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: ATTORNEYS FOR APPELLEE:

DARREN BEDWELL GREGORY F. ZOELLER

Marion County Public Defender Attorney General of Indiana

Appellate Division

Indianapolis, Indiana GRAHAM T. YOUNGS

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

______________________________________________________

DEMETRIUS SANDERS, )

)

Appellant-Defendant, )

)

vs. ) No. 49A02-1405-CR-301

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Daniel L. Pflum, Senior Judge

Cause No. 49G20-1212-FC-83771

December 9, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge 
2

CASE SUMMARY

On March 5, 2014, following a bench trial, Appellant-Defendant Demetrius Sanders 

was found guilty of Class D felony possession of marijuana. The trial court sentenced 

Sanders to an aggregate three-year term with two years to be executed and one suspended to 

probation. The trial court further divided the executed portion to 240 days in the Department 

of Correction (DOC) and 490 days in Marion County Community Corrections. The trial 

court also ordered Sanders placed on probation for three years from the date of sentencing to 

run concurrently with the executed portion of the sentence. The trial court awarded Sanders 

twenty days of credit for time spent incarcerated prior to sentencing and twenty days of Class 

One credit time. 

On appeal, Sanders argues (1) that his sentence is inappropriate in light of his 

character and the nature of the offense, and (2) that the sentence is not sufficiently clear and 

would require him to serve a sentence greater than the statutory three-year maximum for the 

convicted offense. We find that (1) the trial court’s sentence was not inappropriate and (2) 

the sentencing order is unclear. Accordingly, we affirm in part, reverse in part, and remand 

with instructions. 

FACTS AND PROCEDURAL HISTORY

On December 11, 2012, Sanders was driving a van carrying three passengers. 

Indianapolis Metropolitan Police Officer Justin Henry initiated a traffic stop of Sanders’s 

vehicle after Sanders failed to stop at a stop sign and because the license plate on Sanders’s 

vehicle was significantly obscured. Officer Henry detected the odor of marijuana emanating 
3

from the vehicle and called additional officers for backup. After detaining Sanders and the 

three passengers, Sanders told Officer Henry that there was “weed and a gun in the center 

console of the vehicle.” Tr. p. 11. A search of the vehicle yielded a loaded black handgun

and a total of 60.55 grams of marijuana split into thirty-five plastic bags. 

On December 14, 2012, Appellee-Plaintiff the State of Indiana (the “State”) charged 

Sanders with, Count I, Class D felony possession of marijuana in an amount greater than 

thirty grams, and, Count II, Class A misdemeanor carrying a handgun without a license. 

Because Sanders had a prior handgun conviction, Count II was enhanced to a Class C felony. 

The trial court found Sanders guilty of possession of marijuana and acquitted him of the 

handgun charge. At the April 2, 2014 sentencing hearing, the trial court sentenced Sanders to 

the maximum three-year sentence with two years to be executed and one year suspended. 

The trial court further divided Sanders’s executed sentence, ordering him to serve 240 days in

the DOC and 490 in Marion County Community Corrections. The trial court also ordered 

Sanders to serve three years on probation beginning from the date of sentencing to be served 

concurrently with the executed portion of the sentence. Sanders was granted a total of forty 

days of credit toward his sentence for time spent incarcerated before trial. 

DISCUSSION AND DECISION

Sanders raises two issues on appeal, (1) whether his sentence was inappropriate in 

light of the nature of the offense and his character, and (2) whether the probationary period of 

his sentence exceeds the statutory maximum sentence allowed for a Class D felony. 

I. Whether Sanders’s Sentence Was Inappropriate
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Indiana Appellate Rule 7(B) provides that this court “may revise a sentence authorized 

by statute 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.” “Sentencing is principally a discretionary function in which 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 should be to attempt to leaven the 

outliers ... but not to achieve a perceived ‘correct’ result in each case.” Id. at 1225. The 

burden is on the defendant to persuade this court that the sentence is inappropriate. 

Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 

(Ind. 2007). 

