MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any
                                                                       Jul 28 2020, 10:32 am
court except for the purpose of establishing
the defense of res judicata, collateral                                     CLERK
                                                                        Indiana Supreme Court
estoppel, or the law of the case.                                          Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Ryan M. Gardner                                           Curtis T. Hill, Jr.
Deputy Public Defender                                    Attorney General of Indiana
Fort Wayne, Indiana
                                                          Justin F. Roebel
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Darron T. Carter,                                         July 28, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2669
        v.                                                Appeal from the Allen Superior
                                                          Court
State of Indiana,                                         The Honorable Wendy W. Davis,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          02D04-1808-F2-40



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2669 | July 28, 2020                   Page 1 of 21
[1]   Darron Carter appeals his convictions and sentence for Level 2 Felony Dealing

      in Heroin,1 Level 3 Felony Dealing in Cocaine,2 Class A Misdemeanor

      Carrying a Handgun Without a License,3 Class A Misdemeanor Resisting Law

      Enforcement,4 Class B Misdemeanor Possession of Marijuana,5 and Class C

      Misdemeanor Operating a Vehicle by an Unlicensed Driver. 6 He argues that (1)

      the trial court erred by allowing Carter to proceed pro se because he did not

      properly waive his right to counsel; (2) the trial court erred by excluding as

      evidence the probable cause affidavit accompanying Carter’s charges; and (3)

      his sentence was inappropriate in light of the nature of the offenses and his

      character. Finding no error and the sentence not inappropriate, we affirm.


                                                     Facts
[2]   On August 13, 2018, Fort Wayne Police Officer Douglas Weaver was

      patrolling around the north side of Fort Wayne. He observed a black Nissan

      with a temporary license plate, ran the plate, and learned that the plate was

      registered to a Ford and had expired on July 1, 2018. Officer Weaver turned on

      his emergency lights and attempted to initiate a traffic stop, but the Nissan kept




      1
          Ind. Code § 35-48-4-1(e).
      2
          I.C. § 35-38-4-1(d).
      3
          Ind. Code § 35-47-2-1.
      4
          Ind. Code § 35-44.1-3-1.
      5
          I.C. § 35-48-4-11.
      6
          Ind. Code § 9-24-18-1.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2669 | July 28, 2020   Page 2 of 21
      driving and turned down another road. Officer Weaver continued following

      and observed the driver lean over his center console, causing the officer to “fear

      that the subject driving the vehicle was either attempting to get a weapon or

      conceal an item.” Tr. Vol. I p. 227. Officer Weaver then activated his siren and

      the vehicle eventually slowed to a stop.


[3]   When Officer Weaver approached the car, he saw Carter in the driver’s seat

      and one passenger in the front passenger seat. When asked for his driver’s

      license, Carter stated he did not have one and instead presented a state

      identification. Carter also told the officer that he was driving the passenger to

      the hospital, but the officer had observed him driving in the opposite direction.

      Throughout the interaction, Carter “wouldn’t make eye contact with [Officer

      Weaver], appeared to be speaking quickly,” and appeared nervous, to the point

      where “his hands were visibly shaking.” Id. at 230. After he confirmed Carter’s

      identity, Officer Weaver also observed that the temporary license plate on the

      Nissan had been altered with marker to change the expiration date to August

      21.


[4]   Next, Officer Weaver ordered Carter to exit the vehicle and conducted a pat-

      down search. During the pat-down search, Officer Weaver felt a hard object in

      Carter’s groin area “that [he] immediately recognized and believed to be a

      barrel of a gun.” Id. at 233. Carter then tensed his body in a way that prevented

      the officer from removing the object. Officer Weaver motioned for another




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2669 | July 28, 2020   Page 3 of 21
      officer to come assist him,7 and despite Carter continuing to tense up and

      refusing to comply with orders, the two officers eventually handcuffed him.

      Once handcuffed, Carter tried reaching into his pants, so the officers moved

      him to the ground to limit his movement. Officers again tried to retrieve the

      object, but Carter “began to forcibly and violently buck his body” and resist the

      officers, continuing to try and reach for the object in his shorts. Id. at 235.

      Officers struck Carter in the upper back and sprayed pepper spray before Carter

      finally complied and allowed officers to remove the object.


