Jeremy E. Grimes v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 22 2019, 9:16 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
Zachary J. Stock Curtis T. Hill, Jr.
Zachary J. Stock, Attorney at Law, P.C. Attorney General of Indiana
Indianapolis, Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeremy E. Grimes, October 22, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-653
v. Appeal from the Hendricks
Superior Court
State of Indiana, The Honorable Rhett Stuard,
Appellee-Plaintiff Judge
Trial Court Cause No.
32D02-1702-F2-1
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-653 | October 22, 2019 Page 1 of 9
[1] Jeremy E. Grimes appeals his placement in the Indiana Department of
Correction (“DOC”) for his ten-year sentence for Level 2 felony dealing in
cocaine. 1 We affirm.
Facts and Procedural History
[2] In a related interlocutory appeal, we explained the underlying facts thus:
At approximately 4:50 a.m. on February 2, 2017, Indiana State
Police Officer Shawn Rawlins and a rookie officer in training
were driving eastbound on I-70 between State Road 267 and
Ronald Reagan Parkway. Officer Rawlins observed a vehicle
traveling westbound on County Road 600 South, a public road
that runs parallel to the highway. The vehicle appeared to be
driving toward a cell phone tower. When Officer Rawlins saw
the vehicle, he thought that “that vehicle should not be there at
that time of the morning.” Tr. Vol. II p. 8. He testified that “at
that time of the morning . . . especially on that access road, there
shouldn’t be any passenger vehicles going down there.” Id. at 29.
Officer Rawlins exited the highway and proceeded to County
Road 600 South to locate the vehicle. Officer Rawlins testified
that he is “very familiar with the area.” Id. at 12. This area is
dark and isolated; Officer Rawlins could “just slightly see the
back side of” a distribution warehouse. Id. at 10. He testified
that there is constant illegal dumping in that area; that he has
found other vehicles parked in and around that area in which
people were engaging in sexual interactions or illicit drug use;
that several times he has observed the lock on the cell phone
tower cut and that copper wire has been ripped out of a different
1
Ind. Code 35-48-4-1(a)(2) (2016).
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nearby cell phone tower; and that there have been confirmed
marijuana grows in the area.
As the officer was driving on County Road 600 South, he
checked the roads that intersect with it. As he came up to
Bountiful Place, which is a public road with one residence on it,
he could see a small dim light that he thought was possibly a
vehicle’s dome light. He directed his spotlight down Bountiful
Place and saw a dark-colored sedan sitting partially on the
roadway. The vehicle appeared to be the same one the officer
had observed from the highway. Officer Rawlins believed that
this vehicle “most likely did not belong to the one resident on
Bountiful Place.” Id. at 28. When the officer turned on his
spotlight, the vehicle turned on its own lights and began moving
forward. Officer Rawlins activated his emergency lights and the
“vehicle stopped pretty much immediately.” Id. at 14. He
testified that the vehicle moved “five to ten feet. . . . [I]t basically
rolled forward and stopped.” Id. at 24. At the time, Officer
Rawlins had not observed any traffic infractions.
Officer Rawlins approached the driver’s side of the vehicle, while
the rookie officer approached the passenger side. Grimes was
sitting in the driver’s seat, and a woman was in the passenger’s
seat. When Grimes rolled down his window, Officer Rawlins
immediately smelled a strong odor of burnt marijuana. Officer
Rawlins requested Grimes’s driver’s license and vehicle
registration and asked what he was doing in the area. Both
Grimes and the passenger appeared to be nervous and shaking,
but their body movements appeared to be somewhat lethargic.
Grimes had difficulty getting his driver’s license out of his wallet.
Initially, he had difficulty explaining why they were in the area,
but then he stated that they were out driving and talking and had
gotten lost, and that they had pulled over to figure out how to get
home. Officer Rawlins began explaining how they could return
to the street they wanted to reach.
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Meanwhile, the rookie officer signaled to Officer Rawlins that
drugs were in plain view in the vehicle. The two officers asked
Grimes and the passenger to exit the vehicle, and the officers
placed them in handcuffs. The officers found marijuana,
cocaine, 2 a scale, and a weapon inside the vehicle.
On February 3, 2017, the State charged Grimes with one count of
Level 2 felony dealing in cocaine, nine counts of Level 2 felony
dealing in a controlled substance, one count of Level 4 felony
dealing in a controlled substance, one count of Level 4 felony
possession of cocaine, eight counts of Level 6 felony possession
of a controlled substance, one count of Level 6 felony dealing in
marijuana, one count of Class B misdemeanor possession of
marijuana, and one count of Class C misdemeanor possession of
paraphernalia.
Grimes v. State, 32A04-1709-CR-2001, slip op. at 1-2 (Ind. Ct. App. 2018) trans.
Denied, (footnote added).
[3] Pursuant to a plea agreement, Grimes pled guilty to one count of Level 2 felony
dealing in cocaine and the State agreed to dismiss all other charges against him.
The plea agreement provided that the trial court must impose at least the
minimum sentence of ten years, with the executed portion of the sentence
capped at six years. The trial court sentenced Grimes to ten years, with four
years suspended to probation.
2
Police also found eleven different kinds of pills.
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Discussion and Decision
[4] Grimes argues his sentence is inappropriate in light of his character and the
nature of his offense. Our standard of review is well settled.
We “may revise a sentence authorized by statute 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.” Ind. Appellate Rule 7(B).
“Although appellate review of sentences must give due
consideration to the trial court’s sentence because of the special
expertise of the trial bench in making sentencing decisions,
Appellate Rule 7(B) is an authorization to revise sentences when
certain broad conditions are satisfied.” Shouse v. State, 849
N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and
quotation marks omitted). “[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 in a
given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
In addition to the “due consideration” we are required to give to
the trial court’s sentencing decision, “we understand and
recognize the unique perspective a trial court brings to its
sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873
(Ind. Ct. App. 2007).
