MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                              Nov 30 2015, 7:11 am

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
Amy D. Griner                                           Gregory F. Zoeller
Mishawaka, Indiana                                      Attorney General of Indiana
                                                        Ian McLean
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Tracey A. Hardy,                                        November 30, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        20A03-1506-CR-538
        v.                                              Appeal from the Elkhart Circuit
                                                        Court
State of Indiana,                                       The Honorable Terry C.
Appellee-Plaintiff.                                     Shewmaker, Judge
                                                        Trial Court Cause No.
                                                        20C01-1310-FA-56



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-538 | November 30, 2015       Page 1 of 20
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Tracey A. Hardy (Hardy), appeals his conviction for two

      Counts of dealing in cocaine, Class A felonies, Ind. Code § 35-48-4-

      1(a)(1)(C),(b)(3)(B)(ii) (2013); and one Count of dealing in cocaine, a Class B

      felony, I.C. § 35-48-4-1(a)(1)(C) (2013).


[2]   We affirm.


                                                   ISSUES

[3]   Hardy raises three issues on appeal, which we restate as follows:

      (1) Whether the trial court abused its discretion by admitting evidence that was

      obtained during the course of a warrantless search;

      (2) Whether Hardy’s sentence violates the Proportionality Clause of the Indiana

      Constitution; and

      (3) Whether Hardy’s sentence is inappropriate in light of the nature of the

      offense and his character.


                           FACTS AND PROCEDURAL HISTORY

[4]   In 2012, the Elkhart County Interdiction and Covert Enforcement Unit (ICE

      Unit)—a joint drug task force comprised of various law enforcement agencies

      within Elkhart County, Indiana—began compensating a confidential informant,

      Cooperating Source 12009 (CS-12009), to provide information about

      individuals in Elkhart County whom the Source believed to be engaged in

      dealing drugs. Part of CS-12009’s role as a confidential informant entailed

      participating in controlled drug purchases under the direction and supervision

      Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-538 | November 30, 2015   Page 2 of 20
      of his ICE Unit handlers. At some point, CS-12009 informed the ICE Unit that

      Hardy was dealing cocaine.


[5]   On the afternoon of August 14, 2013, CS-12009 met with several ICE Unit

      officers, including Detective Andrew Whitmyer (Detective Whitmyer) and

      Detective Brian Schroth (Detective Schroth), for the purpose of arranging and

      carrying out a controlled drug purchase from Hardy. In the presence of the

      officers, CS-12009 placed a phone call to Hardy and set up the transaction. The

      officers searched CS-12009 to ensure that he was not in possession of any

      weapons, drugs, or large sums of money and equipped him with a concealed

      audio recording and transmitting device. The officers also provided CS-12009

      with $80.00 in cash, which the officers had previously photocopied in order to

      keep track of the currency’s serial numbers. Then, as the police maintained

      visual and audio surveillance, CS-12009 walked to a liquor store where he had

      agreed to meet with Hardy. A short time later, Hardy pulled up in a white

      Chevrolet Monte Carlo, and CS-12009 climbed into the passenger seat. The

      officers discretely followed the Monte Carlo as it traveled several blocks to a

      house located at 905 West Marion Street in Elkhart. There, CS-12009 waited

      as Hardy went inside the house, “got the drugs and brought them back out.”

      (Tr. p. 164). Detective Schroth followed as Hardy drove CS-12009 back to the

      liquor store. Once Hardy pulled away, CS-12009 reconvened with the officers

      and was again subjected to a thorough search. In addition to returning $20.00

      of the buy money to Detective Whitmyer, CS-12009 handed Detective Schroth

      three plastic baggies appearing to contain crack cocaine, the total weight of


      Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-538 | November 30, 2015   Page 3 of 20
      which was .72 grams. The substance in one of the baggies tested positive for

      .22 grams of cocaine.


[6]   On September 9, 2013, CS-12009 arranged a second controlled purchase

      involving Hardy. Once again, CS-12009 met with several ICE Unit officers, at

      which time he was searched, outfitted with a recording and transmitting device,

      and provided with $40.00 in buy money that had previously been photocopied.

