MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Mar 09 2017, 7:07 am
court except for the purpose of establishing
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
Derick W. Steele Curtis T. Hill, Jr.
Deputy Public Defender Attorney General of Indiana
Kokomo, Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Devon R. Rush, March 9, 2017
Appellant-Defendant, Court of Appeals Case No.
34A05-1607-CR-1590
v. Appeal from the
Howard Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. William C. Menges, Jr., Judge
Trial Court Cause No.
34D01-1505-F2-485
Kirsch, Judge.
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[1] Devon R. Rush (“Rush”) pleaded guilty to dealing in a narcotic drug 1 as a Level
2 felony, dealing in cocaine2 as a Level 2 felony, and unlawful possession of a
firearm by a serious violent felon (“SVF”),3 a Level 4 felony, and was sentenced
to a thirty-year aggregate sentence. He appeals, raising the following restated
issue: whether his thirty-year sentence is inappropriate in light of the nature of
the offense and the character of the offender.
[2] We affirm.
Facts and Procedural History
[3] On May 20, 2015, the police found Rush in the backseat of a car, sitting next to
a child in a car seat, and in close proximity to a loaded .380 handgun, 22.4
grams of heroin, 48.7 grams of cocaine, and $3,871 in cash. Rush initially lied
to the police and said the gun and drugs were not his, and another passenger
lied and said the gun and drugs were hers. On May 22, 2015, the State charged
Rush with Level 2 felony dealing in a narcotic drug, Level 2 felony dealing in
cocaine, Level 3 felony possession of a narcotic drug, Level 3 felony possession
of cocaine, and Level 4 felony possession of a firearm by a SVF.
[4] The parties entered into a plea agreement in which Rush agreed to plead guilty
to Level 2 felony dealing in a narcotic drug, Level 2 felony dealing in cocaine,
1
See Ind. Code § 35-48-4-1(a)(2), (e)(1).
2
See Ind. Code § 35-48-4-1(a)(2), (e)(1).
3
See Ind. Code § 35-47-4-5(c).
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and Level 4 felony possession of a firearm by a SVF in exchange for the State’s
dismissal of the remaining counts. The parties agreed that sentencing would be
left to the discretion of the trial court, but that the sentences would run
concurrently.
[5] The trial court found Rush’s prior criminal history, the fact that he was on
probation when he committed the present offenses, and his decision to deal
drugs even though he had two young children to take care of as aggravating
factors. Tr. at 30-31. The trial court gave Rush’s guilty plea mitigating weight
since he pleaded guilty “in the midst of trial.” Id. at 31. After finding that the
aggravating and mitigating factors justified an enhanced sentence, the trial court
imposed thirty years for Level 2 felony dealing in a narcotic drug, thirty years
for Level 2 felony dealing in cocaine, and twelve years for Level 4 felony
possession of a firearm by a SVF and ordered the sentences to run concurrently
for an aggregate sentence of thirty years. Rush now appeals.
Discussion and Decision
[6] Under Indiana Appellate Rule 7(B), “we may revise any sentence authorized by
statute if we deem it to be inappropriate in light of the nature of the offense and
the character of the offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct.
App. 2014). 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. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App.
2008). It is the defendant’s burden on appeal to persuade the reviewing court
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that the sentence imposed by the trial court is inappropriate. Chappell v. State,
966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.
[7] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.
2008). The principal role of appellate review is to attempt to “leaven the
outliers.” Id. at 1225. Whether we regard a sentence as inappropriate 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 facts that
come to light in a given case.” Id. at 1224.
[8] Rush argues that the trial court erred in sentencing him and that his thirty-year
sentence is inappropriate in light of the nature of the offense and the character
of the offender. He specifically asserts that the nature of his offense was not the
worst offense and that, although he had a significant criminal history, his
character does not make him the worst offender. To bolster his character, Rush
contends that he was only engaged in dealing drugs to help a family member
bond out of jail and not for selfish personal gain and that his children would be
impacted by his incarceration.
[9] When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence. Johnson v. State, 986
N.E.2d 852, 856 (Ind. Ct. App. 2013) (citing Anglemyer v. State, 868 N.E.2d 482,
494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007)). Here, Rush pleaded
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guilty to one count of Level 2 felony dealing in a narcotic drug, one count of
Level 2 felony dealing in cocaine, and one count of Level 4 felony possession of
a firearm by a SVF. A person who commits a Level 2 felony shall be
imprisoned for a fixed term of between ten and thirty years, with the advisory
sentence being seventeen and one-half years. Ind. Code § 35-50-2-4.5. A
person who commits a Level 4 felony shall be imprisoned for a fixed term of
between two and twelve years, with the advisory sentence being six years. Ind.
Code § 35-50-2-5.5. Here, the trial court sentenced Rush to thirty years for each
of his Level 2 felony convictions and twelve years for his Level 4 felony
conviction and ordered the sentences to be served concurrently for a total
sentence of thirty years.
[10] As to the nature of the offense, police discovered Rush in a car, sitting next to a
baby, and in possession of a loaded handgun, 22.4 grams of heroin, 48.7 grams
of cocaine, and $3,871 in cash. At the time he was found to be possession of
this contraband, he was on probation for dealing drugs. When confronted with
the contraband by the police, Rush lied about possessing the drugs, handgun,
and cash and, instead, allowed the other passengers in the car to take the blame
for the items.
[11] As to Rush’s character, he had a significant criminal history, beginning when he
was a juvenile. He began dealing drugs at the age of sixteen years old, and he
was twenty-eight at the time of sentencing. His criminal history consisted of a
juvenile adjudication for possession of marijuana, a felony conviction for
possession of cocaine or narcotic drug, three misdemeanor convictions for
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operating a vehicle without ever receiving a license, and two Class B felony
convictions for dealing in cocaine. Rush was released from the Community
Transition Program on April 13, 2015 and started dealing drugs again about a
week later. He also began to use cocaine, marijuana, and Lortab since leaving
incarceration. Rush was also still on probation when he committed the instant
offenses on May 20, 2015.
[12] Further, although Rush asserts that he was only dealing drugs to earn money to
help bond his family member out of jail, he does concede that that was not an
excuse for committing a crime. Additionally, Rush’s criminal history
demonstrates that his present offenses were not out of line with his criminal
history. Further, even though Rush had two young children, he chose to
commit crimes instead of reuniting with them after being recently released from
incarceration. Lastly, while Rush claims his sentence is inappropriate because
he should have received leniency due to his guilty plea, the traditional reasons
for granting lenience were not present here because Rush did not plead guilty
until the third day of his jury trial after the trial court and the State had
expended time and resources in trying him. See Pagdett v. State, 875 N.E.2d 310,
317 (Ind. Ct. App. 2007) (“[T]he significance of a guilty plea is lessened if it is
made on the eve of trial after the State has expended resources in preparing its
case.”), trans. denied. We conclude that, in light of the nature of the offense and
the character of the offender, Rush’s sentence is not inappropriate.
[13] Affirmed.
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Robb, J., and Barnes, J., concur.
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