Derid Becker v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 31 2019, 6:20 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 Kimberly A. Jackson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Megan M. Smith Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Derid Becker, October 31, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-503 v. Appeal from the Noble Circuit Court State of Indiana, The Honorable Michael J. Kramer, Appellee-Plaintiff, Judge Trial Court Cause Nos. 57C01-1712-FD-4 57C01-1712-FD-5 57C01-1712-F6-50

Robb, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-CR-503 | October 31, 2019 Page 1 of 9

Case Summary and Issue [1] While on probation for a prior conviction, Derid Becker was charged with

possession of a hypodermic syringe, a Level 6 felony. Becker was accepted into

the Noble County Problem-Solving Court program (“Drug Court”). Pursuant to

Becker’s involvement in this program, he pleaded guilty to the charge and

sentencing was continued pending his participation. Becker was thereafter

sanctioned by the trial court for a variety of Drug Court violations and was

ultimately terminated from the program. Consequently, the trial court

sentenced Becker to two years imprisonment for possession of a hypodermic

syringe. Becker appeals his sentence, raising one issue for our review: whether

the two-year sentence was inappropriate in light of the nature of the offense and

character of the offender. Concluding Becker’s sentence was not inappropriate,

we affirm.

Facts and Procedural History [2] On November 20, 2012, Becker pleaded guilty to two counts of theft and was

sentenced to a total of two years imprisonment, with the sentence suspended to

probation. Because of an existing sentence, Becker did not begin serving his

probation until June 26, 2017. Four months later, during a probation search of

Becker’s residence, a hypodermic syringe modified for the injection of drugs

was found under his couch. Becker admitted to his probation officer that the

syringe belonged to him. The State filed a notice of probation violation in

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Becker’s theft cases and charged Becker with possession of a hypodermic

syringe, a Level 6 felony. [3] On December 14, 2017, Becker signed a participation agreement for Drug

Court. Becker’s Drug Court participation agreement required Becker, among

other things, to: 1) attend and successfully complete all treatment

recommendations and programs; 2) abstain from alcohol and non-prescribed

drugs; 3) submit to random drug tests; 4) attend four support meetings per week

during phase 1 of Drug Court; and 5) reside at a “half-way facility” and serve

home detention until further court order. Appellant’s Appendix, Volume II at

124-28, 131. If Becker successfully completed Drug Court, the State agreed to

dismiss the pending probation violations against him. [4] Pursuant to this agreement, in December 2017 Becker pleaded guilty to

possession of a hypodermic syringe, a Level 6 felony, and admitted to violating

the terms of his probation in the previous theft cases. The trial court continued

sentencing while Becker participated in the Drug Court program. [5] Over the next six months, the trial court found that Becker repeatedly violated

Drug Court rules, sanctioning him ten times. Violations included missing

required meetings, missing treatment appointments, neglecting to properly

notify home detention officials of his travel plans, taking prescription medicine

more frequently than prescribed, violating basic home detention requirements,

failing to participate in community service as ordered, arriving late for

probation appointments, and demonstrating belligerent behavior. During this

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time period, Becker was also terminated from his half-way facility for behavior

related to these violations. [6] On June 25, 2018, Becker’s probation officer filed a Drug Court Violation

Report alleging that Becker had violated the terms of his Drug Court

participation agreement by being evicted from his half-way facility. The Drug

Court team decided against recommending termination from the Drug Court at

that time and instead recommended that Becker remain in custody until he

could be placed in another half-way house and home detention. The trial court

approved this recommendation. [7] After being released from jail into a new half-way house, Becker continued to

commit violations. These new violations included failing to call the drug screen

line and offering a diluted drug screen. Due to Becker’s repeated and numerous

violations, on December 19, 2019, the Drug Court team recommended that

Becker be terminated from the Drug Court Program. On January 7, 2019, the

trial court revoked Becker’s participation in Drug Court and set a date for

sentencing. [8] During the sentencing hearing, the trial court listed Becker’s criminal history

and the fact he committed the offense while on probation for two other offenses

as aggravating factors. Further, the trial court noted Becker’s numerous Drug

Court violations prevented his participation in the program from being

considered as a mitigating factor and further stated that it could find no other

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mitigating factors. The trial court sentenced Becker to two years imprisonment.

Becker now appeals his sentence.

Discussion and Decision I. Standard of Review [9] We may review and revise criminal sentences pursuant to the authority derived

from Article 7, section 6 of the Indiana Constitution. Indiana Appellate Rule

7(B) empowers us to 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.” In reviewing a

sentence, this court gives deference to the trial court’s sentencing decision

because Rule 7(B) requires us to give “due consideration” to the decision and

we recognize the unique perspective of the trial court in making sentencing

decisions. Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). Such

deference should prevail unless overcome by compelling evidence portraying in

a positive light the nature of the offense and the defendant’s character.

Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Our principal role in Rule

7(B) review is to “leaven the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225

(Ind. 2008). [10] The defendant bears the burden to persuade this court that his or her sentence is

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

look to any factors appearing in the record in making such a determination. Reis

v. State, 88 N.E.3d 1099, 1102 (Ind. Ct. App. 2017). The question under Rule Court of Appeals of Indiana | Memorandum Decision 19A-CR-503 | October 31, 2019 Page 5 of 9

7(B) analysis is “not whether another sentence is more appropriate” but rather

“whether the sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265,

268 (Ind. Ct. App. 2008). Whether a sentence is inappropriate “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 in a given case.”

Cardwell, 895 N.E.2d at 1224.

II. Inappropriate Sentence [11] We begin with the advisory sentence in determining whether a sentence is

inappropriate. Childress, 848 N.E.2d at 1081. The advisory sentence for a Level

6 felony is one year, with a minimum sentence of six months and a maximum

sentence of two and one-half years. Ind. Code § 35-50-2-7(b). Becker was

sentenced to two years, which exceeds the advisory sentence, but falls short of

the maximum sentence allowed.

A. Nature of the Offense [12] Becker was on probation for two separate theft convictions at the time he was

charged with the instant offense. His probation for these crimes had started only

four months prior to the syringe being found under his couch during a routine

probation search. Becker was charged under Indiana Code section 16-42-19-18,

which states: “A person may not possess with intent to: (1) violate this chapter

[dealing with the possession, use, or sale of legend drugs]; or (2) commit an

offense [related to controlled substances] described in IC 35-48-4; a hypodermic

syringe or needle or an instrument adapted for the use of a controlled substance

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or legend drug by injection in a human being.” The statute does not require

actual use of a drug. Rather, it requires the possession of a hypodermic needle

adapted for the use of a controlled substance with the intent to commit a

violation. See Cooper v. State, 171 Ind. App. 350, 359-60, 357 N.E.2d 260, 265

(1976) (stating that in order in to sustain a conviction for possession of

instruments adapted to the use of narcotics, the State must prove that the

defendant was in possession of the instruments and had the intent to use them

illegally). Thus, Becker’s argument that he did not actually use an illegal

substance with the modified syringe, and that this fact should inform our

perspective of the nature of his offense, is moot. Further, the record makes clear

that Becker had, in fact, modified a syringe to get high on Suboxone, Percocet,

methamphetamine, and methadone. Becker’s probation officer stated that

Becker “was using, um, methamphetamine, Suboxone, methadone and

Percocet none of which was prescribed to him[.]” Transcript, Volume 2 at 5.

Becker himself stated that his drugs of choice were opiates and Suboxone and

upon obtaining a valid prescription, “I shot my own prescription.” Id. at 35. [13] The nature of the offense, in light of Becker’s criminal history, demonstrated

disregard for the law, and continued improper use of drugs (prescription or

otherwise) provides an adequate foundation for the Becker’s sentence.

B. Character of the Offender [14] Becker argues that his character supports a reduction in his sentence.

Specifically, Becker states that because he pleaded guilty to this crime, his

sentence should be reduced from the near-maximum. The significance of a Court of Appeals of Indiana | Memorandum Decision 19A-CR-503 | October 31, 2019 Page 7 of 9

guilty plea as a mitigating circumstance varies from case to case. Anglemyer v.

State, 875 N.E.2d 218, 221 (Ind. 2007) (opinion on reh’g). A guilty plea may not

be significantly mitigating when it does not demonstrate the defendant’s

acceptance of responsibility or when the defendant receives a substantial benefit

in return for the plea. Id. [15] Here, the trial court specifically declined to find Becker’s guilty plea a

mitigating factor. We agree that Becker’s guilty plea in this case does not reflect

well upon his character because of his past criminal history, commission of an

offense while on probation, and termination from Drug Court. [16] Becker further argues that his “violations of Drug Court rules are relatively

minor[.]” Amended Brief of the Appellant at 17. Even to the extent this is true,

the regular and recurring violation of Drug Court rules demonstrates Becker is

unable to comply with even the most basic requirements imposed by law. The

Drug Court team excused many of Becker’s violations until it became clear that

he would be unable to comply for any extended period of time. Indeed, Becker

was violating rules “almost on a weekly basis[.]” Tr., Vol. 2 at 228. Becker’s

character does not merit sentence revision under Rule 7(B). [17] Based on the facts and circumstances of this case, we conclude that Becker’s

two-year sentence is not inappropriate in light of the nature of his offense and

his character. We decline to revise it under Appellate Rule 7(B).

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Conclusion [18] For the reasons set forth above, we conclude that a two-year sentence is not

inappropriate in light of Becker’s offense and his character. Therefore, we

affirm. [19] Affirmed.

Mathias, J., and Pyle, J., concur.

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