[5]   The object removed from Carter’s underwear was a Taurus nine-millimeter

      handgun with a round in the chamber and a fully loaded magazine. Officers

      also recovered a sock holding multiple bags, which contained substances later

      determined to be 21.08 grams of heroin, 3.3 grams of cocaine, and a small

      amount of marijuana. Officers also discovered a “very thick wadding of

      money” in Carter’s pocket, tr. vol. II p. 41, and a plastic baggy with “a large

      amount of US currency in it” in the glovebox of the Nissan, tr. vol. I p. 245.


[6]   On August 17, 2018, the State charged Carter with Level 2 felony dealing in

      cocaine or narcotic drug, Level 5 felony carrying a handgun without a license,

      Class A misdemeanor resisting law enforcement, Class A misdemeanor

      possession of a firearm by a domestic batterer, Class B misdemeanor possession




      7
       At some point between the initiation of the traffic stop and the pat-down search, a second officer had
      arrived on the scene. A third officer arrived once Carter had been moved to the ground and was thrashing
      and resisting officers’ efforts to remove the object from his pants.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2669 | July 28, 2020                  Page 4 of 21
      of marijuana, and Class C misdemeanor operation of a motor vehicle by an

      unlicensed driver. On January 2, 2019, the State filed a motion to add one

      count of Level 3 felony dealing in cocaine or narcotic drug, and the trial court

      granted the motion on January 4, 2019.


[7]   Carter failed to appear for pretrial conferences on each of December 18, 2018,

      January 11, 2019, and January 22, 2019. On July 26, 2019, he was eventually

      brought into court in custody based on a warrant for his failure to appear. At

      that hearing, Carter requested a fast and speedy trial, which was scheduled for

      September 25-26, 2019.


[8]   On September 9, 2019, Carter’s attorney filed a motion to withdraw as counsel,

      citing an “irretrievable breakdown” in the attorney-client relationship.

      Appellant’s App. Vol. II p. 87. At a hearing on September 12, 2019, Carter

      requested to proceed pro se; the trial court granted his request and granted

      counsel’s motion to withdraw. At the hearing, the trial court reviewed for

      Carter the charges against him, some of the possible penalties, and the

      numerous benefits of having an attorney as opposed to proceeding pro se. Tr.

      Vol. I p. 22-23. After doing so, the conversation between the trial court and

      Carter proceeded, in relevant part, as follows:


              THE COURT: . . . What skills and knowledge do you have that
              would be helpful to you if you represent yourself? Have you been
              in the system? Have you had prior cases?


              CARTER: Yes Your Honor.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2669 | July 28, 2020   Page 5 of 21
        THE COURT: All right. So do you feel like you have the skills
        and knowledge to represent yourself?


        CARTER: Um no, but I do understand that [my former attorney
        is] an attorney that I hired. He’s not working for me.


        THE COURT: We are talking—you made a request under the
        sixth amendment to represent yourself. I want to address that.
        Do you still want to move forward with representing yourself?


        CARTER: Yes.


        THE COURT: So do you feel, let me ask you this again, that you
        can do this, and you have the skills and knowledge to do this?


        CARTER: I don’t feel like. I feel like I’m forced in it.


        THE COURT: Feel what?


        CARTER: I’m forced.


        THE COURT: Nope. Nobody is forcing you. You hired
        [counsel]—are you hired?


        [FORMER COUNSEL]: I am Your Honor.


        CARTER: Yes.


        THE COURT: All right. So you hired [counsel]. He is now
        withdrawing from that case. Do you understand that, and you
        want him to withdraw from the case?



Court of Appeals of Indiana | Memorandum Decision 19A-CR-2669 | July 28, 2020   Page 6 of 21
        CARTER: That was his decision so . . .


        THE COURT: No. You have filed in this case a motion for
        ineffective assistance of counsel so I am hearing from your
        lawyer that there has been a breakdown in communication?


        CARTER: Yes.


        THE COURT: I have to rule this morning on your motion—
        well, you filed it pro se, but you are represented, but we are in the
        midst of whatever we are doing this morning.


        CARTER: I would like to proceed pro se.


        THE COURT: Are you sure?


        CARTER: Yes. I am very positive.


        THE COURT: You are going to go in front of a jury, and I am
        going to ask you again . . .


        CARTER: I’m positive.


