Devon R. Rush v. State of Indiana (mem. dec.)
34A05-1607-CR-1590
| Ind. Ct. App. | Mar 9, 2017Background
- On May 20, 2015 police found Devon R. Rush in a car next to a child and a loaded .380 handgun, 22.4g heroin, 48.7g cocaine, and $3,871 in cash; Rush initially lied about ownership.
- Rush was on probation for prior drug offenses at the time and had a lengthy criminal history beginning in adolescence.
- The State charged multiple counts; Rush pleaded guilty to Level 2 felony dealing in a narcotic drug, Level 2 felony dealing in cocaine, and Level 4 felony unlawful possession of a firearm by a serious violent felon; other counts were dismissed.
- The parties left sentencing to the trial court, which found multiple aggravators (prior record, probation at time of offense, dealing despite having young children) and one mitigator (guilty plea entered during trial).
- The court imposed concurrent maximum terms: 30 years for each Level 2 count and 12 years for the Level 4 count, for an aggregate executed term of 30 years.
- Rush appealed under Indiana Appellate Rule 7(B) arguing his 30-year sentence is inappropriate in light of the nature of the offense and his character.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rush's 30-year aggregate sentence is inappropriate under Ind. Appellate Rule 7(B) | State argues sentence is appropriate given drug quantities, loaded firearm, presence of a child, probation status, and extensive criminal history | Rush contends sentence is excessive: offense not the worst, not the worst offender, dealt only to help a family member, and incarceration harms his children; asks for leniency for guilty plea | Court affirmed: sentence not inappropriate — aggravators supported enhanced, mitigator (late plea) carried little weight; trial court discretion respected |
Key Cases Cited
- Corbally v. State, 5 N.E.3d 463 (Ind. Ct. App. 2014) (Appellate Rule 7(B) standard explained)
- King v. State, 894 N.E.2d 265 (Ind. Ct. App. 2008) (clarifies review under Rule 7(B) is not whether another sentence is more appropriate)
- Chappell v. State, 966 N.E.2d 124 (Ind. Ct. App. 2012) (burden on defendant to show sentence inappropriate)
- Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008) (trial court discretion and appellate deference in sentencing; role of appellate review)
- Johnson v. State, 986 N.E.2d 852 (Ind. Ct. App. 2013) (advisory sentence as starting point in assessing nature of offense)
- Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007) (standards for sentencing review and aggravated/mitigating factors)
- Pagdett v. State, 875 N.E.2d 310 (Ind. Ct. App. 2007) (guilty plea entered on eve of trial is less mitigating because State expended resources)