MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                             Jun 06 2019, 7:38 am

court except for the purpose of establishing                                 CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General
Madison, Indiana
                                                         Courtney Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joshua L. Schumacher,                                    June 6, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-30
        v.                                               Appeal from the
                                                         Jennings Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff                                       Jonathan W. Webster
                                                         Trial Court Cause No.
                                                         40C01-1803-F3-4



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-30 | June 6, 2019                     Page 1 of 5
                                          Case Summary
[1]   Joshua L. Schumacher was convicted of two counts of dealing in

      methamphetamine, and the trial court ordered the sentences to be served

      consecutively. Schumacher now appeals, arguing that consecutive sentences

      are inappropriate because the convictions are for nearly identical State-

      sponsored buys. We agree that the sentences should run concurrently, so we

      return this matter to the trial court for the entry of a revised sentencing order

      and abstract of judgment.



                            Facts and Procedural History
[2]   On May 23 and 25, 2017, the North Vernon Police Department used a

      confidential informant to purchase methamphetamine in two separate

      controlled buys from Schumacher. The May 23 buy involved 5.77 grams, and

      the May 25 buy involved 3.41 grams. In both controlled buys, the same

      confidential informant made the arrangements for purchase in the same general

      area.


[3]   Thereafter, the State charged Schumacher with the following: Count 1: Level 3

      felony dealing in methamphetamine between five and ten grams (May 23);

      Count 2: Level 4 felony dealing in methamphetamine less than five grams (May

      25); Count 3: Level 5 felony possession of methamphetamine between five and

      ten grams (May 23); and Count 4: Level 6 felony possession of

      methamphetamine less than five grams (May 25). Following a jury trial,


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-30 | June 6, 2019   Page 2 of 5
      Schumacher was found guilty as charged. The trial court entered judgment of

      conviction on Counts 1 and 2 only and sentenced Schumacher to twelve years

      with two years suspended to probation on Count 1 and eight years with two

      years suspended to probation on Count 2. The court ordered the sentences to

      be served consecutively, for an aggregate term of twenty years, with sixteen

      years to serve and four years suspended to probation.


[4]   Schumacher now appeals his sentence.



                                 Discussion and Decision
[5]   Schumacher contends that his sentence is inappropriate and asks us to reduce it

      pursuant to Indiana Appellate Rule 7(B), which provides that an appellate 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.” Among other

      things, Schumacher argues that his sentence is inappropriate because the trial

      court ordered the sentences on Counts 1 and 2 to run consecutively. The State

      acknowledges that “legal authority exists prohibiting the imposition of

      consecutive sentences for multiple controlled drug buys.” Appellee’s Br. p. 16.

      Indeed, the Indiana Supreme Court held in Beno v. State that consecutive

      sentences for “nearly identical State-sponsored buys” are inappropriate. 581

      N.E.2d 922, 924 (Ind. 1991); see also Eckelbarger v. State, 51 N.E.3d 169, 170

      (Ind. 2016); Gregory v. State, 644 N.E.2d 543, 544 (Ind. 1994), reh’g denied.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-30 | June 6, 2019   Page 3 of 5
[6]   Here, Schumacher sold similar amounts of methamphetamine to the same

      confidential informant within a forty-eight-hour period. Because the State

      sponsored a series of virtually identical offenses, consecutive sentences are

      inappropriate. Therefore, the sentences on Counts 1 and 2 must be run

      concurrently, which will result in a total sentence of twelve years with two years

      suspended to probation.


[7]   To the extent Schumacher would argue that this revised sentence is

      inappropriate, we disagree. The sentencing range for a Level 3 felony is three

      to sixteen years with an advisory term of nine years. Here, the trial court

      sentenced him on Count 1 to twelve years with two years suspended to

      probation, which is an above-advisory sentence.


[8]   Although there is nothing notable about Schumacher’s offenses here, and the

      State acknowledges that Schumacher does not have an extensive criminal

      history, he was previously convicted of a Class C felony burglary for which he

      was sentenced to seven years with three and half years suspended to probation.

      Schumacher ultimately violated the probation stemming from the burglary and

      was sent back to jail. Schumacher also has four misdemeanor convictions

      (operating a motor vehicle without ever receiving a license, illegal consumption

      of an alcoholic beverage, assisting a criminal, and public intoxication) and

      violated the terms of his probation in one of these cases. Given this criminal

      history and failure on probation, the above-advisory sentence in this instance is

      not inappropriate.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-30 | June 6, 2019   Page 4 of 5
[9]    We remand this matter to the trial court for the entry of a revised sentencing

       order and abstract of judgment indicating that the sentences on Counts 1 and 2

       will run concurrently.


[10]   Reversed and remanded.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-30 | June 6, 2019   Page 5 of 5
