Danny K. Hubbard, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Danny Hubbard (“Hubbard”) appeals the two-year sentence imposed after he pleaded guilty to Level 6 felony failure to return to lawful detention.¹ He argues that his sentence is inappropriate in light of the nature of the offense and his character. Concluding that Hubbard's sentence is not inappropriate, we affirm the trial court's judgment.

[2] We affirm.

Issue

Whether Hubbard's sentence is inappropriate.

Facts

[3] In October 2023, Hubbard, who had been sentenced to community corrections following a conviction for Level 6 felony possession of methamphetamine, failed to return to community corrections after having been granted a temporary leave to go to the hospital. In January 2024, the State charged Hubbard with Level 6 felony failure to return to lawful detention.

[4] In December 2024, Hubbard pleaded guilty, without a plea agreement, to the Level 6 felony charge. Hubbard waived the completion of a pre-sentence investigation report, and the trial court ordered the probation department to complete a records check to determine Hubbard's criminal history.

[5] The records check revealed that thirty-seven-year-old Hubbard has a nineteen-year criminal history that includes felony and misdemeanor convictions in both Indiana and Michigan. Specifically, Hubbard has two Level 6 felony convictions in Indiana for possession of methamphetamine, and he violated probation and community corrections in both of those cases. In addition, Hubbard has a felony conviction in Michigan for breaking and entering, and he violated probation five times in that case. Following the first four violations, the trial court sentenced Hubbard to sobriety programs. Hubbard also has five misdemeanor convictions in Michigan.

[6] The trial court held a sentencing hearing in January 2024. At the hearing, the State pointed out that Hubbard's criminal history includes numerous probation and community corrections violations. The State asked the trial court to sentence Hubbard to an executed sentence in the Department of Correction (“the DOC”).

[7] Hubbard told the trial court that most of his criminal history had been drug-related but that he had been “so clean and sober every day[.]” (Tr. Vol. 2 at 50). The trial court asked Hubbard how long he had been sober, and Hubbard responded that he had been sober for months. He asked the trial court to sentence him to probation.

[8] The trial court told Hubbard that before it pronounced his sentence, the trial court was going to send Hubbard to the probation department for a rapid drug test. The trial court further told Hubbard that the results of the drug test would be “the final piece” in making its sentencing decision. (Tr. Vol. 2 at 54). Hubbard's drug test was positive for methamphetamine.

[9] When Hubbard returned to the courtroom, the trial court found Hubbard's criminal history, including community corrections and probation violations, to be an aggravating factor. The trial court further found as aggravating factors that other sanctions had not been successful in keeping Hubbard from engaging in criminal activities and that Hubbard had not taken advantage of past alternative programs and sanctions. In addition, the trial court found as a mitigating factor that Hubbard had taken responsibility for his actions and pleaded guilty without the benefit of a plea agreement.

[10] Thereafter, the trial court sentenced Hubbard to two (2) years in the DOC. The trial court told Hubbard that it would designate him as “a purposefully incarcerated individual[ ]” and that he would “be afforded the opportunity to submit to some intensive programming” at the DOC. (Tr. Vol. 2 at 58). In addition, the trial court told Hubbard that if he completed that programming and maintained substantially good behavior, there was a very good possibility that the trial court would consider “modify[ing] [him] out[.]” (Tr. Vol. 2 at 58).

[11] Hubbard now appeals his sentence.

Decision

[12] Hubbard argues that his two-year sentence is inappropriate. Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized by statute if, after due consideration of the trial court's decision, we find that the sentence is inappropriate in light of the nature of the offense and the character of the offender. The defendant bears the burden of persuading this Court that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as inappropriate turns on the “culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Sentence modification under Rule 7(B) is reserved for a “rare and exceptional case.” Skeens v. State, 191 N.E.3d 916, 923 (Ind. Ct. App. 2022) (cleaned up).

[13] When determining whether a sentence is inappropriate, the advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081. Here, Hubbard pleaded guilty to a Level 6 felony. The sentencing range for a Level 6 felony is between six (6) months and two and one-half (21/212) years, and the advisory sentence is one (1) year. I.C. § 35-50-2-7(b). Here, the trial court imposed a two-year sentence for Hubbard's Level 6 felony conviction. This sentence is less than the maximum sentence.

[14] Regarding the nature of the offense, we note that Hubbard, who had been sentenced to community corrections following a conviction for Level 6 felony possession of methamphetamine, failed to return to community corrections after having been granted a temporary leave to go to the hospital. Regarding Hubbard's character, we note that Hubbard has a criminal history that spans nearly twenty years and includes multiple felony and misdemeanor convictions that Hubbard committed in two different states. Hubbard's criminal history also includes multiple probation and community corrections violations. Indeed, Hubbard was serving a sentence in community corrections when he committed the offense in this case. Hubbard's former contacts with the law have not caused him to reform his behavior. See Jenkins v. State, 909 N.E.2d 1080, 1086 (Ind. Ct. App. 2009), trans. denied. We further note that at the sentencing hearing, Hubbard told the trial court that he had been sober for months. However, a rapid drug test that Hubbard took that same day was positive for methamphetamine. Hubbard's dishonest statement to the trial court regarding his sobriety shows a disdain for authority.

[15] Based on the nature of the offense and his character, Hubbard has failed to persuade this Court that his two-year sentence is inappropriate. We further note that this is simply not one of those rare and exceptional cases for which a sentence modification under Rule 7(B) is reserved. Therefore, we affirm Hubbard's sentence.

[16] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-44.1-3-4(d).

Pyle, Judge.

Chief Judge Altice and Judge DeBoer concur. Altice, C.J., and DeBoer, J., concur.