      MEMORANDUM DECISION
                                                                               Jul 06 2015, 10:40 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Mark Leeman                                               Gregory F. Zoeller
      Leeman Law Offices                                        Attorney General of Indiana
      Logansport, Indiana
                                                                Lyubov Gore
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Ronald Lambert,                                           July 6, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                25A03-1412-CR-462
              v.                                                Appeal from the Fulton Superior
                                                                Court

      State of Indiana,                                         The Honorable Wayne E. Steele,
                                                                Judge
      Appellee-Plaintiff
                                                                Case Nos. 25D01-1311-FB-728 and
                                                                25D01-1203-FB-185




      Vaidik, Chief Judge.



                                            Case Summary
[1]   Ronald Lambert pled guilty to Class B felony dealing in a schedule II controlled

      substance; the plea agreement provided that the trial court would determine the

      Court of Appeals of Indiana | Memorandum Decision 25A03-1412-CR-462 | July 6, 2015               Page 1 of 9
      sentence. The trial court sentenced Lambert to eighteen years, with fifteen

      years executed in the Indiana Department of Correction and three years

      suspended to probation. Lambert now appeals his sentence, arguing that the

      trial court abused its discretion in not identifying two mitigating factors and that

      his sentence is inappropriate under Indiana Appellate Rule 7(B). We affirm.



                            Facts and Procedural History
[2]   In early March 2012, Deputy Travis Heishman of the Fulton County Sheriff’s

      Department was contacted by concerned citizens who had observed “vehicular

      traffic and possible activity going on at the Lamberts’ residence.” Tr. p. 56.

      Following a controlled buy at the Lambert house by a confidential informant, a

      search warrant was issued. The search uncovered 125 firearms, 1400 pills that

      were classified as controlled substances, 3600 other miscellaneous pills, and

      $4000 in cash. Lambert was charged under Cause No. 25D01-1203-FB-185

      (“FB-185”) with Count I – Class B felony dealing in a controlled substance and

      Count II – Class D felony possession of a controlled substance. Lambert posted

      a $40,000 surety bond and was released.


[3]   Then, in the spring of 2013, the Sheriff’s Department began receiving calls

      again about the Lambert house – “traffic going in and out, basically just

      consistent with what we had in 2012.” Id. at 11. In November, several

      controlled buys were conducted at the Lambert residence, including one on

      November 13 in which a confidential informant was provided with a recording

      device and $100.00. The informant went to the Lambert residence and

      Court of Appeals of Indiana | Memorandum Decision 25A03-1412-CR-462 | July 6, 2015   Page 2 of 9
      purchased 5 IR-15s from Lambert. 1 Appellant’s App. p. 122. Five days later a

      search warrant was obtained to search the Lambert residence. The search

      uncovered, from Lambert’s bedroom, several firearms, two twenty-dollar bills

      that were identified as buy money from a previous controlled buy, and

      prescription medications – including morphine sulphate extended release, a

      schedule II controlled substance, and 30 mg Oxycontin. The pills were located

      inside of prescription bottles, some of which were missing their labels.


[4]   In November 2013, before his trial in FB-185, Lambert was charged under

      cause number 25D01-1311-FB-728 (“FB-728”) with Count I - Class B felony

      dealing in a schedule II controlled substance and Count II – Class D felony

      possession of a schedule II controlled substance. Lambert’s bond in FB-185

      was revoked, and Lambert was held without bail in FB-728. Lambert and the

      State entered into a written plea agreement that covered the charges in both

      cases: Lambert pled guilty to Class B felony dealing in a schedule II controlled

      substance—Oxycodone—under FB-728, in exchange for which the State agreed

      to dismiss all remaining counts in both FB-185 and FB-728. The plea

      agreement provided that the trial court would determine Lambert’s sentence.


[5]   A sentencing hearing was held in December 2014. At this hearing, the trial

      court accepted Lambert’s guilty plea and entered judgment of conviction for

      Class B felony dealing in a schedule II controlled substance. In sentencing



      1
       An “IR-15” refers to a 15 mg pill of Oxycodone, a schedule II controlled substance. The CI purchased five
      IR-15s with the $100.00.

