ERVIN v. STATE (2025)

MEMORANDUM DECISION

[1] Daquan Ervin (“Ervin”) was convicted after a jury trial of dealing in cocaine ¹ as a Level 4 felony. The trial court sentenced Ervin to ten years executed in the Indiana Department of Correction (“the DOC”). Ervin appeals and raises the following issues:

I.  Whether the trial court abused its discretion in sentencing Ervin;

II.  Whether Ervin's sentence is inappropriate in light of the nature of the offense and the character of the offender; and

III. Whether the trial court abused its discretion in imposing a public defender fee without conducting a proper indigency hearing.

[2] Although we affirm the sentence of ten years in the DOC, we reverse the imposition of the public defender fee and remand for an indigency hearing.

Facts and Procedural History

[3] On November 5, 2022, Sergeant Nathaniel Raney (“Sgt. Raney”) with the Indiana State Police observed a vehicle with expired plates and initiated a traffic stop in Indianapolis. As he approached the vehicle, he noticed a woman driving the vehicle, and a man, later identified as Ervin, sitting in the front passenger seat.

[4] Sgt. Raney “smelled the odor of marijuana” emanating from the vehicle and noticed that Ervin was not wearing a seatbelt. Tr. Vol. II p. 86. Sgt. Raney asked Ervin to identify himself, and Ervin stated: “[y]ou know, I did nothing wrong.” Id. at 84. Ervin eventually told Sgt. Raney his last name, Ervin, but referred to his first name as “Dejuan” rather than Dequan. Id. Sgt. Raney, believing that he was given a false name, returned to his patrol vehicle and ran the reported information. After a brief investigation, he discovered that Ervin had provided a false name. Thereafter, Sgt. Raney called for assistance and detained Ervin.

[5] After Ervin and the driver were detained, Sgt. Raney searched the vehicle. In the center console, Sgt. Raney discovered plastic baggies, a pill container that had “a plastic bag[gie] in it containing a white rock substance that [he] kn[e]w from [his] training and experience to be cocaine,” a cigar pack with “multiple bag[gie]s of ․ the same white rock-like substance,” and “plant material.” Id. at 86–87. Of the fifteen baggies recovered from the vehicle, one plastic baggie tested positive for cocaine and weighed .71 grams; and nine other plastic baggies also tested positive for cocaine and weighed 1.18 grams total; and the five remaining plastic baggies were not tested but weighed 1.66 grams in total. Sgt. Raney also discovered a handgun “between the driver's seat in the center console in [sic] the floor.” Id. at 87. The handgun was “almost sticking, like it's hanging out from the bottom of the driver's seat along the seat rail[.]” Id. Located next to the handgun, Sgt. Raney discovered a plastic baggie containing plant material.

[6] Thereafter, Sgt. Raney issued Miranda warnings to Ervin and the driver. Sgt. Raney then asked Ervin about the cocaine, and Ervin responded that “he spent $100 for it[,] and he could get $200 for it.” Id. at 103. Ervin also stated that “he had pinched some off.”² Id.

[7] On November 7, 2022, the State charged Ervin with Count I: dealing in cocaine, as a Level 2 felony; Count II: unlawful possession of a firearm by a serious violent felon, as a Level 4 felony; and Count III: dealing in marijuana, as a Class A misdemeanor. A remote initial hearing was conducted on November 10, 2022, wherein Ervin was made aware of the charges against him and requested a public defender. The trial court inquired if Ervin was working and asked Ervin “how much do you bring home every week or every two weeks?” Id. at 4. Ervin responded that he probably makes “about five – five-something.” Id. at 4–5. Thereafter, the trial court appointed a public defender to represent Ervin and assessed the “$100 Public Defender Fund Fee.” Id. at 5.