Couch v. State, 977 N.E.2d 1013, 1017 (Ind. Ct. App. 2012), reh’g denied, trans.
denied. The appellant bears the burden of demonstrating his sentence is
inappropriate. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011),
trans. denied.
[5] Grimes does not challenge the length of his sentence. Instead he challenges the
trial court’s decision to order a portion of his sentence executed in the DOC.
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“The place that a sentence is to be served is an appropriate focus for application
of our review and revise authority.” Biddinger v. State, 868 N.E.2d 407, 414
(Ind. 2007). However, it is “quite difficult for a defendant to prevail on a claim
that the placement of his or her sentence is inappropriate.” Fonner v. State, 876
N.E.2d 340, 343 (Ind. Ct. App. 2007). As we explained in Fonner:
As a practical matter, trial courts know the feasibility of
alternative placements in particular counties or communities.
For example, a trial court is aware of the availability, costs, and
entrance requirements of community corrections placements in a
specific locale. Additionally, the question under Appellate Rule
7(B) is not whether another sentence is more appropriate; rather,
the question is whether the sentence imposed is inappropriate. A
defendant challenging the placement of a sentence must convince
us that the given placement is itself inappropriate.
Id. at 343-4.
[6] When considering the nature of the offense, the advisory sentence is the starting
point for determining the appropriateness of a sentence. Anglemyer v. State, 868
N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). A
Level 2 felony has a sentencing range of ten to thirty years with an advisory
sentence of seventeen and one-half years. Ind. Code § 35-50-2-4.5. The trial
court sentenced Grimes to the minimum, ten years, with four years suspended
to probation.
[7] Regarding the nature of his offense, the trial court found nothing extraordinary
about the nature of Grimes’ offense. We note that while Grimes pled guilty to
only one charge, the search of his vehicle revealed eleven different types of pills
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and a firearm, in addition to a large quantity of cocaine. Grimes’ main
argument focuses on his character, which we now address.
[8] To suggest his sentence is inappropriate for his character, Grimes attempts to
analogize his case to Hoak v. State, 113 N.E.3d 1209 (Ind. 2019). In that case,
Hoak pled guilty to Class B felony possession of methamphetamine and the
trial court sentenced her to ten years imprisonment with four years suspended
to probation. Id. On appeal, our Indiana Supreme Court remanded the case
back to the trial court to determine Hoak’s eligibility for substance abuse
treatment in a community correction program based in part on dicta in our
opinion noting “she has yet to receive court-ordered substance abuse treatment”
after committing multiple drug offenses in a short amount of time. Id. (quoting
Hoak v. State, 18A-CR-1094, slip op. at 1 (Ind. Ct. App. 2018), trans. granted).
[9] Subsequent to the Hoak decision, this court discussed the issue of sentencing
individuals to substance abuse programs as an alternative to placement in the
DOC in Shinkle v. State, 129 N.E.3d 212 (Ind. Ct. App. 2019), trans. denied. The
facts of Shinkle are almost identical to those before us. Shinkle pled guilty to
Level 2 felony dealing in methamphetamine and was sentenced to the advisory
sentence for that offense, seventeen and one-half years. Id. at 213. The trial
court ordered three years of Shinkle’s sentence to be served on probation and
the final two years of his incarceration to be served on home detention. Id.
[10] On appeal, Shinkle argued his case should be remanded for resentencing in
order to determine his eligibility for placement in a substance abuse program
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because of our Indiana Supreme Court’s holding in Hoak. We distinguished
Hoak, noting that Hoak’s crime was one of possession, not dealing, which
indicated Shinkle’s increased “culpability.” Id. at 217. Further, when
remanding Hoak, our Indiana Supreme Court specifically quoted the Indiana
Court of Appeals’ opinion, which stated Hoak had not yet received substance
abuse treatment despite years of drug-related offenses. The Shinkle court
distinguished those facts because Shinkle’s trial court considered the possibility
of substance abuse treatment but ultimately determined it inappropriate
considering the circumstances. Id.
[11] The same is true here. Like in Shinkle, Grimes pled guilty to a dealing offense,
not a possession offense. Unlike in Hoak, wherein the trial court did not
consider the possibility of substance abuse treatment, the trial court ordered
Grimes to participate in substance abuse treatment while on probation and to
“take advantage of every program they offer in the DOC.” (Tr. Vol. II at 59.)
The trial court also stated in Grimes’ sentencing order: “Upon successful
completion of the clinically appropriate Substance Abuse Treatment Program
as determined by IDOC, the Court will consider a modification of this
sentence.” (App. Vol. II at 141.) Hoak does not control.
[12] Additionally, regarding his character, while Grimes’ criminal history is not
egregious, he was arrested and convicted of an additional drug charge for a
crime that occurred while he was out on bail for the current charge. As Grimes
received the minimum sentence allowed for his offense, the trial court gave him
multiple avenues to modify the terms of his placement upon successful
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completion of rehabilitative programs, and his sentence was within the
requirements of his plea agreement, we cannot say his placement in the DOC
for at least a portion of his minimum sentence is inappropriate. See Moon v.
State, 110 N.E.3d 1156, 1163 (Ind. Ct. App. 2018) (placement not inappropriate
based on nature of offense, character of offender, and opportunity to seek
rehabilitative treatment).
Conclusion
[13] We cannot say Grimes’ initial placement in the DOC was inappropriate based
on the nature of the offense or his character. Accordingly, we affirm.
[14] Affirmed.
Najam, J., and Bailey, J., concur.
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