                                                 ***


        THE COURT: So do you feel like you can do that? You have the
        skills and knowledge to do that?


        CARTER: Like I said like . . .


        THE COURT: You’ve got to speak up real loud.


Court of Appeals of Indiana | Memorandum Decision 19A-CR-2669 | July 28, 2020   Page 7 of 21
        CARTER: I do not feel like that. Like I said, you asked me a
        question. I’m giving you the honest truth.


        THE COURT: Then why in the world would you represent
        yourself?


        CARTER: Because the attorney is not doing nothing for me.


        THE COURT: Are you going to hire—would you like to hire
        another attorney?


        CARTER: Not if it is going to affect my jury trial.


        THE COURT: Not what?


        CARTER: Not if it is going to affect the date of my jury trial.


        THE COURT: Well, typically when a hired lawyer withdraws,
        and I haven’t agreed to the motion yet, but I will tell you that you
        would have to have a lawyer up to speed and ready for jury trial
        on that date. You are incarcerated right now. If you want to stay
        at the Allen County Jail for—I’m setting new trial dates, if you
        were to get a new lawyer, and I would set new trial dates, I am
        into February. You would stay incarcerated until that time if
        that’s what you want to do? I just need you to understand what is
        happening this morning.


        CARTER: I understand.


        THE COURT: All right. So do you still want to proceed pro se . .
        .


        CARTER: Yes.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2669 | July 28, 2020   Page 8 of 21
               THE COURT: Or do you want to hire a lawyer?


               CARTER: I’m proceeding pro se.


       Id. at 23-26.


[9]    The trial court then continued asking Carter questions relating to his ability to

       represent himself. Carter stated that he had been involved in a jury trial in the

       past, he had never studied criminal law, he attended high school until twelfth

       grade but never graduated nor received a GED, 8 and he is able to read and write

       but cannot “become familiar quickly with the rules and procedures and use

       them right away in a pressure situation like at trial.” Id. at 27. When asked if he

       felt like he was a “good speaker” and could “represent himself,” Carter replied,

       “No. Not really.” Id. At the end of this exchange, Carter again repeated to the

       judge that he wished to represent himself and proceed pro se, and the trial court

       permitted him to do so. Id. at 28.


[10]   On September 23, 2019, the State dismissed the charge of possession of a

       firearm by a domestic batterer. At the conclusion of the jury trial held

       September 25-26, 2019, the jury found Carter guilty of all charges. A sentencing

       hearing was held October 18, 2019. At two points during the sentencing

       hearing, Carter made a request for counsel to assist him with that hearing, and




       8
        Although Carter told the trial court that he had not received his GED, the information he reported in the
       presentence investigation shows that he did, in fact, receive his GED in 2010, and even went on to attend Ivy
       Tech Community College for ten months in 2014. Appellant’s App. Vol. III p. 107.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2669 | July 28, 2020                    Page 9 of 21
       the trial court denied the request. The trial court sentenced Carter to an

       aggregate term of twenty-three years with three years suspended. Carter now

       appeals.


                                       Discussion and Decision
[11]   Carter makes three arguments on appeal: (1) the trial court erred by allowing

       Carter to proceed pro se because he did not voluntarily waive his right to

       counsel; (2) the trial court erred by excluding as evidence the probable cause

       affidavit accompanying Carter’s charges; and (3) his sentence was inappropriate

       in light of the nature of the offenses and his character.


                                  I. Waiver of Right to Counsel
[12]   The Sixth Amendment to the United States Constitution protects the

       fundamental right to a fair trial, including the right to counsel.9 Poynter v. State,

       749 N.E.2d 1122, 1125 (Ind. 2001). Implied within the right to counsel is the

       right to self-representation. Drake v. State, 895 N.E.2d 389, 392 (Ind. Ct. App.

       2008). “In recognition that the ‘average defendant does not have the

       professional legal skills to protect himself’ at trial, it is required that a

       defendant’s choice to appear without professional counsel be made

       intelligently.” Poynter, 749 N.E.2d at 1126 (quoting Johnson v. Zerbst, 304 U.S.