[8] On May 31, 2024, the State filed a motion to dismiss Count II, unlawful possession of a firearm by a serious violent felon, and Count III, dealing in marijuana, which was granted by the trial court. The same day, the State filed an amended information, charging Ervin with Count I: dealing in cocaine, as a Level 3 felony. A jury trial was held on June 3, 2024. During the jury trial, the State requested that a lesser included instruction be given to the jury. Specifically, the State asked for “dealing cocaine as a Level 4 [f]elony between one and five grams without the firearm.” Id. at 127. Ervin did not object to the proposed instruction, and it was read to the jury. The jury returned a guilty verdict of dealing in cocaine as a Level 4 felony.

[9] On June 27, 2024, the trial court held a sentencing hearing. At the hearing, Ervin testified to having remorse, telling the trial court he was “sorry [for] just being in your jail and your courtroom,” that “[he] should have been better moving in life, should've been focused on being in college and high school,” and “[he] just made a mistake[.]” Id. at 152–53. In regard to Ervin's potential sentence, he ultimately asked for time-served for any executed portion of the sentence. In support of this request, Ervin highlighted his unstable childhood and being raised “in a household of ․ 15 to 16 individuals coming in and out of it.” Id. at 155. Ervin asked the trial court to consider as mitigators his remorse and the lack of harm to others, stating, “he was ultimately convicted of ․ two and a half grams of cocaine, which testimony at trial was well within a user's daily amount[.]” Id. at 156.

[10] At sentencing, the State asked for ten years executed in the DOC. In support of this request, the State highlighted Ervin's contacts with the criminal justice system. As a juvenile, Ervin had true findings for several offenses that would have been felonies if committed by an adult, including theft in 2011, criminal mischief in 2011, theft in 2012, criminal gang activity in 2013, and burglary and theft in 2015. He also had true findings for battery with injury in 2012 and resisting law enforcement in 2014, which would have been misdemeanors if committed by an adult. As an adult, Ervin had multiple convictions that included a Level 5 felony conviction for battery resulting in serious bodily injury and numerous misdemeanor convictions, including invasion of privacy, two counts of battery, resisting law enforcement, and theft. He also had several probation violations and multiple inmate incidents while incarcerated on the instant case.

[11] In sentencing Ervin, the trial court found as aggravating factors that he had a “history of criminal or delinquent behavior” and that “he was unable to complete any sentences outside [the DOC]” and that he had multiple incidents while housed in the Adult Detention Center and the DOC. Id. at 157. As to mitigating factors, the trial court found that “he has expressed remorse or apologized and that his early childhood was rough or hard and that he did not have much supervision[.]” Id.

[12] Ervin was sentenced to ten years executed in the DOC. The hearing did not involve any inquiry into Ervin's financial circumstances. However, at one point, the trial court stated: “I will find him indigent to fees on this case except for the public defender fee.” Id. at 158. After the pronouncement of Ervin's sentence, but before the hearing was concluded, the trial court heard a request from Ervin's counsel, asking the court to consider ordering Purposeful Incarceration ³ or Recovery While Incarcerated. The trial court declined these requests at the conclusion of the hearing but indicated it would recommend Recovery While Incarcerated if Ervin “goes two years with no conduct reports[.]” Id. at 159. Ervin now appeals.

Discussion and Decision

I. Abuse of Discretion

[13] Ervin argues that the trial court abused its discretion in sentencing him because it “fail[ed] to consider the lack of serious harm caused, threatened, or contemplated by the crime.” Appellant's Br. p. 9. Indiana courts have long held that “sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), (citing Smallwood v. State, 773 N.E.2d 259, 263 (Ind. 2002)), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007). An abuse of discretion occurs if the decision is “clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.” Id. When it comes to selecting a sentence, the trial court “must consider all evidence of mitigating factors offered by a defendant[.]” Guzman v. State, 985 N.E.2d 1125, 1133 (Ind. Ct. App. 2013) (citing Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002)). At the same time, “the finding of mitigating factors rests within the court's discretion.” Id. “We review a sentencing court's decision about whether to find a mitigating factor for an abuse of discretion.” Russell v. State, 234 N.E.3d 829, 847 (Ind. 2024) (citing Carter v. State, 711 N.E.2d 835, 838–39 (Ind. 1999)), cert. denied. To establish reversible error premised on the omission of a mitigating factor, the defendant must “establish that the mitigating evidence is both significant and clearly supported by the record.” Guzman, 985 N.E.2d at 1133 (citing Carter, 711 N.E.2d at 838). Notably, however, “[i]f the trial court does not find the existence of a mitigating factor after it has been argued by counsel, the trial court is not obligated to explain why it has found that the factor does not exist.” Anglemyer, 868 N.E.2d at 493 (citing Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993)).