      This time, Detective Whitmyer, Detective Schroth, and two other ICE Unit

      officers monitored CS-12009 as he walked to 318 West Jefferson Street in

      Elkhart and went inside. 1 A short time later, the officers observed as Hardy’s

      white Monte Carlo pulled up to the house and Hardy went inside. A few

      minutes later, CS-12009 emerged and walked back to the officers’ meeting

      location. After being searched, CS-12009 turned over two plastic baggies that

      appeared to contain crack cocaine and which had a total weight of .38 grams.

      The substance in one of the baggies tested positive for .17 grams of cocaine.


[7]   On September 11, 2013, CS-12009 arranged for a final controlled cocaine

      purchase from Hardy. As before, the ICE Unit officers thoroughly searched

      CS-12009, equipped him with a recording and transmitting device, and supplied

      $90.00 in photocopied cash to complete the purchase. With the officers

      watching, CS-12009 walked down the block to 318 West Jefferson—where the

      white Monte Carlo was already parked out front—and went inside for a few



      1
       Detective Schroth testified that 318 West Jefferson Street is located only 743 feet away from Langle Park,
      which is a public park.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-538 | November 30, 2015         Page 4 of 20
      minutes. Upon his return to the ICE Unit meeting location, CS-12009 was

      searched, and he tendered four plastic baggies to the officers, which appeared to

      contain crack cocaine and weighed a total of .67 grams. The substance in one

      of the baggies tested positive for .13 grams of cocaine.


[8]   For several hours following the third controlled drug purchase, ICE Unit

      officers maintained surveillance of 318 West Jefferson Street and Hardy’s

      Monte Carlo. At this point, Detective Whitmyer and Detective Schroth agreed

      that they had probable cause to arrest Hardy for dealing in cocaine, but they

      discussed the possibility that Hardy might be willing to provide information

      about his supplier or act as a confidential informant. When Hardy finally

      emerged and drove away from 318 West Jefferson, a uniformed patrol officer

      with the Elkhart Police Department initiated a traffic stop. Detective Whitmyer

      and Detective Schroth—who had followed the patrol officer as he initiated the

      stop—removed Hardy from his vehicle, informed him that he was under arrest,

      placed him in handcuffs, conducted a cursory pat-down search for weapons,

      and transferred him to an unmarked police vehicle. Detective Whitmyer and

      Detective Schroth drove Hardy to a nearby park while other officers relocated

      Hardy’s recognizable vehicle to a more inconspicuous location in order to avoid

      alerting any neighbors to the fact that Hardy was talking to the police.


[9]   Once at the park, the officers conducted a more thorough search of Hardy’s

      person, seizing $975.00 from his pant pockets. The serial numbers on $55.00 of

      the recovered bills matched the photocopied money that CS-12009 had used to

      purchase cocaine earlier that day. Based on their conversation with Hardy,

      Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-538 | November 30, 2015   Page 5 of 20
       Detective Whitmyer and Detective Schroth decided to release Hardy rather

       than taking him to jail to be booked. Approximately one month later, on

       October 10, 2013, the State filed an Information, charging Hardy with Counts I

       and II, dealing in cocaine within 1,000 feet of a public park, Class A felonies,

       I.C. § 35-48-4-1(a)(1)(C),(b)(3)(B)(ii) (2013); and Count III, dealing in cocaine,

       a Class B felony, I.C. § 35-48-4-1(a)(1)(C) (2013).


[10]   On April 20-21, 2015, the trial court conducted a jury trial. Before any

       evidence was presented, Hardy moved to suppress the buy money that was

       seized from his pockets following the September 11, 2013 controlled drug

       purchase, arguing that the warrantless search was unlawful. After a hearing

       outside the jury’s presence, the trial court denied Hardy’s suppression motion. 2

       At the close of the evidence, the jury returned a guilty verdict on all Counts,

       and the trial court entered a judgment of conviction on the same. On May 14,

       2015, the trial court held a sentencing hearing. The trial court imposed a

       sentence of forty-one years each on Counts I and II and a sentence of ten years

       on Count III—all to be served concurrently for an aggregate sentence of forty-

       one years, fully executed in the Indiana Department of Correction (DOC).


[11]   Hardy now appeals. Additional facts will be provided as necessary.