       9
         The State correctly notes that Carter also cites to the Indiana Constitution’s right to counsel provision, yet
       provides no independent argument or analysis under the state constitution. As such, any right to counsel
       claim under the Indiana Constitution is waived, and we conduct our analysis only with regards to the
       protections provided by the Sixth Amendment. E.g., Holloway v. State, 69 N.E.3d 924, 931 (Ind. Ct. App.
       2017).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2669 | July 28, 2020                       Page 10 of 21
       458, 462-64 (1938)). Therefore, when a defendant chooses to proceed pro se and

       waives his right to counsel, the trial court should ensure that he is “made aware

       of the dangers and disadvantages of self-representation.” Faretta v. California,

       422 U.S. 806, 835 (1975).


[13]   There are no specifically prescribed set of questions the trial court must ask a

       defendant or specific information it must provide or solicit in advising a

       defendant on the risks of self-representation; rather, the trial court “need only

       come to a considered determination that the defendant is making a voluntary,

       knowing, and intelligent waiver.” Poynter, 749 N.E.2d at 1126. In Poynter, our

       Supreme Court adopted four factors for a reviewing court to consider when

       determining whether a waiver of counsel was done so knowingly, intelligently,

       and voluntarily: “(1) the extent of the court’s inquiry into the defendant’s

       decision, (2) other evidence in the record that establishes whether the defendant

       understood the dangers and disadvantages of self-representation, (3) the

       background and experience of the defendant, and (4) the context of the

       defendant’s decision to proceed pro se.” Id. at 1127-28. “Waiver of the right to

       assistance of counsel may be established based upon the particular facts and

       circumstances surrounding the case, including the background, experience, and

       conduct of the accused.” Taylor v. State, 944 N.E.2d 84, 89 (Ind. Ct. App. 2011).


[14]   Because a trial court is best positioned to evaluate whether a defendant has

       made a knowing and intelligent waiver of the right to counsel, its finding on the

       matter will “most likely be upheld where the judge has made the proper

       inquiries and conveyed the proper information, and reaches a reasoned

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2669 | July 28, 2020   Page 11 of 21
       conclusion.” Drake, 895 N.E.2d at 393 (internal quotations omitted).

       Regardless, on appeal, the trial court’s determination that a defendant validly

       waived the right to counsel is reviewed de novo. A.A.Q. v. State, 958 N.E.2d

       808, 812 (Ind. Ct. App. 2011).


[15]   First, we note that the trial court did, in fact, hold a formal and sufficiently

       thorough inquiry into Carter’s decision to proceed pro se.10 The trial court

       questioned Carter about his prior involvement with the courts, his education,

       his comfort with public speaking, his ability to learn and research applicable

       rules and procedures, and his reading and writing skills. The trial court also

       reviewed the charges against Carter, the myriad of skills and expertise attorneys

       possess and the functions they perform prior to and during trial, and the

       potential consequences of opting to proceed pro se. The trial court warned that

       “deciding not to have an attorney can turn out to be a very bad decision if you

       are not careful” and that even experienced lawyers “almost always . . . decide[]

       to be represented by another lawyer.” Tr. Vol. I p. 24. The trial court did not

       restate the specific penalties associated with Carter’s charges, but it confirmed

       that Carter understood “the range of punishment that applies” and noted that




       10
         Carter does not actually challenge the adequacy of the trial court’s advisements and inquiry into his
       decision to proceed pro se; rather, he primarily contends that the decision to represent himself “was not done
       so voluntarily.” Appellant’s Br. p. 13. Nonetheless, because the determination of whether a waiver of counsel
       depends on a balance of all four of the factors outlined in Poynter and the larger context of the decision to
       proceed pro se, we briefly review the content of the advisements.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2669 | July 28, 2020                   Page 12 of 21
       there “are legal factors that may increase or decrease the sentence from the

       advisory sentence.” Id.


[16]   Next, we do not find anything else in the record that would suggest Carter did

       not understand the dangers or disadvantages of self-representation. In addition

       to the oral advisements and inquiries, the trial court also provided Carter a

       written advisement for self-represented defendants, the contents of which

       largely mirrored the points already covered by the trial court in its conversation

       with Carter at the hearing. See Appellant’s App. Vol. II p. 105-06. After the

       series of questions and warnings the trial court provided to Carter, it went on to

       state that his responses throughout the hearing showed he was “very

       intelligent” and “articulate.” Tr. Vol. I p. 30-31.


