
IN THE COURT OF APPEALS OF INDIANA
JASON R. DERRY, JR., ) ) Appellant-Defendant, ) ) vs. ) No. 20A03-1208-CR-354 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ELKHART SUPERIOR COURT The Honorable Charles Carter Wicks, Judge Cause No. 20D05-1005-FC-9 & 20D05-1111-FD-330
April 3, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge STATEMENT OF THE CASE
Appellant-Defendant, Jason R. Derry, Jr., (Derry), appeals the trial court’s denial
of his Motion to Re-Sentence after he pled guilty to possession of cocaine, a Class D
felony, Indiana Code § 35-48-4-6(a).
We affirm.
ISSUES
Derry raises three issues on appeal, which we consolidate and restate as the
following two issues:
1. Whether fundamental error occurred when the plea bargain deadline was
not extended, and the trial court imposed a harsher sentence than the
sentence recommended by the State; and
2. Whether Derry’s sentence is inappropriate.
FACTS AND PROCEDURAL HISTORY
On November 22, 2011, the State charged Derry with possession of cocaine as a
Class D felony. The trial court appointed a public defender for Derry at the November
28, 2011 initial hearing and scheduled a plea bargain deadline for February 27, 2012.
The trial court told Derry to contact and stay in touch with his public defender.
On January 30, 2012 the public defender filed a Motion to Withdraw Appearance
because Derry had failed to contact her. At a February 13, 2012 hearing, the trial court
granted the public defender’s motion to withdraw, and private counsel entered an
2 appearance. The trial court confirmed the February 27, 2012 plea bargain deadline, and
Derry did not request to extend it.
The trial court held a hearing on February 27, the day the plea bargain deadline
expired. Derry informed the trial court that he was not ready to plead guilty, and the trial
court warned him that the plea bargain deadline was expiring and that if Derry later pled
guilty or went to trial, he could be sentenced for up to three years for the class D felony.
Defendant acknowledged that he understood the trial court’s admonition and did not
request an extension of the plea bargain deadline.
On June 11, 2012, Derry pled guilty to possession of cocaine as a Class D felony.
Specifically, he testified that he had constructively possessed cocaine. Derry also
informed the trial court that the State had recommended a one-year cap of executed time
on work release. The trial court pointed out that the plea bargain deadline had expired
and advised Derry that the State’s recommendation was not binding on the court.
One month later, on July 16, 2012, the trial court accepted Derry’s guilty plea and
sentenced him to two years executed. The trial court explained that this was Derry’s
sixth felony conviction and that he had previously been unsatisfactorily discharged from
probation. The trial court advised Derry he would have to earn his way to work release.
On July 23, 2012, Derry filed a Motion for Re-Sentencing. At the hearing, Derry
explained that the plea bargain deadline had expired before discovery was completed, and
that discovery was not favorable to the State. According to Derry, this is the reason the
State had recommended work release. The State confirmed that it had agreed to work
3 release, but the trial court explained that it had imposed the two-year executed sentence
because of Derry’s legal history. The trial court again explained that it would consider
transferring Derry to work release if he made favorable progress. The trial court denied
Derry’s Motion to Re-sentence.
Derry now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Fundamental Error
Derry first argues that the “plea bargain deadline should have been extended, and
fundamental error resulted when the trial court imposed a harsher sentence than the
[S]tate and [Derry] had agreed to . . . . [Derry] was prejudiced by the inflexibility of the
plea bargain date because the sentence was more harsh [than] the one offered by the State
in the plea agreement, which the court would not accept after the deadline had expired.”
(Appellant’s Br., p. 23).
However, Derry has waived appellate review of this issue because he failed to ask
the trial court to extend the plea bargain deadline. A party cannot raise an issue for the
first time on appeal. Cheek v. State, 567 N.E.2d 1192, 1195 (Ind. Ct. App. 1991).
In an attempt to avoid waiver, Derry argues that fundamental error occurred. To
constitute fundamental error, “the error must constitute a blatant violation of basic
principles, the harm or potential for harm must be substantial, and the resulting error must
deny the defendant fundamental due process.” Brown v. State, 799 N.E.2d 1064, 1067
(Ind. 2003).
