Jason H. Bader v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Feb 21 2018, 9:06 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian A. Karle Curtis T. Hill, Jr.
Ball Eggleston, PC Attorney General of Indiana
Lafayette, Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jason H. Bader, February 21, 2018
Appellant-Defendant, Court of Appeals Case No.
79A02-1706-CR-1404
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Randy J. Williams,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79D01-1608-F2-25
Brown, Judge.
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[1] Jason H. Bader appeals his sentence for dealing in methamphetamine, dealing
in a synthetic drug or lookalike substance, and possession of paraphernalia.
Bader raises one issue which is whether his sentence is inappropriate in light of
the nature of the offense and his character. We affirm.
Facts and Procedural History
[2] In the morning of August 18, 2016, law enforcement approached Bader and a
woman while they were seated in the front seats of Bader’s vehicle located in a
Walmart parking lot in order to serve them with court documents. Bader
handed a bag containing methamphetamine to the woman, and the woman
threw the bag out of the window because the police were approaching. The
officers noticed that it smelled as if the vehicle’s occupants had been smoking
synthetic marijuana. The officer confirmed that the woman may have a
warrant, asked her to exit the vehicle, and, after she did so, noticed the bag of
methamphetamine on the ground near his feet and believed she had dropped it.
The bag contained 12.91 grams of methamphetamine. The police further
discovered two bags of a synthetic cannabinoid, one which weighed 21.87
grams and the other 342 grams, a glass pipe with a white crystal residue in it, a
digital scale, a cell phone, and a notebook. Bader told one of the officers that,
“if [they] threw out the meth he would take the spice charges.” Transcript
Volume 2 at 78.
[3] The State charged Bader with: Count I, dealing in methamphetamine as a level
2 felony; Count II, possession of methamphetamine as a level 4 felony; Count
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III, dealing in a synthetic drug or lookalike substance as a level 6 felony; Count
IV, possession of a synthetic drug or lookalike substance as a class A
misdemeanor; Count V, possession of a synthetic drug or lookalike substance
while having a prior conviction as a level 6 felony; and Count VI, possession of
paraphernalia as a class C misdemeanor. A jury found Bader guilty on Counts
I, II, III, and IV, and of possession of paraphernalia as a class C misdemeanor.1
The court found Bader’s history of criminal or delinquent behavior, that he
violated his bond, that he was on probation when he committed the instant
offenses, his history of substance abuse, and that prior attempts at rehabilitation
have been unsuccessful as aggravating factors. It found his work history and
the support of his family and friends as mitigating factors and that the
aggravating factors outweighed the mitigating factors. The court merged Count
II with Count I and Count IV with Count III, vacated Counts II and IV, and
dismissed Count VI. It entered convictions for dealing in methamphetamine as
a level 2 felony under Count I, dealing in a synthetic drug or lookalike
substance as a level 6 felony under Count III, and possession of paraphernalia
as a class C misdemeanor under Count V. Bader was sentenced to twenty-two
years with four years to be served in community corrections and two years
suspended to probation on Count I, two years on Count III, and sixty days on
1
The court’s jury trial minutes indicate that Bader was found guilty of possession of paraphernalia as a class
C misdemeanor under Count V and that, on motion of the State, Count VI was dismissed. The court’s
abstract of judgment also indicates the court entered a conviction for possession of paraphernalia as a class C
misdemeanor under Count V and that the charge for possession of synthetic drug or lookalike substance as a
level 6 felony under Count VI was dismissed.
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Count V all concurrent, for an aggregate sentence of twenty-two years with
sixteen years in the Indiana Department of Correction, four years in
community corrections, and two years suspended to probation.
Discussion
[4] The issue is whether Bader’s aggregate sentence is inappropriate in light of the
nature of the offense and his character. Ind. 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.” Under this rule, the
burden is on the defendant to persuade the appellate court that his or her
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[5] Bader asserts his aggregate sentence is inappropriate and argues that his offense
constitutes a level 2 felony because he possessed two grams more than the ten-
gram threshold, that he “is a far cry from being categorized as a drug ‘king
pin,’” and that he delivered methamphetamine primarily to friends and family
for free. Appellant’s Brief at 10. He further argues that his good character is
evidenced by the support he received from friends, family, and co-workers, that
he has only one prior felony conviction and one prior narcotics-related
conviction which was a misdemeanor, that he has a strong work history, and
that he expressed remorse at sentencing.
