MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 26 2017, 6:24 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
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Todd A. Barr, April 26, 2017
Appellant-Defendant, Court of Appeals Case No.
84A04-1611-CR-2593
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable David R. Bolk,
Appellee-Plaintiff. Judge
Trial Court Cause No.
84D03-1602-F4-502
Barnes, Judge.
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Case Summary
[1] Todd Barr appeals his commitment to the Department of Correction and argues
that placement is inappropriate. We affirm.
Issue
[2] Barr raises one issue for our review, which is whether his commitment to the
Department of Correction is inappropriate.
Facts
[3] On February 18, 2016, Barr reported for an appointment with his parole officer,
Brandon Lovelace, in Vigo County. Barr was on parole after he finished
serving an executed sentence for forgery. Lovelace administered a drug screen,
and Barr tested positive for methamphetamine. Lovelace asked Barr if he had
any contraband in his vehicle, and Barr informed him that he had marijuana
and methamphetamine. Lovelace searched Barr’s vehicle and discovered
substances later identified as methamphetamine and marijuana, a digital scale,
two pipes containing methamphetamine residue, and a “snort tube.” App. Vol.
II p. 74.
[4] The State charged Barr with: (I) dealing in methamphetamine, a Level 4 felony;
(II) dealing in methamphetamine, a Level 5 felony; (III) possession of
methamphetamine, a Level 6 felony; (IV) maintaining a common nuisance, a
Level 6 felony; (V) maintaining a common nuisance, a Level 6 felony; and (VI)
possession of paraphernalia, a Class A misdemeanor. The State also alleged
Barr was an habitual offender. On October 13, 2016, Barr pled guilty to one
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count of dealing in methamphetamine, a Level 5 felony, and admitted to being
an habitual offender.1 Pursuant to the plea agreement, the State dismissed all
the remaining charges against Barr. Barr and the State agreed Barr would serve
four years in the Department of Correction, and that that sentence would be
enhanced by four years, for an aggregate sentence of eight years. Barr and the
State agreed to “argue all other terms of said sentence before the Court.” App.
Vol. II. p. 85. Specifically, the parties argued, “how much and where it’s
executed is up to the Court.” Tr. Vol. V p. 6.
[5] On October 13, 2016, the trial court held Barr’s sentencing hearing. Barr
presented evidence that he qualified to serve the executed portion of his
sentence in a work release program and asked the trial court to place him in
such a program. In its sentencing statement, the trial court noted that Barr was
on parole at the time he committed this offense. The trial court also cited Barr’s
history of felony offenses and his prior, unsuccessful attempt to complete a
“community control” program. Oct. 13, 2016, Tr. p. 23. The trial court
ordered Barr to serve six years of his sentence in the Department of Correction
and suspended the remaining two years of his sentence. Barr now appeals.
1
Barr initially entered a guilty plea on August 11, 2016. The parties subsequently agreed to amend the plea
agreement, however, and, on October 16, 2016, Barr withdrew his original guilty plea and pled guilty
according to the terms of the new plea agreement.
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Analysis
[6] Barr argues that the trial court inappropriately ordered him to serve the
executed portion of his sentence in the Department of Correction rather than on
work release. Indiana Appellate Rule 7(B) 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
offenses and the character of the offender. When considering whether a
sentence is inappropriate, we need not be “extremely” deferential to a trial
court’s sentencing decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.
App. 2007). Still, we must give due consideration to that decision. Id. We also
understand and recognize the unique perspective a trial court brings to its
sentencing decisions. Id. Under this rule, the burden is on the defendant to
persuade the appellate court that his or her sentence is inappropriate. Childress
v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[7] The location where a sentence is to be served is an appropriate
focus for application of our review and revise authority. . . we
note that it will be quite difficult for a defendant to prevail on a
claim that the placement of his sentence is inappropriate. This is
because 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. As a practical matter,
trial courts know the feasibility of alternative placements in
particular counties or communities.
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King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008) (citing Biddinger v. State,
868 N.E.2d 407, 414 (Ind. 2007).
[8] Barr contends the nature of his offense is “minor.” Appellant’s Br. p. 7. Barr is
candid about his “lengthy criminal history,” but argues it “was likely the result
of a controlled substance addiction that could respond well to court-ordered
treatment,” something he says no trial court ever required him to do. Id.
[9] In some circumstances, we might agree with Barr’s assessment that the nature
of his offense is minor. However, in light of Barr’s history of substance-related
offenses, we do not agree that the instant conviction can be so readily
dismissed. Instead, this offense is a continuation of Barr’s decades-long history
of substance offenses and offenses committed while in pursuit of substances.
[10] With regard to the character of the offender, we note that Barr’s criminal
history includes “no fewer than 14 known criminal convictions,” including drug
and alcohol offenses, a driving offense, multiple burglary convictions, theft, and
forgery. App. Vol. II p. 65. We further note that Barr was discharged
unsuccessfully from a “community control” program in Ohio and was unable
to successfully complete the period of parole he was serving when he was
arrested in this case. Id. Barr testified he previously has been enrolled in
substance abuse treatment programs. In 2006, Barr participated in a ninety-day
program at Amethyst House in Bloomington. In approximately 2011, he
participated in a program called Turning Point.
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[11] We credit Barr with attending those programs and stating that he wants to
overcome his addiction. Nonetheless, the fact remains that Barr has a lengthy
criminal history and historically has been unable to complete community-
supervision programs such as the one in which he contends the trial court
should have ordered him to serve his sentence in this case. In light of the
foregoing, we conclude Barr’s commitment to the Department of Correction is
not inappropriate.
Conclusion
[12] Barr’s sentence, which required him to serve six years of his sentence in the
Department of Correction, is not inappropriate. We affirm.
[13] Affirmed.
Baker, J., and Crone, J., concur.
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