Eric A. Emrich v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 30 2019, 9:03 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian A. Karle Curtis T. Hill, Jr.
Ball Eggleston, PC Attorney General of Indiana
Lafayette, Indiana
Matthew B. Mackenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Eric A. Emrich, July 30, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-278
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Plaintiff Judge
Trial Court Cause No.
79D02-1804-F4-15
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-278 | July 30, 2019 Page 1 of 5
[1] Eric Emrich appeals the ten-year sentence imposed by the trial court after he
pleaded guilty to Level 5 Felony Possession of Methamphetamine, arguing that
the sentence is inappropriate in light of the nature of the offense and his
character. Finding the sentence not inappropriate, we affirm.
[2] On April 11, 2018, the State charged Emrich with Level 4 felony possession of
methamphetamine, Level 5 felony possession of methamphetamine, Level 6
felony possession of a syringe, Level 6 felony counterfeiting, Class B
misdemeanor possession of marijuana, and Class C misdemeanor possession of
paraphernalia. The State also alleged that Emrich was an habitual offender.
Later, on January 2, 2019, the State filed an additional charge of Level 5 felony
possession of methamphetamine with a prior conviction. That same day,
Emrich entered into a guilty plea agreement, pursuant to which he agreed to
plead guilty to the Level 5 felony possession of methamphetamine charge in
exchange for dismissal of the other charges. Additionally, Emrich admitted that
he was an habitual offender due to his past convictions for Level 6 felony
possession of a syringe, Class D felony possession of marijuana with a prior
conviction, Class D felony escape, and Class C felony forgery.
[3] During Emrich’s January 13, 2019, sentencing hearing, Emrich admitted that
he had been in possession of more than one gram of methamphetamine, that he
had yet to pay almost $10,000 in outstanding child support, that he had been
sentenced multiple times to the Department of Correction (DOC), and that he
had committed this specific crime while he was on probation. The plea
agreement established that the executed portion of Emrich’s sentence would be
Court of Appeals of Indiana | Memorandum Decision 19A-CR-278 | July 30, 2019 Page 2 of 5
between five and eight years. Appellant’s App. Vol. II p. 47. The trial court
ultimately sentenced Emrich to an aggregate term of ten years, with seven years
executed in the DOC, one year in community corrections, and two years on
supervised probation. Emrich now appeals.
[4] Emrich argues that the sentence imposed by the trial court is inappropriate in
light of the nature of the offense and his character. Indiana Appellate Rule 7(B)
states that a “Court 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.” The defendant
bears the burden of persuading us that his sentence is inappropriate. Childress v.
State, 848 N.E.2d 1073, 1080 (Ind. 2006). In determining whether the sentence
is inappropriate, we will consider numerous factors such as culpability of the
defendant, the severity of the crime, the damage done to others, and a “myriad
[of] other factors that come to light in a given case.” Cardwell v. State, 895
N.E.2d 1219, 1224 (Ind. 2008). It is our job to leaven the outliers, not to
achieve a perceived “correct” sentencing result. Id. at 1225.
[5] The maximum sentence for a Level 5 felony possession of methamphetamine
conviction is six years, and the minimum sentence is one year. Ind. Code § 35-
50-2-6(b). The advisory sentence is three years. Id. However, for a person found
to be an habitual offender, the trial court may enhance the sentence for a Level
5 felony conviction by two to six years. I.C. § 35-50-2-8(i)(2). Here, the trial
court sentenced Emrich to an aggregate term of ten years, with seven years
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executed in the DOC, one year in community corrections, and two years on
supervised probation.
[6] First, as to the nature of the offense, Emrich was initially charged with more
than just felony possession of more than one gram of methamphetamine.
Specifically, he was also charged with Level 4 felony possession of
methamphetamine, Level 5 felony possession of methamphetamine, Level 6
felony possession of a syringe, Level 6 felony counterfeiting, Class B
misdemeanor possession of marijuana, and Class C misdemeanor possession of
paraphernalia. And though Emrich only admitted to possessing more than one
gram of methamphetamine, the probable cause affidavit alleged that Emrich
had been in possession of 7.52 grams of methamphetamine, more than enough
to be convicted of Level 5 felony possession. Appellant’s App. Vol. II p. 19.
While Emrich claims that no significant harm resulted from his actions, drug
crimes produce deleterious effects to a surrounding community. Therefore, we
find that the nature of Emrich’s offense does not render his sentence
inappropriate.
[7] Next, as to the Emrich’s character, Emrich makes light of the fact that he has
been charged and convicted of numerous drug-related offenses in the past. See
Lindsey v. State, 916 N.E.2d 230, 241 (Ind. Ct. App. 2009) (finding that a
“criminal record alone justifies the sentence imposed by the trial court”).
Emrich has defied the law many times, accumulated numerous convictions—
both felony and misdemeanor—and has not improved his character despite
multiple opportunities for improvement. Emrich even admitted during
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sentencing that he committed this offense while he was on probation for
another conviction. Emrich shows little sign of reform, and while he did plead
guilty, “[a] guilty plea is not automatically a significant mitigating factor.”
Sensback v. State, 720 N.E.2d 1160, 1165 (Ind. 1999). Therefore, we find that
Emrich’s character does not render his sentence inappropriate.
[8] In sum, we will not revise Emrich’s sentence pursuant to Indiana Appellate
Rule 7(B).
[9] The judgment of the trial court is affirmed.
Kirsch, J., and Crone, J., concur.
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