Sidney A. Berry v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 29, 2020
• Docket: 19A-CR-2825
• 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 May 29 2020, 11:07 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 James A. Hanson Caroline G. Templeton Fort Wayne, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Sidney A. Berry, May 29, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2825 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Wendy W. Davis, Appellee-Plaintiff. Judge Trial Court Cause No. 02D04-1604-F4-29

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2825 | May 29, 2020 Page 1 of 6 Statement of the Case [1] Sidney Berry (“Berry”) appeals the aggregate ten-year sentence imposed after a

jury convicted him of Level 4 felony possession of cocaine1 and Class B

misdemeanor possession of marijuana.2 His sole argument is that his sentence

is inappropriate in light of the nature of his offenses and his character.

Concluding that the ten-year sentence is not inappropriate, we affirm the trial

court.

[2] We affirm.

Issue Whether Berry’s sentence is inappropriate.

Facts [3] In March 2016, during a search for officer safety, a Fort Wayne Police

Department detective discovered 10.4 grams of cocaine and 5.5 grams of

marijuana in Berry’s possession. The State charged Berry with Level 4 felony

possession of cocaine and Class B misdemeanor possession of marijuana.

[4] Berry was released on bond but failed to appear in court for a September 2016

hearing. Eighteen-months later, in March 2018, a bail agent learned that Berry

was incarcerated in Ohio for allegedly committing three felony offenses,

1 IND. CODE § 35-48-4-6. 2 I.C. § 35-48-4-11.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2825 | May 29, 2020 Page 2 of 6 including failing to comply with a police officer’s order or signal, tampering

with evidence, and possessing criminal tools.

[5] Berry returned to Indiana, and the jury trial for the two drug possession charges

began in October 2019. At trial, a Fort Wayne Police Department detective

testified that based on his training and experience, 10.4 grams of cocaine was a

large quantity, which represented about 50 individual uses. The jury convicted

Berry of both possession charges.

[6] At Berry’s November 2019 sentencing hearing, a review of Berry’s pre-sentence

investigation report revealed that Berry had a criminal history that included two

prior felony convictions for assault and intimidating a witness or crime victim

and one prior misdemeanor conviction for failing to appear. In addition, Berry

had twice had his probation revoked.

[7] At the end of the sentencing hearing, the trial court found no mitigating factors.

However, the trial court found several aggravating factors, including Berry’s:

(1) prior criminal history that included one misdemeanor and two felony

convictions; (2) probation revocations; and (3) absconsion while on bond,

which showed a disdain for the trial court. The trial court concluded that “all

of the facts and circumstances push[ed] [Berry] above the advisory sentence,”

and sentenced him to ten (10) years in the Department of Correction for the

Level 4 felony, with one (1) year suspended to probation. (Tr. at 206). The

trial court further sentenced Berry to sixty(60) days in the Allen County Jail for

the Class B misdemeanor conviction. Lastly, the trial court ordered the

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2825 | May 29, 2020 Page 3 of 6 sentences for the two convictions to run concurrently to each other, for an

aggregate sentence of ten (10) years.

[8] Berry now appeals his sentence.

Decision [9] Berry argues that his sentence is inappropriate. Indiana Appellate Rule 7(B)

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 of persuading this Court that his

sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

Whether we regard a sentence as inappropriate turns on the “culpability of the

defendant, the severity of the crime, the damage done to others, and myriad

other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d

1219, 1224 (Ind. 2008).

[10] The Indiana Supreme Court has further explained that “[s]entencing is

principally a discretionary function in which the trial court’s judgment should

receive considerable deference.” Id. at 1222. “Such deference should prevail

unless overcome by compelling evidence portraying in a positive light the

nature of the offense (such as accompanied by restraint, regard, and lack of

brutality) and the defendant’s character (such as substantial virtuous traits or

persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122

(Ind. 2015).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2825 | May 29, 2020 Page 4 of 6 [11] When determining whether a sentence is inappropriate, the advisory sentence is

the starting point the legislature has selected as an appropriate sentence for the

crime committed. Childress, 848 N.E.2d at 1081. Here, Berry was convicted of

a Level 4 felony and a Class B misdemeanor. The sentencing range for a Level

4 felony is two (2) to twelve (12) years, and the advisory sentence is six (6)

years. IND. CODE § 35-50-2-5.5. The maximum sentence for a Class B

misdemeanor is one-hundred and eighty (180) days. IND. CODE § 35-50-3-3.

Here, the trial court sentenced Berry to ten years for the Level 4 felony and to

sixty days for the Class B misdemeanor. The trial court further ordered the

sentences to run concurrently to each other, for an aggregate sentence of ten

years.

[12] Regarding the nature of the offense, Berry possessed 10.4 grams of cocaine,

which, according to the detective on the case, constituted fifty individual uses.

He also possessed 5.5 grams of cocaine. Regarding Berry’s character, we note

that he absconded while on bond in this case and agree that his absconsion

showed a disdain for the trial court. A bail agent found Berry incarcerated in

Ohio for allegedly committing three additional felonies. In addition, Berry’s

criminal history includes two felony convictions for assault and intimidating a

witness or a crime victim and a misdemeanor conviction for failing to appear.

Berry’s probation was also revoked two times. Berry’s former contacts with the

law have not caused him to reform himself. See Jenkins v. State, 909 N.E.2d

1080, 1086 (Ind. Ct. App. 2009), trans. denied. Berry has failed to persuade this

Court that his ten-year sentence is inappropriate.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2825 | May 29, 2020 Page 5 of 6 [13] Affirmed.

Bradford, C.J., and Baker, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2825 | May 29, 2020 Page 6 of 6