Although there are aspects of the instant offense that lessen and aggravate the severity 

of the crime, the overall nature of the offense justified an enhanced sentence. Sanders was 

found with roughly sixty grams of marijuana. Sanders argues that although sixty grams is 

double the thirty gram threshold for a Class D felony, it is only a fraction of the ten pounds of 

marijuana required to enhance the charge to a Class C felony. Sanders also argues that his 

conduct during Officer Henry’s traffic stop, specifically that he voluntarily told Henry of the 

marijuana and firearm, shows a willingness to cooperate. However, as the trial court 

mentioned, the marijuana was “packaged to deal ... in small little packets ready to give out.” 

Transcript p. 77. Officers found over thirty small Ziploc bags prepackaged with marijuana

in a manner consistent with dealing and distribution. 

Sanders’s character, as evidenced by his criminal history, also supports the imposition 
5

of an enhanced sentence. In addition to a 2001 arrest and adjudication at the age of fifteen

1

, 

Sanders has been arrested eight times since 2007 and convicted of several offenses, including

misdemeanor possession of marijuana and cocaine, misdemeanor carrying a handgun without 

a license, and felony possession of marijuana. The latter of those convictions made Sanders 

ineligible for a suspended sentence in this case. Additionally, despite having never received 

a driver’s license, Sanders has been caught driving three times, including the night he was 

arrested in this case. Sanders offers mitigating factors regarding his character. As the trial 

court acknowledged at the sentencing hearing, Sanders had found steady work since being 

released from the DOC on May 11, 2013. Sanders also noted that he lived with his girlfriend 

and their three minor children whom he helped support. 

In light of the nature of Sanders’s offense and his character, we cannot say that the 

sentence is inappropriate. Class D felonies are punishable by a term of between six months 

and three years, with an advisory sentence of one and one-half years. Ind. Code § 35-50-2-7. 

The trial court did not issue the harshest sentence available. Rather, it crafted a sentence 

which required only two of the three years to be executed and further divided the executed 

portion so that only eight months was served in the DOC. Accordingly, we affirm the trial 

court’s sentencing determination. 

II. Whether the Sentence Exceeded the Statutory Maximum

The maximum sentence for a Class D felony is three years. Ind. Code § 35-50-2-7. 

According to Indiana Code section 35-50-2-2(c), when a trial court imposes probation in lieu 

 

1 Sanders was arrested for what would have been criminal trespass had he been an adult. 
6

of an executed sentence, the period of probation must “end not later than the date that the 

maximum sentence that may be imposed for the felony will expire.” The trial court 

sentenced Sanders to three years of probation to be served from the date of sentencing, i.e. 

concurrently with the executed portion of the sentence. We think it apparent that the 

intention of the trial court was that Sanders would be on probation for one year after 

completing the two-year executed portion of his sentence. However, a literal reading of the 

abstract of judgment would require Sanders to be on probation for three years from the date 

of sentencing in addition to the forty days of credit awarded for his pre-sentencing

incarceration. This would exceed the three-year maximum and violate Indiana Code section 

35-50-2-2(c).

2

 

The Order of Commitment to Community Corrections contains a more significant 

error. The order incorrectly states that “[f]ollowing the completion of the executed portion of 

the sentence, defendant will be placed on probation for 3 years with special conditions set 

forth in the Order of Probation....” Appellant’s App. 87. This suggests that the three-year 

probation period would run consecutive to the executed portion of the sentence which 

directly conflicts with the abstract of judgment and the trial court’s oral sentencing 

instructions. Furthermore, this would violate Indiana Code section 35-50-2-2(c), for 

exceeding the three-year maximum sentence. 

To allay any potential confusion regarding Sanders’s sentence, we remand the case to 

 

2 The State concedes the fact that the sentencing order is unclear in at least this respect and 

recommends remand for clarification to resolve any ambiguities. (Appellee’s Br. 9) 
7

the trial court for clarification. The executed portion of the sentence should remain 

unchanged, 240 days in the DOC followed by 490 days in the Marion County Community 

Correction Program. Upon completion of this executed portion, Sanders will be on probation 

for one year. 

The judgment of the trial court is affirmed in part, reversed in part, and we remand

with instructions.

NAJAM, J., and MATHIAS, J, concur.