      Court of Appeals of Indiana | Memorandum Decision 25A03-1412-CR-462 | July 6, 2015              Page 3 of 9
      Lambert, the trial court gave a lengthy explanation for its sentencing decision

      and discussed the aggravating and mitigating circumstances it identified in

      detail. The court identified the following aggravating circumstances: (1) the

      nature and circumstances of the offense, specifically the quantity of drugs

      recovered, the presence of firearms, and evidence that this was an organized

      business enterprise with far-reaching consequences; (2) Lambert’s prior criminal

      history, including a felony conviction for burglary; and (3) Lambert was out on

      bond for the same offense when he committed this offense. Tr. p. 77-78. As to

      the third aggravator, the trial court remarked, “I don’t think [there] can be any

      more blatant disregard of the law than to do something like that.” Id. at 78. As

      mitigators, the trial court noted Lambert’s age (seventy-four years old), health

      issues, and that he pled guilty, though the trial court found that to be “more of a

      pragmatic decision on his behalf.” Id. at 77.


[6]   Following the sentencing hearing, Lambert received a sentence of eighteen

      years, with fifteen years executed in the Department of Correction and three

      years suspended to probation.


[7]   Lambert now appeals his sentence.



                                 Discussion and Decision
[8]   On appeal, Lambert contends that the trial court abused its discretion in

      sentencing him and that his sentence is inappropriate in light of his character

      and the nature of his offense.


      Court of Appeals of Indiana | Memorandum Decision 25A03-1412-CR-462 | July 6, 2015   Page 4 of 9
                                     I. Abuse of Discretion
[9]    Lambert argues first that the trial court abused its discretion when it failed to

       consider as mitigating circumstances that Lambert was a good candidate for

       alternative forms of punishment and that he was unlikely to reoffend.

       Sentencing decisions rest within the sound discretion of the trial court and are

       reviewed on appeal for an abuse of discretion. Anglemyer v. State, 868 N.E.2d

       482, 490 (Ind. 2007), 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. For instance, an abuse of discretion has

       been found where the trial court: fails to enter a sentencing statement at all;

       enters a sentencing statement that explains the reasons for imposing a

       sentence—including a finding of aggravating and mitigating factors, if any—but

       the record does not support the reasons; enters a sentencing statement that

       omits reasons that are clearly supported by the record and advanced for

       consideration; or where the reasons given are improper as a matter of law. Id.

       at 490-91. An allegation that the trial court failed to identify or find a

       mitigating factor requires the defendant to establish that the mitigating evidence

       is both significant and clearly supported by the record. Id. at 493.


[10]   On appeal, Lambert asserts that the trial court abused its discretion when it

       failed to identify as mitigators that he was unlikely to reoffend based on his low

       to moderate scores on the Indiana Risk Assessment System Tool and that he

       was a poor candidate for incarceration. The State argues that Lambert has

       Court of Appeals of Indiana | Memorandum Decision 25A03-1412-CR-462 | July 6, 2015   Page 5 of 9
       waived this argument by failing to proffer these mitigating circumstances to the

       trial court.


[11]   At the sentencing hearing, defense counsel stated the following:

               If we look at your own probation officer’s statement, the substance
               abuse, peer associations, criminal attitude, behavior under the IRIS is
               low in those particular areas; and as far as criminal history, education,
               does not exceed moderate. . . . I have his daughter here today who is
               willing to allow him to stay at her location on in-home detention until
               such time as arrangements can be made to take him outside of his
               property where this is at. . . . The question here today, Judge, is what
               is appropriate. What is appropriate for a person who has lived the last
               forty-five years a law-abiding life up until this particular arrest, what is
               appropriate for a 74-year-old individual?
       Tr. p. 75-76. So Lambert did mention the IRIS results and he did inform the

       court that he could stay with his daughter on home-detention. We find that

       Lambert did not waive these arguments. Nonetheless, the trial court did not

       abuse its discretion by failing to consider them because Lambert has failed to

       show that these factors are both significant and clearly supported by the record.