[17]   Third, with regards to Carter’s background and experience, he told the trial

       court that he completed the twelfth grade, can read and write, and had been

       involved in a jury trial in the past. We note that Carter informed the trial court

       that he did not feel that he could quickly learn the applicable rules and

       procedures and use them at his upcoming trial, and also repeatedly made

       statements conveying that he lacked confidence in his ability to represent

       himself. See Tr. Vol. I p. 23-27. But there is nothing more in the record

       suggesting Carter may not have had the mental capacity or competence to

       voluntarily or knowingly waive the right to counsel. See, e.g., Faretta, 422 U.S.

       at 836 (stating that a defendant’s “technical legal knowledge, as such, was not

       relevant to an assessment of his knowing exercise of the right to defend

       himself”).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2669 | July 28, 2020   Page 13 of 21
[18]   Lastly, and most importantly in this case, we look to the context in which

       Carter made his decision to proceed pro se. Here, Carter’s decision was

       motivated solely by the desire to preserve his jury trial dates and because he felt

       “forced” to proceed pro se if he wanted to keep those trial dates. Tr. Vol. I p.

       24. His attorney withdrew, and Carter requested to proceed pro se, on

       September 12, 2019, and the jury trial was set for two weeks later, on

       September 25-26, 2019. When asked if he wanted to hire a new attorney, Carter

       specifically stated that he did not want to if doing so would affect the date of his

       jury trial, and the trial court confirmed that it would not be rescheduled until at

       least February if new counsel was retained. Id. at 26-27. When Carter told the

       trial court that he felt “forced” into his decision, the trial court explained that

       “nobody is forcing you.” Id. at 24. Carter nevertheless insisted that because his

       attorney decided to withdraw and because he wanted to maintain his trial dates,

       he wanted to proceed pro se.


[19]   Generally, “[i]f a defendant’s decision to proceed without counsel appears

       tactical, then this factor weighs in favor of finding a knowing and intelligent

       waiver.” Drake, 895 N.E.2d at 395 (citing Poynter, 749 N.E.2d at 1128 n.6).

       However, if the decision is tactical or strategic in nature but is made “without

       the benefit of having all of the pitfalls and dangers of self-representation

       explained” or some even “minimal effort by the trial court” to make sure a

       defendant knows the risks involved with such a decision, then it may weigh

       against finding a knowing and voluntary waiver. Miller v. State, 789 N.E.2d 32,

       38 (Ind. Ct. App. 2003). Here, wanting to preserve a speedy trial date could be


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2669 | July 28, 2020   Page 14 of 21
       considered strategic, but as previously noted, the trial court adequately and

       thoroughly warned Carter about the various advantages of hiring new counsel.


[20]   Further, in Wirthlin v. State, the defendant, like Carter, wanted to proceed pro se

       because his “primary concern was the speed at which he could get . . . matters

       resolved,” believing that “the only way to get the charges resolved quickly was

       to proceed pro se.” 99 N.E.3d 699, 705-06 (Ind. Ct. App. 2018). The defendant

       also expressed much “confusion and uncertainty” throughout the conversation

       with the trial court on his decision to represent himself. Id. at 706. As a result,

       this Court found that Wirthlin’s waiver was not made knowingly, intelligently,

       or voluntarily, and we specifically emphasized that Wirthlin had never made an

       unequivocal statement that he wanted to represent himself and that the trial

       court, when Wirthlin expressed confusion and uncertainty, did not then “take

       the time to probe his thought process and guide him.” Id. In Carter’s case,

       however, although he was uncertain about his abilities to represent himself and

       said he felt forced to do so to preserve his speedy trial dates, he unequivocally

       stated he wanted to proceed pro se, and repeated that sentiment multiple times

       throughout the series of warnings and information the trial court provided him.


[21]   In sum, we find that the balance of the four Poynter factors weighs in favor of a

       voluntary waiver of the right to counsel. Despite Carter stating that he felt

       “forced” into the decision, the trial court clarified for him that he was not,

       asked him multiple times if he wanted an attorney, listed numerous tasks an

       attorney typically performs, warned that Carter would not be given any special

       treatment if he were pro se, and cautioned that even experienced attorneys

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2669 | July 28, 2020   Page 15 of 21
       would not choose self-representation. But even amidst these myriad warnings

       and questioning from the trial court on Carter’s decision to represent himself,

       and amidst statements Carter made in which he firmly doubted his abilities to

       represent himself effectively, he still stated—repeatedly and firmly—the express,

       unequivocal desire to proceed pro se. As such, the trial court properly

       determined that Carter made a voluntary, knowing, and intelligent waiver and

       provided ample information to Carter such that he “made the decision with his

       . . . ‘eyes open.’” Drake, 895 N.E.2d at 397 (quoting Osbourne v. State, 754

       N.E.2d 916, 920-21 (Ind. 2001)).


