Court of Appeals of Indiana | Memorandum Decision 34A05-1607-CR-1590 |March 9, 2017 Page 1 of 7

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

Derick W. Steele

Deputy Public Defender

Kokomo, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Jesse R. Drum

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Devon R. Rush,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

March 9, 2017

Court of Appeals Case No.

34A05-1607-CR-1590

Appeal from the 

Howard Superior Court

The Honorable 

William C. Menges, Jr., Judge

Trial Court Cause No.

34D01-1505-F2-485

Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 34A05-1607-CR-1590 |March 9, 2017 Page 2 of 7

[1] Devon R. Rush (“Rush”) pleaded guilty to dealing in a narcotic drug1 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).
Court of Appeals of Indiana | Memorandum Decision 34A05-1607-CR-1590 |March 9, 2017 Page 3 of 7

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 
Court of Appeals of Indiana | Memorandum Decision 34A05-1607-CR-1590 |March 9, 2017 Page 4 of 7

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 
Court of Appeals of Indiana | Memorandum Decision 34A05-1607-CR-1590 |March 9, 2017 Page 5 of 7

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 
Court of Appeals of Indiana | Memorandum Decision 34A05-1607-CR-1590 |March 9, 2017 Page 6 of 7

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.
Court of Appeals of Indiana | Memorandum Decision 34A05-1607-CR-1590 |March 9, 2017 Page 7 of 7

Robb, J., and Barnes, J., concur.