       See Anglemyer, 868 N.E.2d at 493. Indeed, given that Lambert was out on bond

       for possession and dealing in a controlled substance when he committed the

       very same offenses a year later, the record would not seem to support these

       arguments at all. As articulated by the State,

               [Lambert]’s conduct clearly evinces that he is highly likely to reoffend
               if given the opportunity because he has a blatant disregard for the law.
               Alternative forms of punishment will not deter [Lambert] because he
               has previously committed the very same offenses repeatedly from
               inside his home. There is only one way to ensure that [Lambert] does
               not resume dealing in illegal prescription pills again from any location
               and that is incarceration.

       Court of Appeals of Indiana | Memorandum Decision 25A03-1412-CR-462 | July 6, 2015     Page 6 of 9
       Appellee’s Br. p. 14. We find that the trial court did not abuse its discretion in

       not identifying these as mitigators.



                                II. Inappropriate Sentence
[12]   Next Lambert contends that his eighteen-year sentence with fifteen years

       executed and three years suspended to probation is inappropriate in light of his

       character and the nature of his offense, and he asks us to revise it to a ten-year

       sentence with four years suspended to probation. The Indiana Constitution

       authorizes independent appellate review and revision of a trial court’s

       sentencing decision. Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014). We implement

       this authority through Indiana Appellate Rule 7(B), which provides that we

       may revise a sentence authorized by statute if, after due consideration of the

       trial court’s decision, we find the sentence is inappropriate in light of the nature

       of the offense and the character of the offender. Id. Sentencing is principally a

       discretionary function in which the trial court’s judgment should receive

       considerable deference. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).

       As such, in reviewing a sentence, this Court seeks to “leaven the outliers . . . but

       not to achieve a perceived ‘correct’ result in each case.” Id. at 1225. Lambert

       bears the burden on appeal of showing us that his sentence is inappropriate.

       Brock v. State, 983 N.E.2d 636, 642 (Ind. Ct. App. 2013), reh’g denied.


[13]   When Lambert committed this offense, the sentencing range for a Class B

       felony was between six and twenty years, with an advisory sentence of ten



       Court of Appeals of Indiana | Memorandum Decision 25A03-1412-CR-462 | July 6, 2015   Page 7 of 9
       years. Ind. Code Ann. § 35-50-2-5(a) (West 2012). Thus, Lambert was ordered

       to serve five years executed above the advisory sentence.


[14]   Concerning the nature of the offense, Lambert possessed and sold large

       quantities of prescription drugs as an ongoing business enterprise.


[15]   Concerning the character of the offender, Lambert in FB-728 committed the

       same offense for which he was out on bond in FB-185. As argued by the State

       at the sentencing hearing, “Even though he had major felony cases pending

       against him for that exact same thing, he goes right back in business and

       commits the same offenses and dumps the same poison into the community.

       So that, to me, is his character.” Tr. p. 73. Although he pled guilty, the trial

       court found that to be “more of a pragmatic decision on his behalf” than a true

       recognition of culpability. Id. at 77. Indeed, at his initial hearing in FB-728,

       Lambert stated, “I’d swear on my momma’s grave that it wasn’t nothing there

       in my house.” Id. at 3. In the presentence investigation report, Lambert’s

       version of the offense was as follows: “People came to me ill & claim that there

       [sic] medication was not working well for them. I was asked if I could be of

       help & I offered & gave them some of my medication to assist them with their

       pain.” Appellant’s App. p. 150. Thus, he still seems unwilling to accept

       responsibility for his behavior and the damage he has likely caused through his

       criminal activity. The trial court also noted Lambert’s prior criminal history,

       including a 1959 burglary conviction and 1962 parole violation: “The

       convictions are many years ago but still reflect on his character.” Id. at 66.



       Court of Appeals of Indiana | Memorandum Decision 25A03-1412-CR-462 | July 6, 2015   Page 8 of 9
[16]   In light of the nature of the offense and his character, Lambert has failed to

       persuade us that his eighteen-year sentence, with fifteen years executed and

       three years suspended to probation, is inappropriate.


       Affirmed.


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 25A03-1412-CR-462 | July 6, 2015   Page 9 of 9