4 Derry specifically claims that the trial court rejected the plea agreement because it
was presented after the plea bargain deadline had expired and fundamental error resulted
when the trial court imposed a harsher sentence than the one-year sentence on work
release that the State had recommended. However, the trial court did not reject the plea
agreement because it was presented after the plea bargain deadline had expired; rather,
the trial court specifically stated that it was rejecting this sentence because of Derry’s five
prior felony convictions and unsatisfactory discharge from probation.
The decision to accept or reject a plea agreement is a matter left to the trial court’s
discretion. Koontz v. State, 975 N.E.2d 846, 849 (Ind. Ct. App. 2012). Accordingly, the
State is correct that even if the parties had come to an agreement prior to the plea bargain
deadline, it was within the trial court’s discretion to reject the sentence agreed to by the
parties. When the parties informed the trial court that the recommendation was a one-
year executed sentence on work release, the trial court specifically rejected the
recommendation based upon Derry’s prior criminal history that includes five felony
convictions as well as an unsatisfactory discharge from probation. Instead, the trial court
offered Derry future relief to work release if he made good progress. We find no error,
fundamental or otherwise.
I. Inappropriate Sentence
Derry next argues that his two-year executed sentence is inappropriate because he
only pled guilty to constructive possession of cocaine. Although a trial court may have
acted within its lawful discretion in imposing a sentence, Article VII, Sections 4 and 6 of
5 the Indiana Constitution authorize independent appellate review and revision of sentences
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Pursuant to Ind.Appellate Rule 65(D), this 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:
NANCY A. McCASLIN GREGORY F. ZOELLER McCaslin & McCaslin Attorney General of Indiana Elkhart, Indiana JODI KATHRYN STEIN Deputy Attorney General Indianapolis, Indiana
Apr 03 2013, 9:06 am
IN THE COURT OF APPEALS OF INDIANA
JASON R. DERRY, JR., ) ) Appellant-Defendant, ) ) vs. ) No. 20A03-1208-CR-354 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ELKHART SUPERIOR COURT The Honorable Charles Carter Wicks, Judge Cause No. 20D05-1005-FC-9 & 20D05-1111-FD-330
April 3, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge STATEMENT OF THE CASE
Appellant-Defendant, Jason R. Derry, Jr., (Derry), appeals the trial court’s denial
of his Motion to Re-Sentence after he pled guilty to possession of cocaine, a Class D
felony, Indiana Code § 35-48-4-6(a).
We affirm.
ISSUES
Derry raises three issues on appeal, which we consolidate and restate as the
following two issues:
1. Whether fundamental error occurred when the plea bargain deadline was
not extended, and the trial court imposed a harsher sentence than the
sentence recommended by the State; and
2. Whether Derry’s sentence is inappropriate.
FACTS AND PROCEDURAL HISTORY
On November 22, 2011, the State charged Derry with possession of cocaine as a
Class D felony. The trial court appointed a public defender for Derry at the November
28, 2011 initial hearing and scheduled a plea bargain deadline for February 27, 2012.
The trial court told Derry to contact and stay in touch with his public defender.
On January 30, 2012 the public defender filed a Motion to Withdraw Appearance
because Derry had failed to contact her. At a February 13, 2012 hearing, the trial court
granted the public defender’s motion to withdraw, and private counsel entered an
2 appearance. The trial court confirmed the February 27, 2012 plea bargain deadline, and
Derry did not request to extend it.
The trial court held a hearing on February 27, the day the plea bargain deadline
expired. Derry informed the trial court that he was not ready to plead guilty, and the trial
court warned him that the plea bargain deadline was expiring and that if Derry later pled
guilty or went to trial, he could be sentenced for up to three years for the class D felony.
Defendant acknowledged that he understood the trial court’s admonition and did not
request an extension of the plea bargain deadline.
On June 11, 2012, Derry pled guilty to possession of cocaine as a Class D felony.
Specifically, he testified that he had constructively possessed cocaine. Derry also
informed the trial court that the State had recommended a one-year cap of executed time
on work release. The trial court pointed out that the plea bargain deadline had expired
and advised Derry that the State’s recommendation was not binding on the court.
One month later, on July 16, 2012, the trial court accepted Derry’s guilty plea and
sentenced him to two years executed. The trial court explained that this was Derry’s
sixth felony conviction and that he had previously been unsatisfactorily discharged from
probation. The trial court advised Derry he would have to earn his way to work release.