[6] The State maintains that Bader was convicted of three crimes, sold
methamphetamine and synthetic marijuana while on probation, tried to
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convince an officer to destroy evidence, and that the police found 12.91 grams
of methamphetamine and over 360 grams of synthetic marijuana. It also argues
that it is not true that Bader primarily delivered methamphetamine for free and
that, even if Bader did give away his product for free, a bad businessman is as
much a dealer as a good one. With respect to Bader’s character, the State
points to his criminal history and argues that he continues to commit crimes
and violate his probation despite prior leniency and that he has had
opportunities to rehabilitate but has refused to help himself.
[7] A person who commits a level 2 felony shall be imprisoned for a term of
between ten and thirty years with the advisory sentence being seventeen and
one-half years, Ind. Code § 35-50-2-4.5; a person who commits a level 6 felony
shall be imprisoned for a term of between six months and two and one-half
years with the advisory sentence being one year, Ind. Code § 35-50-2-7; and a
person who commits a class C misdemeanor shall be imprisoned for a term of
not more than sixty days, Ind. Code § 35-50-3-4.
[8] Our review of the nature of the offenses reveals that Bader possessed, with
intent to deliver, methamphetamine and synthetic cannabinoid and knowingly
or intentionally possessed a glass pipe intended to be used for introducing a
controlled substance into a person’s body. The police discovered 12.91 grams
of methamphetamine and over 360 grams of synthetic cannabinoid as well as a
digital scale. Bader told one of the police officers that he would take spice
charges if the officers would throw out the methamphetamine.
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[9] Our review of the character of the offender reveals that, according to the
presentence investigation report (the “PSI”), Bader’s criminal history includes
theft as a juvenile in 1990, battery as a class B misdemeanor in 1993, public
intoxication as a class B misdemeanor in 1994, operating a vehicle while
intoxicated as a class A misdemeanor in 2001, public intoxication as a class B
misdemeanor in 2007, battery resulting in bodily injury as a class A
misdemeanor in 2008, two counts of domestic battery as class A misdemeanors
in 2013, domestic battery as a class D felony in 2014, possession of a synthetic
drug or lookalike substance as a class A misdemeanor in 2015, and domestic
battery as a class A misdemeanor and unauthorized entry of a motor vehicle as
a class B misdemeanor in 2016. The PSI states that Bader has had fourteen
petitions to revoke probation filed against him, with four pending, and that he
was on probation at the time he committed the instant offenses. He reported
that he has been employed by a laborers union since 1998, and presented
evidence at sentencing that he was part of a local laborers union, worked
consistently since 2000, and worked long hours. The PSI indicates that he
reported first consuming alcohol when he was ten years old and drugs when he
was twelve years old, and he reported extensive prior use of marijuana,
synthetic marijuana, cocaine, crack cocaine, methamphetamine, LSD,
mushrooms, heroin, Xanax, Oxycodone, and Adderall. The PSI provides that,
when asked the role drugs or alcohol played in the instant offenses, Bader
reported “[i]t was all about getting drugs for our addictions, same as every case
I’ve been arrested for.” Appellant’s Appendix Volume 2 at 119. The record
reveals that the court signed an order on March 31, 2017, which states that
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Bader failed a drug screen and tested positive for methamphetamine and his
bond revoked. Bader expressed remorse towards his family and community.
The PSI indicates that his overall risk assessment score using the Indiana risk
assessment system places him in the very high risk to reoffend category. The
probation officer who prepared the PSI recommended that Bader receive a
sentence of twenty-two years with four years served on community corrections
and two years suspended to probation.
[10] After due consideration, we conclude that Bader has not sustained his burden of
establishing that his aggregate sentence is inappropriate in light of the nature of
the offense and his character.
Conclusion
[11] For the foregoing reasons, we affirm Bader’s aggregate sentence.
[12] Affirmed.
Baker, J., and Riley, J., concur.
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