Scott Kerssemakers v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 31, 2020
• Docket: 20A-CR-590
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 31 2020, 9:13 am

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 Chad Montgomery Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Scott Kerssemakers, July 31, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-590 v. Appeal from the Tippecanoe Circuit Court State of Indiana, The Honorable Sean Persin, Judge Appellee-Plaintiff. Trial Court Cause No. 79C01-1808-F3-23, 79C01-1808- F5-150, & 79C01-1903-F5-33

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-590 | July 31, 2020 Page 1 of 8 STATEMENT OF THE CASE [1] Appellant-Defendant, Scott Kerssemakers (Kerssemakers), appeals his sentence

following his guilty plea under three separate cause numbers for resisting law

enforcement, a Level 6 felony; possession of cocaine, a Level 3 felony;

possession of cocaine, a Level 5 felony; operating a vehicle with a schedule I or

II controlled substance, a Class C misdemeanor; and possession of

methamphetamine, a Level 5 felony.

[2] We affirm.

ISSUE [3] Kerssemakers presents one issue on appeal, which we restate as: Whether

Kerssemakers’ sentence is inappropriate in light of the nature of the offenses

and his character.

FACTS AND PROCEDURAL HISTORY [4] On May 3, 2018, an Indiana State Trooper observed Kerssemakers drive a

motorcycle at 94 mph in a 60 mph zone while passing two INDOT vehicles

that were on the side of the road with their yellow lights flashing. The State

Trooper stopped Kerssemakers and discovered that his driving privileges had

been suspended. A search of the motorcycle revealed a backpack in the saddle

bag, containing a glass pipe with brown residue and two containers.

Kerssemakers admitted that the containers contained marijuana and cocaine.

On August 13, 2018, the State filed an Information, charging Kerssemakers

with Count I, Level 6 felony possession of cocaine; Count II, Class B Court of Appeals of Indiana | Memorandum Decision 20A-CR-590 | July 31, 2020 Page 2 of 8 misdemeanor possession of marijuana; Count III, Class C misdemeanor

possession of paraphernalia; Count IV, Class C misdemeanor reckless driving;

Count V, Level 5 felony possession of cocaine; and Count VI, Class C

misdemeanor possession of marijuana under Cause number 79C01-1808-F5-

150 (Cause F5-150).

[5] On June 6, 2018, an Indiana State Trooper noticed Kerssemakers drive his

motorcycle in a lane closed to traffic. When the State Trooper attempted to

make a traffic stop, Kerssemakers continued for several miles before stopping.

During the traffic stop, the State Trooper discovered that Kerssemakers’ driving

privileges were suspended. The subsequent search revealed a zip lock bag with

two baggies containing cocaine, as well as a glass pipe with plant residue and a

container with plant residue material believed to be marijuana. On August 9,

2018, the State filed an Information, charging Kerssemakers with Count I,

Level 6 felony possession of cocaine; Count II, Class B misdemeanor

possession of marijuana; Count III, Class C misdemeanor possession of

paraphernalia; Count IV, Level 6 felony resisting law enforcement; Count V,

Class A misdemeanor driving while suspended; Count VI, Level 3 felony

possession of cocaine; Count VII, Class A misdemeanor possession of

marijuana; and an habitual offender enhancement under Cause number 79C01-

1808-F3-23 (Cause F3-23).

[6] On January 27, 2019, a State Trooper observed Kerssemakers drive a SUV

while speeding and failing to signal before a lane change. During the traffic

stop, the State Trooper detected the odor of marijuana and alcohol emanating

Court of Appeals of Indiana | Memorandum Decision 20A-CR-590 | July 31, 2020 Page 3 of 8 from the vehicle and noticed marijuana in plain sight. A search further revealed

a glass pipe with marijuana, two hydrocodone and/or acetaminophen pills, and

methamphetamine. The results of a blood draw indicated the presence of THC,

cocaine, benzoylecgonine, methamphetamine, and amphetamine in

Kerssemakers’ blood. On March 18, 1019, the State filed an Information,

charging Kerssemakers with Count I, Level 6 felony possession of a narcotic

drug; Count II, Level 6 felony possession of methamphetamine; Count III,

Class A misdemeanor possession of a controlled substance; Count IV, Class B

misdemeanor possession of marijuana; Count V, Class C misdemeanor

possession of paraphernalia; Count VI, Class C misdemeanor operating a

vehicle while intoxicated; Count VII, Class C misdemeanor operating a vehicle

with a schedule I or II controlled substance or its metabolite in the body; Count

VIII, Class A misdemeanor possession of marijuana; Count IX, Level 5 felony

possession of a narcotic drug; and Count X, Level 5 felony possession of

methamphetamine under Cause number 79C01-1903-F5-33 (Cause F5-33).

[7] On November 1, 2019, Kerssemakers pled guilty to Count IV and Count VI

under Cause F3-23; Count V under Cause F5-150; and Counts VII and X under

Cause F5-33. On February 10, 2020, the trial court conducted a sentencing on

Kerssemakers’ plea agreement. Under Cause F3-23, Kerssemakers was

sentenced to two years on Count IV and ten years on Count VI to run

consecutively, with ten years executed and two years on community

corrections; under F5-150, Kerssemakers was sentenced to five years with two

years in community corrections and three years suspended to probation; and

Court of Appeals of Indiana | Memorandum Decision 20A-CR-590 | July 31, 2020 Page 4 of 8 under F5-33, Kerssemakers was sentenced to sixty days under Count VII and

five years suspended on Count X, with sentences to run concurrently. As such,

Kerssemakers was sentenced to an aggregate sentence of twenty-two years with

ten years executed in the Department of Correction DOC), four years in

community corrections, and eight years suspended to probation.

