Ervin M. Price v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
FILED
court except for the purpose of establishing Mar 06 2020, 11:07 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Samantha M. Sumcad
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ervin M. Price, March 6, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2358
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable John T. Roach,
Appellee-Plaintiff. Judge
Trial Court Cause No.
84D01-1807-F4-2586
Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2358| March 6, 2020 Page 1 of 4
Case Summary
[1] In September of 2019, Ervin Price pled guilty to four counts of Level 4 felony
cocaine dealing, and the trial court sentenced him to nine years in the Indiana
Department of Correction (“DOC”) with three years suspended to probation.
Price challenges the appropriateness of his placement in the DOC. We affirm.
Facts and Procedural History
[2] On four separate occasions in February of 2018, Price sold cocaine to a
confidential informant, totaling approximately seven grams. On July 26, 2018,
the State charged Price with four counts of Level 4 felony cocaine dealing, four
counts of Level 6 felony cocaine possession, and four counts of Level 6 felony
maintaining a common nuisance. While on pretrial work release, Price
committed new offenses which resulted in charges of Level 2 felony cocaine
dealing, Level 3 felony cocaine possession, Level 2 felony methamphetamine
dealing, Level 4 felony methamphetamine possession, and Level 5 felony
neglect of a dependent, Level 6 felony maintaining a common nuisance, and
Class B misdemeanor marijuana possession. On September 12, 2019, pursuant
to a plea agreement, Price agreed to plead guilty to four counts of Level 4
felony cocaine dealing, and the State agreed to dismiss the remaining charges.
The trial court accepted the plea agreement and sentenced Price to nine years in
the DOC with three years suspended to probation.
Discussion and Decision
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2358| March 6, 2020 Page 2 of 4
[3] Price does not contest the length of his sentence, only his placement in the
DOC. 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.” Ind. Appellate Rule 7(B).
“Sentencing is principally a discretionary function in which the trial court’s
judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d
1219, 1222 (Ind. 2008) (internal citations omitted). Placement is an appropriate
focus for application of our Appellate Rule 7(B) authority. Biddinger v. State, 868
N.E.2d 407, 414 (Ind. 2007). When a defendant challenges his placement,
under Appellate Rule 7(B), the question is not whether another placement is
more appropriate but, rather, whether the given placement is inappropriate.
Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). It is the defendant’s
burden to persuade us that the placement is inappropriate. Id. We have stated
that “it will be quite difficult for a defendant to prevail on a claim that the
placement of his or her sentence is inappropriate,” noting that “trial courts
know the feasibility of alternative placements in particular counties or
communities.” Id.
[4] While not an especially egregious crime, the nature of Price’s offenses does not
necessarily support a less-restrictive placement. Price pled guilty to four counts
of Level 4 felony cocaine dealing after he dealt cocaine on four separate
occasions, which totaled approximately seven grams.
[5] Price’s character also justifies his DOC placement. In Illinois as an adult, Price
has convictions for Class 2 felony unlawful possession of a weapon by a felon,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2358| March 6, 2020 Page 3 of 4
Class 4 felony cannabis possession, Class 4 felony aggravated unlawful use of a
weapon, two counts of Class 4 felony controlled-substance possession, and two
counts of Class A misdemeanor driving on a suspended license. In Indiana as
an adult, Price has been convicted of Class C felony carrying a handgun
without a license. Price also has violated probation multiple times, had an
active warrant issued in Illinois for his arrest for felony escape charges when he
was arrested in this matter, and had his pretrial work release revoked in this
matter after committing new drug-related offenses. Given the nature of his
offenses, lengthy criminal history, violation of pretrial work release, and
continuous disregard for the rule of law, the trial court correctly concluded that
the DOC was the appropriate placement for Price. Price has failed to establish
that his placement was inappropriate.
[6] The judgment of the trial court is affirmed.
Robb, J., and Altice, J., concur.
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