                                 II. Probable Cause Affidavit
[22]   Next, Carter argues that the trial court committed reversible error when it

       excluded from the evidence the probable cause affidavit filed with his charges.

       The admission or exclusion of evidence is within the trial court’s sound

       discretion and is given great deference on appeal. Blount v. State, 22 N.E.3d 559,

       564 (Ind. 2014). We will reverse a trial court’s ruling on the admission or

       exclusion of evidence only if the decision is clearly against the logic and effect

       of the facts and circumstances or if the trial court has misinterpreted the law. Id.


[23]   At trial, during Carter’s cross-examination of Officer Weaver, Carter sought to

       introduce into evidence a copy of the probable cause affidavit accompanying his

       charges. The State objected on the basis that it was inadmissible hearsay and




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2669 | July 28, 2020   Page 16 of 21
       the trial court sustained the objection, telling Carter that he was “welcome to

       utilize it to cross examine him, but it can’t go into evidence.” Tr. Vol. II p. 11. 11


[24]   Carter argues that the affidavit falls under an exception to the rule against

       hearsay under Indiana Evidence Rule 803(8)(B)(i), which provides an exception

       for “investigative reports by police and other law enforcement personnel . . .

       when offered by an accused in a criminal case.” But this Court has previously

       held that a probable cause affidavit constitutes inadmissible hearsay under this

       rule because the document, rather than being a true investigative report, is

       prepared “for advocacy purposes or in anticipation of litigation”—that is, the

       “primary purposes” of probable cause affidavits are “to set forth the facts upon

       which an arrest was made so that the court can determine the lawfulness of the

       arrest and to provide the State with information needed to bring charges against

       the accused.” Rhone v. State, 825 N.E.2d 1277, 1284 (Ind. Ct. App. 2005).

       Because of these underlying purposes, probable cause affidavits “often contain

       highly prejudicial statements,” Kirk v. State, 974 N.E.2d 1059, 1074 (Ind. Ct.

       App. 2012), designed to persuade judicial officers that an arrest was justified,

       Rhone, 825 N.E.2d at 1284. Therefore, the facts presented in a probable cause

       affidavit pose the type of risk of unreliability that the rule against hearsay is




       11
          As an initial matter, the State argues that Carter waived this issue because he failed to make a proper offer
       of proof demonstrating the affidavit’s relevance and grounds for admissibility, thereby failing to preserve the
       exclusion issue for appellate review. See Guillen v. State, 829 N.E.2d 142, 145 (Ind. Ct. App. 2005). We agree
       that Carter failed to make the proper offer of proof after the trial court excluded the evidence, see tr. vol. II p.
       11-12, but in the interest of resolving issues on the merits, we opt to briefly review it here.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2669 | July 28, 2020                          Page 17 of 21
       designed to protect against. Tate v. State, 835 N.E.2d 499, 509 (Ind. Ct. App.

       2005).


[25]   In light of the above, we conclude that the trial court properly excluded the

       probable cause affidavit from evidence. Furthermore, although Carter claims

       the exclusion prevented him from using the affidavit for impeachment purposes,

       the trial court still permitted him to read the relevant portion of the affidavit

       into the record for that purpose. See Tr. Vol. II p. 11-12. Carter read aloud a

       statement regarding Officer Weaver’s observation of a large bulge of cash in

       Carter’s pocket, and Officer Weaver confirmed that he made that statement in

       the affidavit. Carter has failed to show that the remainder of the probable cause

       affidavit should have been introduced for any other purpose.


                                III. Sentence Appropriateness
[26]   Lastly, Carter argues that the sentence imposed by the trial court was

       inappropriate in light of the nature of the offenses and his character. Indiana

       Appellate Rule 7(B) provides that this Court may revise a statutorily authorized

       sentence “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.” In conducting this review, “substantial deference”

       must be given to the trial court’s decision, “since the ‘principal role of [our]

       review is to attempt to leaven the outliers,’ and not to achieve a perceived

       ‘correct’ sentence.” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014) (quoting




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2669 | July 28, 2020   Page 18 of 21
       Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal citations

       omitted).


