Jerry R. Merrill, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Jerry R. Merrill, Jr. appeals his fifteen-year sentence in the Indiana Department of Correction (DOC), alleging placement in the DOC for the full term of his sentence is inappropriate under Indiana Appellate Rule 7(B). We affirm.

Facts and Procedural History

[2] On February 5, 2023, Merrill was pulled over by a police officer after he completed a turn without using a turn signal. An adult female passenger and a three-year-old child were in the vehicle with Merrill. The officer detected the odor of marijuana coming from the vehicle. Both adults were detained while police searched the vehicle.¹

[3] During the search, police located, among other things, the following items in the vehicle: a metal tin containing ledgers and cash; a container with approximately nineteen grams of marijuana and a glass smoking device; marijuana “roaches” including one beneath the child's car seat; a cookie tin containing marijuana and a smoking device; another tin containing seven baggies of suspected methamphetamine weighing approximately forty grams, five baggies of suspected heroin weighing approximately nine grams, a scale with white residue, a ledger, and a glass smoking device; several other glass smoking devices with burnt residue; and a pill bottle belonging to a person not inside the vehicle containing six pills wrapped in cellophane. Several of these items—including the tin with baggies of suspected methamphetamine and heroin—were located in the rear passenger side of the vehicle next to the three-year-old child.

[4] On February 6, the State charged Merrill with Level 2 felony dealing in methamphetamine, Level 2 felony dealing in a narcotic drug, Level 6 felony unlawful possession of a legend drug or precursor, Class A misdemeanor possession of marijuana, and alleged Merrill was a habitual offender. On January 5, 2024, pursuant to a written agreement, Merrill pleaded guilty to Level 3 felony possession of methamphetamine and to being a habitual offender in exchange for dismissal of his other charges. The plea agreement provided a nine-year sentence for the felony conviction enhanced by six-years for the habitual offender adjudication and left placement to the court's discretion.

[5] Merrill's pre-sentence investigation (PSI) report revealed multiple convictions as follows:

• ten misdemeanors: operating a vehicle while intoxicated (1990), resisting law enforcement (1991), illegal possession of fireworks (1992), public intoxication (1992), battery (1996), disorderly conduct (1996), check deception (1997), visiting a common nuisance (1999), visiting a common nuisance (2003), and visiting a common nuisance (2004); and

• seven felonies: possession of LSD (1991), burglary (1992), theft (1996), battery (2001), dealing in methamphetamine (2004), resisting law enforcement (2004), and possession of methamphetamine (2013).

Merrill also violated probation approximately ten times over the years. He was fifty-five years old at the time of sentencing in the instant case.

[6] At the February 13 sentencing hearing, the State requested Merrill's sentence be executed in the DOC with the ability to petition for modification if he completed Recovery While Incarcerated. Merrill told the court he needed a hip replacement, suffered from “blood clots ․ kidney stones, COPD, [and] sleep apnea,” and he had not received blood-thinning medication while incarcerated. Tr. Vol. II p. 22. Merrill also stated he had a child who was born while he was incarcerated. He requested that the court order his six-year enhancement executed and his nine-year sentence suspended. The trial court ordered Merrill's aggregate fifteen-year sentence executed in the DOC. The court also indicated it would consider a modification after Merrill serves his enhancement and successfully completes Recovery While Incarcerated. Merrill now appeals.

Discussion and Decision

[7] Indiana Appellate Rule 7(B) permits an appellate court to 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.” We give “considerable deference” to the trial court's sentencing decision and attempt only to “leaven the outliers” rather than achieve the “perceived ‘correct’ result” in every case. Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (quoting Cardwell v. State, 895 N.E.2d 1219, 1222, 1225 (Ind. 2008)). A defendant bears the burden of persuading us that his sentence is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007).

[8] Merrill acknowledges that he agreed to a nine-year advisory sentence and the minimum six-year enhancement. However, he challenges the appropriateness of his placement in the DOC for the entirety of his sentence and requests that the nine-year term for his felony conviction be suspended.

[9] Placement for a sentence “is an appropriate focus for application of our review and revise authority.” Fonner v. State, 876 NE.2d 340, 343 (Ind. Ct. App. 2007).

Nonetheless, we note that it will be quite difficult for a defendant to prevail on a claim that the placement of his or her sentence is inappropriate. As a practical matter, trial courts know the feasibility of alternative placements in particular counties or communities. For example, a trial court is aware of the availability, costs, and entrance requirements of community corrections placements in a specific locale. Additionally, 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. A defendant challenging the placement of a sentence must convince us that the given placement is itself inappropriate.

Id. at 343-44. (internal quotations and citations omitted).

[10] Here, Merrill's PSI report revealed that he had previous convictions for at least ten misdemeanors and seven felonies. Among those convictions, at least five were alcohol or drug related. While serving his various sentences, Merrill violated probation at least ten times, resulting in termination of probation on multiple occasions. The trial court ordered Merrill's full sentence to be served in the DOC but encouraged him to participate in “Recovery While Incarcerated ․ with the understanding that upon ․ his completion of that program and completion of the six-year habitual portion of the sentence, that he will be eligible to petition the Court for a modification[.]” Tr. Vol. II p. 26. Considering Merrill's criminal history and historic noncompliance alongside the opportunity for modification afforded by the trial court, we cannot say that his placement in the DOC is inappropriate.

[11] Still, Merrill contends that his offense did not harm any other person. Yet the record reveals that Merrill had significant amounts of drug paraphernalia, ledgers and distribution tools, and several types of drugs in his vehicle when he was arrested. And dozens of grams of methamphetamine and heroin were next to a three-year-old child in the backseat. Merrill presents no compelling evidence that portrays the nature of this offense in a positive light. Lane, 232 N.E.3d at 122 (we defer to the trial court unless “overcome by compelling evidence portraying in a positive light the nature of the offense and the defendant's character.” (internal quotations omitted)).

[12] Merrill also argues that his placement is inappropriate because he has serious health issues whose treatment is limited while incarcerated, he was remorseful for his actions, and his sentence places a substantial hardship on his newborn child. Yet, he offers no explanation about the hardship his child would experience because of his incarceration and his testimony about his health issues is uncorroborated. Even if corroborated, his poor health would not persuade us that his sentence should be revised. E.g., Borroel v. State, 241 N.E.3d 8, 18 (Ind. Ct. App. 2024) (defendant's “advanced age and poor health do not militate in favor of revision[.]”), trans. denied. Merrill's decades-long substance abuse, criminal history, and persistent disregard for the law reflect poorly on his character. See generally Moss v. State, 13 N.E.3d 440, 448 (Ind. Ct. App. 2014) (observing that a criminal history “is a poor reflection of a defendant's character”).

[13] Merrill's aggregate fifteen-year sentence executed in the DOC is not inappropriate in light of the nature of the offense and his character. We affirm.

[14] Affirmed.

FOOTNOTES

1.   The child was secured in a police vehicle during the search. Following the search, the female passenger (who was the child's mother) was arrested, and the Indiana Department of Child Services was contacted to assess and handle custody of the child.

Scheele, Judge.

Brown, J., and Felix, J., concur.