Stephen J. Ullery v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 3, 2017
• Docket: 20A05-1702-CR-350
• 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 03 2017, 8:58 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Alexander L. Hoover Curtis T. Hill, Jr. Nappanee, Indiana Attorney General of Indiana

Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Stephen J. Ullery, July 3, 2017 Appellant-Defendant, Court of Appeals Case No. 20A05-1702-CR-350 v. Appeal from the Elkhart Circuit Court State of Indiana, The Honorable Michael A. Appellee-Plaintiff Christofeno, Judge Trial Court Cause No. 20C01-1512-F5-279

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 20A05-1702-CR-350 | July 3, 2017 Page 1 of 5 [1] Stephen J. Ullery appeals the sentence imposed following his plea of guilty to

Level 5 felony possession of cocaine or a narcotic drug, Level 5 felony

possession of methamphetamine, Level 6 felony unlawful possession of a

syringe, Class A misdemeanor operating with a suspended license, and Class C

felony possession of marijuana. On appeal, Ullery argues that his aggregate

sentence of four years executed in the Department of Correction (DOC) is

inappropriate.

[2] We affirm.

Facts & Procedural History

[3] At approximately 3 a.m. on December 4, 2016, Ullery was pulled over for

driving fifty-four miles per hour in a thirty-five-mile-per-hour zone. Ullery’s

seven-week-old son was in a car seat in the front passenger seat. During the

traffic stop, it was discovered that Ullery’s license was suspended and the officer

detected the odor of burnt marijuana emanating from Ullery’s jacket and

clothing. Ullery’s girlfriend arrived to retrieve their infant son, and when she

removed the car seat, police discovered a broken sunglasses case underneath it.

The case contained a used syringe, a spoon, a straw, and a bag of

methamphetamine. Upon searching the vehicle, police also discovered a bag of

heroin on the front passenger side floorboard. Additionally, Ullery admitted to

police that he had smoked marijuana earlier that day.

[4] As a result of these events, the State charged Ullery as follows: Count I, Level

5 Felony possession of cocaine or a narcotic drug; Count II, Level 5 felony

Court of Appeals of Indiana | Memorandum Decision 20A05-1702-CR-350 | July 3, 2017 Page 2 of 5 possession of methamphetamine; Count III, Level 6 felony unlawful possession

of a syringe; Count IV, Class A misdemeanor operating with a suspended

license; and Count V, Class C misdemeanor possession of paraphernalia.

Ullery pled guilty as charged and received an aggregate sentence of four years

executed in the DOC. Ullery now appeals.

Discussion & Decision

[5] On appeal, Ullery argues that his sentence is inappropriate in light of the nature

of the offenses and his character. Article 7, section 4 of the Indiana

Constitution grants our Supreme Court the power to review and revise criminal

sentences. See Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014), cert. denied, 135

S.Ct. 978 (2015). Pursuant to Ind. Appellate Rule 7, the Supreme Court

authorized this court to perform the same task. Cardwell v. State, 895 N.E.2d

1219, 1224 (Ind. 2008). Per Ind. App. R. 7(B), we may revise a sentence “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.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R.

7). “Sentencing review under Appellate Rule 7(B) is very deferential to the trial

court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “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 20A05-1702-CR-350 | July 3, 2017 Page 3 of 5 [6] Ullery received an aggregate sentence of four years for committing two Level 5

felonies, a Level 6 felony, a Class A misdemeanor, and a Class C misdemeanor.

Ullery does not challenge the length of his sentence. Rather, he challenges his

placement in the DOC, arguing that he should instead have been placed on

home detention or, alternatively, in the Purposeful Incarceration Program.

Although the location where a sentence is to be served is subject to review

under Ind. App. R. 7(B), “it will be quite difficult for a defendant to prevail on a

claim that the placement of his sentence is inappropriate.” King v. State, 894

N.E.2d 265, 267 (Ind. Ct. App. 2008). This is so because a defendant

challenging the placement of his sentence must convince us not that another

placement would be more appropriate, but that his given placement is

inappropriate. Id. at 268.

[7] We are not convinced that Ullery’s placement in the DOC rather than home

detention or Purposeful Incarceration is inappropriate. Considering the nature

of the offense, the record reveals that Ullery had his infant son in the car with

him when he was pulled over at approximately 3 a.m. for exceeding the posted

speed limit by nearly twenty miles per hour. Ullery admitted that he had been

smoking marijuana that day, and police discovered heroin on the floorboard in

front of the child and methamphetamine and drug paraphernalia, including a

used syringe, under the child’s car seat. Nothing about the nature of the offense

suggests that placement in the DOC is inappropriate.

[8] We reach the same conclusion with respect to Ullery’s character. Ullery’s

criminal history includes convictions for Class C felony child molesting and

Court of Appeals of Indiana | Memorandum Decision 20A05-1702-CR-350 | July 3, 2017 Page 4 of 5 Class A misdemeanor possession of marijuana. Ullery also has a very lengthy

history of traffic infractions and two prior probation violations. Moreover,

Ullery failed to appear on two separate occasions in this case, and he was

arrested for new offenses while on pretrial release. In other words, Ullery has

not fared well when offered alternatives to incarceration. As for Ullery’s

argument that he is need of treatment for his substance abuse problem, we note

that he has received treatment in the past but nevertheless continued to abuse

drugs. Finally, although Ullery has professed a desire to be a better father, the

record shows that he has consistently placed his desire for drugs ahead of his

son’s welfare. Ullery’s placement in the DOC was not inappropriate.

[9] Judgment affirmed.

[10] Kirsch, J. and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A05-1702-CR-350 | July 3, 2017 Page 5 of 5