[27]   Carter was convicted of Level 2 felony dealing in heroin, Level 3 felony dealing

       in cocaine, Class A misdemeanor carrying a handgun without a license, Class

       A misdemeanor resisting law enforcement, Class B misdemeanor possession of

       marijuana, and Class C misdemeanor operating a vehicle by an unlicensed

       driver. For a Level 2 felony, Carter faced a term of ten to thirty years, with an

       advisory sentence of seventeen and one-half years. Ind. Code § 35-50-2-4.5. For

       a Level 3 felony, he faced a term of six to twenty years, with an advisory

       sentence of ten years. I.C. § 35-50-2-5. For each Class A misdemeanor, he faced

       a term of up to a year; for a Class B misdemeanor, up to 180 days; and for a

       Class C misdemeanor, up to 60 days. I.C. §§ 35-50-3-2, -3, -4. The trial court

       sentenced Carter to twenty-three years for dealing in heroin, with three years

       suspended, and concurrent sentences on the remaining counts.


[28]   With respect to the nature of the offenses, we agree with the State that the

       offenses were “particularly egregious.” Appellee’s Br. p. 19. Carter attempted to

       retrieve his hidden gun while resisting law enforcement, and refused to

       cooperate with orders to the point where he was “forcibly and violently

       buck[ing] his body” even after being placed on the ground. Tr. Vol. I p. 234.

       Officers resorted to striking him in the back and then spraying pepper spray

       before Carter finally stopped resisting. He also lied about having anything

       hidden in his pants when asked by officers, even though the officers had already

       felt the barrel of the gun in the groin area. See id. at 233. We also note that the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2669 | July 28, 2020   Page 19 of 21
       amount of drugs recovered from Carter—21.08 grams of heroin and 3.3 grams

       of cocaine, along with a large sum of money—was particularly large, and

       amounted to more than double the amount of heroin needed to support the

       dealing charge. See I.C. § 35-48-4-1(e).


[29]   With respect to Carter’s character, we first and foremost take note of his

       extensive criminal history, which includes seven prior misdemeanor convictions

       and four prior felony convictions, three of which are for prior drug related

       offenses.12 Outside of Indiana, he has been arrested for receiving stolen

       property, criminal mischief, driving without proof of insurance, and robbery.

       See Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007) (holding that

       we may consider a defendant’s history of arrests as a reflection of his character).

       Following some of these prior convictions, he had suspended sentences revoked

       three times, had probation revoked once, and was terminated from a reentry

       program. Carter also has a significant history of abusing substances including

       alcohol, marijuana, cocaine, and synthetic marijuana, yet has never sought

       treatment. And in the last five years, Carter has not been gainfully employed

       except for one position at a barbershop for several months in 2017.


[30]   Carter presents no other evidence showing good character that would render his

       sentence inappropriate. He notes that he has two dependents who rely on him




       12
         Carter emphasizes that he has “only” three prior drug-related convictions, and that the rest of his previous
       convictions were unrelated to the present offenses—seemingly suggesting that this criminal history, in the
       aggregate, actually demonstrates his good character such that a sentence revision is warranted. Appellant’s
       Br. p. 18. Simply put, we disagree.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2669 | July 28, 2020                    Page 20 of 21
       for support, and also argues that the imposed sentence leaves him “little to no

       opportunity to engage in any rehabilitative programs” upon his release, even

       though he has an extensive drug abuse problem that began when he was

       sixteen. Appellant’s Br. p. 20. But to the contrary, his extensive criminal

       history—especially the fact that he has already been convicted of multiple drug-

       related offenses, has had probation and suspended sentences revoked, and has

       yet to seek any kind of rehabilitation—instead shows a blatant disinterest in

       changing his behavior or prioritizing the needs of his dependents.


[31]   In sum, we do not find the sentence imposed by the trial court to be

       inappropriate in light of the nature of the offenses or Carter’s character.


[32]   The judgment of the trial court is affirmed.


       Bradford, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2669 | July 28, 2020   Page 21 of 21
