Jason M. Drinsky v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Jul 17 2015, 8:09 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Peter D. Todd Gregory F. Zoeller
Elkhart, Indiana Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jason M. Drinsky, July 17, 2015
Appellant-Defendant, Court of Appeals Case No.
20A03-1501-CR-7
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Evan S. Roberts,
Appellee-Plaintiff Judge
Case No. 20D01-1409-F4-9
Crone, Judge.
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Case Summary
[1] Jason M. Drinsky pled guilty to possessing material capable of causing bodily
injury by an inmate, as a level 4 felony. The trial court sentenced Drinsky to
ten years’ imprisonment with four years suspended. Drinsky appeals, claiming
that his sentence is inappropriate in light of the nature of the offense and his
character. Concluding that Drinsky has not met his burden to show that the
sentence imposed by the trial court is inappropriate, we affirm.
Facts and Procedural History
[2] On July 11, 2014, a law enforcement officer with the Elkhart County Sheriff’s
Department received information that Drinsky, an inmate at the Elkhart
County Correctional Facility, was in possession of a white plastic spoon handle
that had been sharpened to a point. This item is commonly known as a
“shank.” Appellant’s App. at 80. A subsequent search revealed that Drinsky
was carrying the shank in his shirt pocket. Drinsky admitted that he knowingly
possessed the weapon but denied that he intended to use it to harm anyone.
Instead, Drinsky claimed that he intended to give the shank to authorities but
was caught with it before he could do so.
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[3] The State charged Drinsky with level 4 felony possessing material capable of
causing bodily injury by an inmate. 1 Drinsky pled guilty to the offense, as well
as to two other pending charges. Following a sentencing hearing, the trial court
imposed a ten-year sentence, with four years suspended to probation, for the
current offense, to be served consecutive to the sentences imposed on the other
charges. Drinsky appeals only the ten-year sentence.
Discussion and Decision
[4] Drinsky invites this Court to reduce his ten-year sentence pursuant to Indiana
Appellate Rule 7(B), which provides that we may revise a sentence authorized
by statute if, after due consideration of the trial court’s decision, we find that the
sentence “is inappropriate in light of the nature of the offense and the character
of the offender.” 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). “[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
1
Indiana Code Section 35-44.1-3-7 provides:
A person who knowingly or intentionally while incarcerated in a penal facility possesses a
device, equipment, a chemical substance, or other material that:
(1) is used; or
(2) is intended to be used;
in a manner that is readily capable of causing bodily injury commits a Level 5 felony.
However, the offense is a Level 4 felony if the device, equipment, chemical substance, or
other material is a deadly weapon.
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in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). We
recognize that the “principal role of appellate review should be to attempt to
leaven the outliers and to identify some guiding principles for trial courts and
those charged with improvement of the sentencing statutes, but not to achieve a
perceived ‘correct’ result in each case.” Id. at 1225. Indeed, “[t]he question
under Appellate Rule 7(B) is not whether another sentence is more appropriate:
rather, the question is whether the sentence imposed is inappropriate.” King v.
State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).
[5] Our supreme court has stated that when considering the appropriateness of a
sentence, we must consider not only the aggregate length of the sentence
imposed, but also whether a portion of the sentence is ordered suspended.
Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). A level 4 felony has a
sentencing range between two and twelve years, with the advisory sentence
being six years. Ind. Code § 35-50-2-5.5. Drinsky received a ten-year sentence
with four years suspended to probation, resulting in a six-year executed
sentence, the same as the level 4 felony advisory sentence.
[6] Regarding the nature of the offense, Drinsky knowingly while incarcerated
possessed an item that had been fashioned into a deadly weapon: a shank. The
record indicates that when the shank was discovered by authorities, Drinsky
was carrying the shank concealed in his shirt pocket. Undoubtedly, having the
shank in a shirt pocket and readily accessible increases the severity of the
offense. Drinsky downplays his possession of the shank by claiming that he
did not intend to use it to hurt anyone and that, at the time he was caught, he
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was planning to give the weapon to a prison investigator whom he trusted.
However, Drinsky admits that he possessed the deadly weapon for several days
and, despite the opportunity to place the weapon in a prison drop-box made
available to prisoners for the very purpose of disposing of contraband they do
not wish to possess, Drinsky failed to do so. These facts do not convince us
that a six-year executed sentence is inappropriate based upon the nature of
Drinsky’s crime.
[7] Regarding his character, Drinsky does not fare much better. He is clearly no
stranger to conflict, violence, or our criminal justice system. Drinsky has prior
class A misdemeanor convictions for domestic battery and interference with
reporting a crime. He was granted the grace of probation only to then violate it.
At the time Drinsky committed the current crime, he was incarcerated and
facing charges of two counts of class C felony stalking and four counts of class
A misdemeanor invasion of privacy. The probable cause affidavits for those
charges indicate that Drinsky engaged in violent, threatening, and antisocial
behavior toward his ex-wife and her boyfriend. He eventually pled guilty to one
count of class D felony stalking and one count of class A misdemeanor invasion
of privacy. As with his prior history, his most recent criminal history does not
reflect favorably on his character. A sentence reduction is not warranted under
the circumstances.
[8] Drinsky has failed to meet his burden to demonstrate that the sentence imposed
by the trial court is inappropriate based upon the nature of the offense or his
character. Therefore, we affirm his sentence.
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[9] Affirmed.
Brown, J., and Pyle, J., concur.
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