[14] On appeal, Ervin argues the trial court erred by failing to identify “[t]he relative lack of harm of [his] crime” as a significant mitigating factor. Appellant's Br. p. 10. Ervin contends that the record supports this mitigating factor because the officer's testimony “reflected the small-time nature of Ervin's activity” because only a small amount of the drugs Ervin had were intended for sale. Id.

[15] The record reveals that Ervin was convicted of dealing in one to five grams of cocaine as a Level 4 felony. See Ex. Vol. I pp. 19–20, Ind. Code § 35-48-4-1(a)(1), (c)(1). Ervin was in possession of fifteen individualized plastic baggies containing what Sgt. Raney knew, based on his training and experience, to be cocaine. Ten of the baggies were selected for testing and all ten of the baggies tested positive for cocaine and weighed 1.89 grams in total. The untested baggies, which contained an identical “white rock substance,” weighed 1.66 grams in total. Tr. Vol. II p. 87. The record fails to establish that Ervin's actions were inherently less dangerous than what the statute contemplates. The harmful effects of Ervin's crime are no less dangerous than other dealing in cocaine offenses despite that fact that the quantity of the cocaine tested was closer to the lower end of range applicable to a Level four felony. Based on the record presented—in light of Ervin's substantial criminal history—the trial court was within its discretion to conclude this was not a significant mitigating circumstance. See Anglemyer, 868 N.E.2d at 493. Therefore, the trial court's failure to specifically identify Ervin's proffered mitigator as a substantial mitigator was not an abuse of discretion.

II. Inappropriate Sentence

[16] Ervin argues that his ten-year sentence is inappropriate in light of the nature of the offense and the character of the offender. The Indiana Constitution authorizes appellate review and revision of a trial court's sentencing decision. See Ind. Const. art. 7, §§ 4, 6; Jackson v. State, 145 N.E.3d 783, 784 (Ind. 2020). Pursuant to Indiana Appellate Rule 7(B), this court may revise a sentence “if, after due consideration of the trial court's decision, the [c]ourt finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.”

[17] Our review under Appellate Rule 7(B) “should focus on the forest—the aggregate sentence—rather than the trees—consecutive or concurrent, number of counts, or length of the sentence on any individual count.” Wilson v. State, 157 N.E.3d 1163, 1181 (Ind. 2020) (citing Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). The Indiana Supreme Court has long said that “sentencing is principally a discretionary function in which the trial court's judgment should receive considerable deference.” Cardwell, 895 N.E.2d at 1222 (citing Morgan v. State, 675 N.E.2d 1067, 1072 (Ind. 1996)). “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). We note that “[t]he defendant bears the burden of persuading us a revised sentence is warranted.” Shields v. State, 248 N.E.3d 1246, 1276 (Ind. Ct. App. 2024).

[18] When determining whether a sentence is inappropriate, we are mindful that “the advisory sentence is the starting point the Legislature selected as appropriate for the crime committed.” Turkette v. State, 151 N.E.3d 782, 787 (Ind. Ct. App. 2020) (citing Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011)). Here, Ervin was convicted of dealing in cocaine as a Level 4 felony. A conviction for a Level 4 felony carries a sentencing range of two years to twelve years, with an advisory sentence of six years. I.C. § 35-50-2-5.5. Here, the trial court imposed a ten-year sentence, all executed in the DOC.