On July 23, 2012, Derry filed a Motion for Re-Sentencing. At the hearing, Derry
explained that the plea bargain deadline had expired before discovery was completed, and
that discovery was not favorable to the State. According to Derry, this is the reason the
State had recommended work release. The State confirmed that it had agreed to work
3 release, but the trial court explained that it had imposed the two-year executed sentence
because of Derry’s legal history. The trial court again explained that it would consider
transferring Derry to work release if he made favorable progress. The trial court denied
Derry’s Motion to Re-sentence.
Derry now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Fundamental Error
Derry first argues that the “plea bargain deadline should have been extended, and
fundamental error resulted when the trial court imposed a harsher sentence than the
[S]tate and [Derry] had agreed to . . . . [Derry] was prejudiced by the inflexibility of the
plea bargain date because the sentence was more harsh [than] the one offered by the State
in the plea agreement, which the court would not accept after the deadline had expired.”
(Appellant’s Br., p. 23).
However, Derry has waived appellate review of this issue because he failed to ask
the trial court to extend the plea bargain deadline. A party cannot raise an issue for the
first time on appeal. Cheek v. State, 567 N.E.2d 1192, 1195 (Ind. Ct. App. 1991).
In an attempt to avoid waiver, Derry argues that fundamental error occurred. To
constitute fundamental error, “the error must constitute a blatant violation of basic
principles, the harm or potential for harm must be substantial, and the resulting error must
deny the defendant fundamental due process.” Brown v. State, 799 N.E.2d 1064, 1067
(Ind. 2003).
4 Derry specifically claims that the trial court rejected the plea agreement because it
was presented after the plea bargain deadline had expired and fundamental error resulted
when the trial court imposed a harsher sentence than the one-year sentence on work
release that the State had recommended. However, the trial court did not reject the plea
agreement because it was presented after the plea bargain deadline had expired; rather,
the trial court specifically stated that it was rejecting this sentence because of Derry’s five
prior felony convictions and unsatisfactory discharge from probation.
The decision to accept or reject a plea agreement is a matter left to the trial court’s
discretion. Koontz v. State, 975 N.E.2d 846, 849 (Ind. Ct. App. 2012). Accordingly, the
State is correct that even if the parties had come to an agreement prior to the plea bargain
deadline, it was within the trial court’s discretion to reject the sentence agreed to by the
parties. When the parties informed the trial court that the recommendation was a one-
year executed sentence on work release, the trial court specifically rejected the
recommendation based upon Derry’s prior criminal history that includes five felony
convictions as well as an unsatisfactory discharge from probation. Instead, the trial court
offered Derry future relief to work release if he made good progress. We find no error,
fundamental or otherwise.
I. Inappropriate Sentence
Derry next argues that his two-year executed sentence is inappropriate because he
only pled guilty to constructive possession of cocaine. Although a trial court may have
acted within its lawful discretion in imposing a sentence, Article VII, Sections 4 and 6 of
5 the Indiana Constitution authorize independent appellate review and revision of sentences
through Indiana Appellate Rule 7(B), which provides that a court “may revise a sentence
authorized by statute 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.” Under this rule, the burden is on the defendant to persuade the
appellate court that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073,
1080 (Ind. 2006). When considering whether a sentence is inappropriate, we give due
consideration to the trial court’s decision. Allen v. State, 925 N.E.2d 469, 481 (Ind. Ct.
App. 2010), trans. denied.
With respect to the nature of the offense, Derry claims his sentence is
inappropriate because he only pled guilty to constructive and not actual possession of
cocaine. However, a conviction for possession may be premised upon either actual or
constructive possession of the contraband. Holmes v. State, 785 N.E.2d 658, 660 (Ind.
Ct. App. 2003). The State is correct that the two kinds of possession are treated equally
under the law and in sentencing.
With respect to the character of the offender, the trial court pointed out that this is
Derry’s sixth felony conviction. He also has an unsatisfactory discharge from probation.
His prior contacts with the law have not caused him to reform himself. Based upon our
review of the evidence, we see nothing in the character of this offender or in the nature of
the offense that would suggest that Derry’s two-year executed sentence is inappropriate.
CONCLUSION
6 Based on the foregoing, we conclude that fundamental error did not occur, and
Derry’s sentence is not inappropriate.
Affirmed.
BRADFORD, J. and BROWN, J. concur