Jeremiah A. Henley v. State of Indiana (mem. dec.) ( 2016 )

FILED
MEMORANDUM DECISION Jun 27 2016, 5:48 am
CLERK
Pursuant to Ind. Appellate Rule 65(D), Indiana Supreme Court
Court of Appeals
this Memorandum Decision shall not be and Tax Court
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
Gregory L. Fumarolo Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeremiah A. Henley, June 27, 2016
Appellant-Defendant, Court of Appeals Case No.
02A04-1601-CR-174
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D05-1507-F6-614
Brown, Judge.
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[1] Jeremiah A. Henley appeals his sentence for possession of cocaine or narcotic
drug as a level 6 felony, possession of synthetic drug or synthetic lookalike
substance as a class A misdemeanor, and possession of paraphernalia as a class
C misdemeanor. Henley raises one issue which we revise and restate as
whether his sentence is inappropriate in light of the nature of the offenses and
his character. We affirm.
Facts and Procedural History
[2] On July 2, 2015, at approximately 3:30 p.m., Fort Wayne Police Officer Mark
Bell was in the area of Freimann Square, a park in Fort Wayne, when he
observed Henley near a large fountain in the park. Officer Bell recognized him
from previous investigations, he learned that Henley had an active warrant out
for his arrest, and he arrested him on the outstanding warrant. In conducting a
search incident to arrest, Officer Bell recovered two pipes containing burned
residue from Henley’s coat. He also recovered three clear plastic bags
containing a green plant material that Henley identified as “spice” or synthetic
marijuana, a brown, hand-rolled cigarette containing a green plant material,
and ten capsule-shaped pills later identified as acetaminophen and hydrocodone
bitartrate, a schedule II controlled substance, with an aggregate weight of 4.3
grams. Henley claimed to have a valid prescription for the capsules, but he
never produced one.
[3] On July 9, 2015, the State charged Henley with Count I, possession of cocaine
or narcotic drug (hydrocodone) as a level 6 felony; Count II, possession of a
synthetic drug or synthetic lookalike substance as a class A misdemeanor; and
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Count III, possession of paraphernalia as a class C misdemeanor. On July 27,
2015, Henley, the State, and the trial court signed a Drug Court / Problem-
Solving Court Participation Agreement (the “Participation Agreement”)
whereby Henley would plead guilty to all charges, the pleas would be taken
under advisement pending his successful completion of the Drug Court
Program, and, upon his successful completion, his plea would be vacated and
the case dismissed. The Participation Agreement also stated that if Henley
failed to successfully complete the Drug Court Program, he could be terminated
from the program and the trial court could enter judgment on the pleas of guilty
and sentence Henley accordingly.
[4] On September 8, 2015, the court found Henley in violation of the Drug Court
Program rules, but it decided to return him to the program on September 15,
2015. Then, on September 18, 2015, Henley failed to appear for a hearing and
the trial court issued a warrant for his arrest. On November 16, 2015, the State
filed a verified petition to terminate Henley’s drug court participation, that
same day he admitted to the violation, and the court terminated his
participation in the Drug Court Program.
[5] On December 17, 2015, the court held the sentencing hearing at which Henley
admitted that he was terminated from Thirteen Step House and Freedom
House drug programs and failed to appear at the scheduled court hearing on
September 21, 2015. The court sentenced Henley to two years executed for
Count I, one year executed for Count II, and sixty days executed for Count III,
and it ordered that the sentences be served concurrently but consecutively to his
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sentence in another case. Thus, Henley was ordered to serve an aggregate two-
year sentence in the Department of Correction.
Discussion
[6] The issue is whether Henley’s sentence is inappropriate in light of the nature of
the offenses and his character. Indiana Appellate Rule 7(B) provides that this
Court “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).
Relief is available if, after due consideration of the trial court’s sentencing
decision, this Court finds that in our independent judgment, the sentence is
inappropriate in light of the nature of the offense and the character of the
offender. Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015). “[S]entencing is
principally a discretionary function in which the trial court’s judgment should
receive considerable deference.” Id. (quoting Cardwell v. State, 895 N.E.2d 1219,
1222 (Ind. 2008)). “[A]ppellate review should focus on the forest—the
aggregate sentence—rather than the trees—consecutive or concurrent, number
of counts, or length of the sentence on any individual count.” Cardwell, 895
N.E.2d at 1225. “[W]hether we regard a sentence as appropriate at the end of
the day turns on our sense of the culpability of the defendant, the severity of the
crime, the damage done to others, and myriad other factors that come to light
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in a given case.” Hines, 30 N.E.3d at 1225 (quoting Cardwell, 895 N.E.2d at
1224).
[7] Henley argues that he accepted his responsibility by admitting his guilt as well
as the drug court violations. He asserts that his actions were nonviolent and
that there was no damage done to any third parties. His position is that,
although his “criminal history is extensive,” his felony offenses are nonviolent
in nature and only three of his twelve misdemeanor offenses involved violence.
Appellant’s Brief at 12. He requests that we revise his sentence to an aggregate
term of one and one-half years, including one year suspended and one year of
probation.
[8] Our review of the nature of the offense reveals that Henley was apprehended in
a public park in possession of multiple illegal substances and paraphernalia.
Our review of the character of the offender reveals that he pled guilty pursuant
to the Participation Agreement and was afforded the opportunity to participate
in the Drug Court Program, but he was unsuccessful in completing the
program. The presentence investigation report (“PSI”) reveals that he has an
extensive criminal history. As a juvenile, Henley was found delinquent for
truancy and was reprimanded and released for being a runaway in 1993. In
1994, he was found delinquent for committing theft and was placed on
probation. As an adult, he was convicted of minor in consumption of alcohol
in 1996, theft as a class D felony in 1997, receiving stolen auto parts as a class D
felony in 1998, “Never Receive License” in 2002, operating while suspended in
2003, possession of marijuana in 2004, operating while suspended in 2005,
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operating while suspended in 2006, possession of marijuana as a class D felony
in 2006, and driving while suspended in 2010. Appellant’s Appendix at 63.
Also, in 2012, he was convicted of battery resulting in bodily injury,
interference with reporting a crime, criminal mischief, and domestic battery. In
2015, he was convicted of domestic battery and was ordered to serve 365 days
in the Allen County Jail consecutive to his sentence in this case. In his dealings
with the criminal justice system, Henley has had his suspended sentences
revoked six times and his parole revoked once.
[9] After due consideration, we conclude that Henley has not sustained his burden
of establishing that his sentence of two years, following the termination of his
participation in the Drug Court Program, is inappropriate in light of the nature
of the offenses and his character.
Conclusion
[10] For the foregoing reasons, we affirm Henley’s sentence for possession of
cocaine or narcotic drug as a level 6 felony, possession of synthetic drug or
synthetic lookalike substance as a class A misdemeanor, and possession of
paraphernalia as a class A misdemeanor.
[11] Affirmed.
Baker, J., and May, J., concur.
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