[19] When reviewing the nature of the offense, this court considers “the details and circumstances” of the commission of the offense. Merriweather v. State, 151 N.E.3d 1281, 1286 (Ind. Ct. App. 2020) (citing Washington v. State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied). The nature of Ervin's criminal conduct reflects that, while he was on probation for another conviction, he was found to be in possession of 1.89 grams of cocaine packaged for sale. The evidence established that, when law enforcement encountered Ervin, he initially refused to provide his identity to Sgt. Raney and provided him with a fictitious name “Dejuan Ervin.” Tr. Vol. II p. 84. Thereafter, during the search of the vehicle, Sgt. Raney located numerous plastic baggies containing a “white rock substance,” a firearm, and plant material. Id. at 87. Despite Ervin admitting to purchasing the cocaine, repackaging it, and “pinch[ing] [off]” some for himself, he nonetheless initially gave law enforcement a fictitious name. Appellant's Br. p. 10. Although Ervin argues that “[his] offense was not particularly bad within the category of Level 4 felony dealing convictions,” ultimately, we conclude that Ervin failed to present compelling evidence that portrays the nature of his offense in a positive light, accompanied by restraint or regard. Appellant's Br. p. 15, see Stephenson, 29 N.E.3d at 122.

[20] When reviewing the character of the offender, his character “is found in what we learn of his life and conduct.” Merriweather, 151 N.E.3d at 1286. Ervin argues that he had an unstable childhood, he lacked adult supervision and discipline, and he has a history of mental health and addiction issues. Furthermore, Ervin argues that he showed remorse for his actions when he was arrested, during his initial hearing, and at his sentencing hearing. While we acknowledge that Ervin readily showed his remorse during different stages of the proceedings against him, we note that he first attempted to thwart the efforts of law enforcement by providing a fictitious name. Ervin's lack of candor during the initial phase of the traffic stop does not place his character in a good light.

[21] Ervin's criminal history and conduct while incarcerated also demonstrated poor character. Ervin was on probation for Class A misdemeanor theft when he was arrested in the present case. Ervin also has extensive contacts with the criminal justice system beginning when he was a juvenile. Ervin was first arrested at the age of ten and his first adjudication was at the age of fourteen. As a juvenile, Ervin had true findings for several offenses that would have been felonies if committed by an adult, including three theft offenses, criminal mischief, criminal gang activity, and burglary. Ervin also had true findings for battery with injury and resisting law enforcement, which would have been misdemeanors if committed by an adult. As an adult, Ervin's criminal history includes ten arrests resulting in three misdemeanors and one felony conviction. While incarcerated, Ervin committed numerous acts of misconduct, including two assaults, one theft, and other rule violations while at the Marion County Jail and over twenty incidents that led to disciplinary action while at the DOC. Ervin was provided the opportunity to complete substance abuse treatment at Community Fairbanks but failed to complete the program. Furthermore, Ervin has had repeated failures to complete drug screens while on probation. Ervin has “never been able to successfully complete a community-based sentence, at least as an adult.” Tr. Vol. II p. 154. Consequently, Ervin has failed to identify “substantial virtuous traits or persistent examples of good character” to support appellate revision of his sentence. Stephenson, 29 N.E.3d at 122.

[22] Therefore, Ervin has failed to demonstrate that his ten-year sentence is inappropriate in light of the nature of his offense and his character. See Shields, 248 N.E.3d at 1276.

