Court of Appeals of Indiana | Memorandum Decision 20A05-1702-CR-350 | July 3, 2017 Page 1 of 5

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this 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

Alexander L. Hoover

Nappanee, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Christina D. Pace

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Stephen J. Ullery,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

July 3, 2017

Court of Appeals Case No.

20A05-1702-CR-350

Appeal from the Elkhart Circuit 

Court

The Honorable Michael A. 

Christofeno, Judge

Trial Court Cause No.

20C01-1512-F5-279

Altice, Judge.

Case Summary
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[1] Stephen J. Ullery appeals the sentence imposed following his plea of guilty to

Level 5 felony possession of cocaine or a narcotic drug, Level 5 felony 

possession of methamphetamine, Level 6 felony unlawful possession of a 

syringe, Class A misdemeanor operating with a suspended license, and Class C 

felony possession of marijuana. On appeal, Ullery argues that his aggregate 

sentence of four years executed in the Department of Correction (DOC) is 

inappropriate. 

[2] We affirm.

Facts & Procedural History

[3] At approximately 3 a.m. on December 4, 2016, Ullery was pulled over for 

driving fifty-four miles per hour in a thirty-five-mile-per-hour zone. Ullery’s 

seven-week-old son was in a car seat in the front passenger seat. During the 

traffic stop, it was discovered that Ullery’s license was suspended and the officer 

detected the odor of burnt marijuana emanating from Ullery’s jacket and 

clothing. Ullery’s girlfriend arrived to retrieve their infant son, and when she 

removed the car seat, police discovered a broken sunglasses case underneath it. 

The case contained a used syringe, a spoon, a straw, and a bag of 

methamphetamine. Upon searching the vehicle, police also discovered a bag of 

heroin on the front passenger side floorboard. Additionally, Ullery admitted to 

police that he had smoked marijuana earlier that day. 

[4] As a result of these events, the State charged Ullery as follows: Count I, Level 

5 Felony possession of cocaine or a narcotic drug; Count II, Level 5 felony 
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possession of methamphetamine; Count III, Level 6 felony unlawful possession 

of a syringe; Count IV, Class A misdemeanor operating with a suspended 

license; and Count V, Class C misdemeanor possession of paraphernalia. 

Ullery pled guilty as charged and received an aggregate sentence of four years 

executed in the DOC. Ullery now appeals.

Discussion & Decision

[5] On appeal, Ullery argues that his sentence is inappropriate in light of the nature 

of the offenses and his character. Article 7, section 4 of the Indiana 

Constitution grants our Supreme Court the power to review and revise criminal 

sentences. See Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014), cert. denied, 135 

S.Ct. 978 (2015). Pursuant to Ind. Appellate Rule 7, the Supreme Court 

authorized this court to perform the same task. Cardwell v. State, 895 N.E.2d 

1219, 1224 (Ind. 2008). Per Ind. App. R. 7(B), 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.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R. 

7). “Sentencing review under Appellate Rule 7(B) is very deferential to the trial 

court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “Such deference 

should prevail unless overcome by compelling evidence portraying in a positive 

light the nature of the offense (such as accompanied by restraint, regard, and 

lack of brutality) and the defendant’s character (such as substantial virtuous 

traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d 

111, 122 (Ind. 2015). 
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[6] Ullery received an aggregate sentence of four years for committing two Level 5 

felonies, a Level 6 felony, a Class A misdemeanor, and a Class C misdemeanor. 

Ullery does not challenge the length of his sentence. Rather, he challenges his 

placement in the DOC, arguing that he should instead have been placed on 

home detention or, alternatively, in the Purposeful Incarceration Program. 

Although the location where a sentence is to be served is subject to review 

under Ind. App. R. 7(B), “it will be quite difficult for a defendant to prevail on a 

claim that the placement of his sentence is inappropriate.” King v. State, 894 

N.E.2d 265, 267 (Ind. Ct. App. 2008). This is so because a defendant 

challenging the placement of his sentence must convince us not that another 

placement would be more appropriate, but that his given placement is 

inappropriate. Id. at 268. 

[7] We are not convinced that Ullery’s placement in the DOC rather than home 

detention or Purposeful Incarceration is inappropriate. Considering the nature 

of the offense, the record reveals that Ullery had his infant son in the car with 

him when he was pulled over at approximately 3 a.m. for exceeding the posted 

speed limit by nearly twenty miles per hour. Ullery admitted that he had been 

smoking marijuana that day, and police discovered heroin on the floorboard in 

front of the child and methamphetamine and drug paraphernalia, including a 

used syringe, under the child’s car seat. Nothing about the nature of the offense 

suggests that placement in the DOC is inappropriate.

[8] We reach the same conclusion with respect to Ullery’s character. Ullery’s 

criminal history includes convictions for Class C felony child molesting and 
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Class A misdemeanor possession of marijuana. Ullery also has a very lengthy 

history of traffic infractions and two prior probation violations. Moreover, 

Ullery failed to appear on two separate occasions in this case, and he was 

arrested for new offenses while on pretrial release. In other words, Ullery has 

not fared well when offered alternatives to incarceration. As for Ullery’s 

argument that he is need of treatment for his substance abuse problem, we note 

that he has received treatment in the past but nevertheless continued to abuse 

drugs. Finally, although Ullery has professed a desire to be a better father, the 

record shows that he has consistently placed his desire for drugs ahead of his 

son’s welfare. Ullery’s placement in the DOC was not inappropriate.

[9] Judgment affirmed.

[10] Kirsch, J. and Mathias, J., concur.