[8] Kerssemakers now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION [9] Kerssemakers requests that we independently review the appropriateness of his

sentence. “Even when a trial court imposes a sentence within its discretion, the

Indiana Constitution authorizes independent appellate review and revision of

this sentencing decision.” Hoak v. State, 113 N.E.3d 1209, 1209 (Ind. 2019).

Thus, we may alter a sentence 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. Id. The principal role of such review

is to attempt to leaven the outliers. Cardwell v. State, 895 N.E.2d 1219, 1225

(Ind. 2008). The defendant bears the burden to persuade the reviewing court

that the sentence imposed is inappropriate. Robinson v. State, 91 N.E.3d 574,

577 (Ind. 2018).

[10] Within the framework of the sentencing review, Kerssemakers contends that

the trial court abused its discretion when it failed to place him in the Recovery

while Incarcerated program, which is part of purposeful incarceration. In Miller

v. State, 105 N.E.3d 194, 196 (Ind. Ct. App. 2018), we recognized that “the

Court of Appeals of Indiana | Memorandum Decision 20A-CR-590 | July 31, 2020 Page 5 of 8 place that a sentence is to be served is an appropriate focus for application of

our review and revise authority.” Id. (citing Hole v. State, 851 N.E.2d 302, 304

(Ind. 2006) (discretionary placement is subject to Appellate Rule 7(B) review).

However, as in Miller, Kerssemakers does not challenge the location of his

incarceration but rather the failure to be recommended for a program in which

he believes he is entitled to participate. See id. The trial court’s role in relation

to purposeful incarceration is to identify which defendants should be flagged as

individuals most likely to benefit from placement in the program. Id. Entry

into the program is left to the discretion of the DOC; defendants do not have a

right to placement in a program, and trial courts themselves have no authority

to require the DOC to place a particular defendant into a program. Id.; see also

Cohn v. Strawhorn, 721 N.E.2d 342, 348-49 (Ind. Ct. App. 1999) (finding that

Indiana law does not create “a statutory entitlement to educational

programming for all, every, any, or each person committed to the DOC” and it

“is absurd to conclude that the General Assembly could have intended that all

DOC inmates be entitled to substance abuse treatment regardless of whether

they in fact suffer from substance abuse.”) Thus, Kerssemakers’ argument fails

as the appropriateness of his placement within a particular program is not an

issue subject to this court’s review. See id. at 197.

[11] Even reviewing Kerssemakers’ sentence within an appropriateness of a sentence

analysis, his argument is without merit. Kerssemakers entered into a plea

agreement encompassing three different Causes, with each Cause including at

least six different charges. Pursuant to the terms of the plea, Kerssemakers only

Court of Appeals of Indiana | Memorandum Decision 20A-CR-590 | July 31, 2020 Page 6 of 8 pled guilty to five out of twenty-four charges, with the trial court imposing an

aggregate sentence of twenty-two years with ten years executed in the DOC,

four years in community corrections, and eight years suspended to probation.

[12] With respect to the nature of the crime, we do not turn a blind eye to the “facts

of the incident that brought the defendant before” us or the “nature and

circumstances of the crime as well as the manner in which the crime is

committed.” Bethea v. State, 893 N.E.2d 1134, 1145 (Ind. 2013). Each Cause

commenced with a traffic stop due to speeding, while Kerssemakers’ driving

privileges had been suspended. In each Cause, the State Trooper then

invariably located evidence of illegal substances and paraphernalia.

Kerssemakers committed felony after felony with the knowledge that he had

charges in other cases.

[13] Likewise, Kerssemakers’ character does not warrant a downward revision of his

sentence. A defendant’s willingness to continue committing crimes is relevant

for analysis of his character under Appellate Rule 7(B). Garcia v. State, 47 N.E.

3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied. Independent of the current

conviction, Kerssemakers’ criminal involvement includes two juvenile

delinquency adjudications, fourteen prior misdemeanor convictions, and five

prior felony convictions. He violated his probation at least four times.

[14] Besides his criminal history, Kerssemakers’ character clearly speaks to his

disregard for the criminal justice system. It cannot be ignored that

Kerssemakers drove a vehicle at high speed while his driving privileges were

Court of Appeals of Indiana | Memorandum Decision 20A-CR-590 | July 31, 2020 Page 7 of 8 suspended, and while in possession of illegal drugs and paraphernalia.

Accordingly, in light of the nature of the offense and Kerssemakers’ character,

we cannot conclude that the imposed sentence is inappropriate.

CONCLUSION [15] Based on the foregoing, we hold that Kerssemakers’ sentence is not

inappropriate in light of the nature of the offense and his character.

[16] Affirmed.

[17] May, J. and Altice, J. concur

Court of Appeals of Indiana | Memorandum Decision 20A-CR-590 | July 31, 2020 Page 8 of 8