III. Indigency Hearing

[23] An abuse-of-discretion standard of review applies to a trial court's sentencing decisions and to the imposition of costs and fees. See Spells v. State, 225 N.E.3d 767, 771 (Ind. 2024) (citing Holder v. State, 119 N.E.3d 621, 624 (Ind. Ct. App. 2019)). “In 2020, the General Assembly enacted a new statute governing indigency determinations in a criminal case.” Spells, 225 N.E.3d at 778. To determine if a person is indigent under the new statutory framework, a trial court “shall consider the following: (1) [t]he person's assets, (2) [t]he person's income, [and] (3) [t]he person's necessary expenses.” I.C. § 35-33-7-6.5(a). Furthermore, “[i]f the court finds that the person is able to pay some of the fines, fees, and court costs, the court may prorate the person's fine, fee, and court costs, and require the person to pay an amount that the person can reasonably afford.” I.C. § 35-33-7-6.5(e). Although, “[w]e note that a defendant may be deemed unable to pay one cost, yet able to pay another.” Spells, 225 N.E.3d at 778.

[24] Ervin argues that “the trial court ordered [him] to pay a $100 public defender fee without adequately inquiring into [his] finances.” Appellant's Br. p. 12. At Ervin's initial hearing, the trial court inquired into Ervin's income, asking Ervin “[b]etween those two jobs, how much do you bring home every week or every two weeks?” Tr. Vol. II p. 4. Ervin responded, stating he makes “about five – five-something” every two weeks. Id. at 4–5. The trial court then appointed a public defender and assessed the public defender fund fee of $100. At the sentencing hearing the trial court found Ervin indigent “to fees on this case except for the public defender fee,” despite failing to conduct an indigency hearing and determining Ervin's ability to pay the fee. Id. at 158.

[25] Ultimately, the trial court failed to conduct an adequate indigency hearing. See I.C. § 35-33-7-6(a), I.C. § 35-33-7-6.5(a) (P.L.140-2020, SEC. 2, eff. July 1, 2020). If “one of the mandatory factors, especially either the defendant's income or necessary expenses, is passed over, or if the inquiry is unreasonably superficial, it may be appropriate to vacate and remand for another hearing.” Spells, 225 N.E.3d at 779. The only indigency hearing conducted by the trial court was at the initial hearing, but that hearing only considered Ervin's income, and not his necessary expenses. We, therefore, conclude that the trial court abused its discretion when it ordered the payment of the $100 public defender fee without having first conducted an indigency hearing that considered all of the mandatory factors under Indiana Code section 35-33-7-6.5(a). We, therefore, reverse the imposition of the public defender fund fee and remand with instructions that the trial court hold an indigency hearing to determine Ervin's ability to pay before assessing the public defender fee.

Conclusion

[26] Ervin failed to establish that the trial court abused its discretion in sentencing him with respect to proffered mitigators. Moreover, Ervin failed to demonstrate that his sentence is inappropriate in light of the nature of the offense and his character. Pursuant to Spells, the trial court erred by assessing the public defender fee without properly determining whether Ervin was indigent. We affirm in part, reverse in part, and remand with instructions for the trial court to hold an indigency hearing prior to assessing a public defender fund fee.

[27] Affirmed in part, reversed in part, and remanded.

FOOTNOTES

1.   Ind. Code § 35-48-4-1(a)(1), (c)(1).

2.   As explained by Sgt. Raney, “pinched off” refers to when “somebody gets a bag[gie] of cocaine or meth or any drug and they're delivering it someplace or they're go[ing] [to] sell it, they pinch some off, that pinch is their keep, and then the rest of it's what they're getting rid of. That's what a pinch-off means in the drug world.” Tr. Vol. II pp. 103–04.

3.   The “[purposeful incarceration program] is a project with Indiana Court Systems, through which the DOC works in collaboration with Judges who can sentence chemically addicted offenders and document that they will consider a sentence modification should the offender successfully complete [a DOC] Therapeutic community.” Sargent v. State, 158 N.E.3d 783, 786 (Ind. Ct. App. 2020) (quoting Marley v. State, 17 N.E.3d 335, 338 n.1 (Ind. Ct. App. 2014)) (internal citations omitted), trans. denied.

Foley, Judge.

Bailey, J. and Bradford, J., concur.