Stephen J. Ullery v. State of Indiana (mem. dec.) ( 2017 )

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