       2
         However, the trial court excluded from evidence any statements that were made by Hardy during the
       course of his arrest and interaction with law enforcement on September 11, 2013, because he never received
       his Miranda warnings.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-538 | November 30, 2015        Page 6 of 20
                                    DISCUSSION AND DECISION

                                             I. Admission of Evidence

[12]   Hardy claims that the trial court erred in denying his motion to suppress the

       buy money from evidence. As Hardy appeals following a completed trial, “the

       question of whether the trial court erred in denying his motion to suppress is no

       longer viable.” Reinhart v. State, 930 N.E.2d 42, 45 (Ind. Ct. App. 2010).

       Instead, the issue before our court “is more appropriately framed as whether the

       trial court abused its discretion when it admitted the evidence at trial.” Id.


[13]   According to Hardy, the admission of the buy money into evidence violated his

       rights under the Fourth Amendment because it was seized during the course of

       a warrantless search. 3 When reviewing a trial court’s ruling on the admissibility

       of evidence obtained from an allegedly illegal search, we do not reweigh

       evidence, and we will consider any conflicting evidence in a light most

       favorable to the trial court’s ruling. Reinhart, 930 N.E.2d at 45. While we defer

       to the trial court’s factual determinations unless they are clearly erroneous, we

       review a ruling on the constitutionality of a search or seizure de novo. Id.




       3
          Hardy also generally asserts that the search was improper under Article 1, Section 11 of the Indiana
       Constitution, “which is identical to the Fourth Amendment.” Stark v. State, 960 N.E.2d 887, 892 (Ind. Ct.
       App. 2012), trans. denied. However, a claim under the Indiana Constitution “turns on an evaluation of the
       ‘reasonableness’ of the conduct of the law enforcement officers, not on the expectation of privacy commonly
       associated with Fourth Amendment analysis.” Id. Because Hardy has neither set forth the specific standard
       utilized in Article 1, Section 11 cases nor presented a cogent argument regarding the reasonableness of the
       law enforcement officers’ conduct, we find that he has waived his claim under the Indiana Constitution. See
       Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-538 | November 30, 2015         Page 7 of 20
[14]   The Fourth Amendment to the United States Constitution, which is applicable

       to the states through the Fourteenth Amendment, protects “[t]he right of the

       people to be secure in their persons, houses, papers, and effects[] against

       unreasonable searches and seizures.” U.S. CONST. amend IV. In general, a

       search warrant is required as “a prerequisite to a constitutionally proper search

       and seizure.” Danner v. State, 931 N.E.2d 421, 428 (Ind. Ct. App. 2010), trans.

       denied. As a result, when a search or seizure is conducted in the absence of a

       warrant, the State bears the burden of proving that one of the well-delineated

       exceptions to the warrant requirement existed at the time of the search or

       seizure. Id.


[15]   During the suppression hearing, the State argued that the buy money was

       lawfully seized during a search incident to arrest. It is well established that a

       search incident to an arrest is a valid exception to the warrant requirement.

       Stark, 960 N.E.2d at 889 (citing Chimel v. California, 395 U.S. 752, 763 (1969),

       reh’g denied). The search incident to arrest exception to the warrant requirement

       “‘derives from interests in officer safety and evidence preservation.’” Id.

       (quoting Arizona v. Grant, 556 U.S. 332, 332 (2009)). Thus, “a search incident

       to arrest may include the arrestee’s person and the area within his immediate

       control—[meaning] the area from within which he might gain possession of a

       weapon or destructible evidence.” Id. (internal quotation marks omitted)

       (quoting Chimel, 395 U.S. at 763). A search incident to arrest is only valid if the

       arrest itself is lawful; therefore, “[p]robable cause must be present to support the

       arrest.” VanPelt v. State, 760 N.E.2d 218, 222 (Ind. Ct. App. 2001), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-538 | November 30, 2015   Page 8 of 20
[16]   Hardy contends that the drug money was not seized pursuant to a valid search

       incident to arrest because he “was never arrested and the law enforcement

       officers had sufficient time to obtain a warrant before stopping Hardy, but

       [they] declined to do so.” (Appellant’s Br. p. 7). Rather, he asserts that “[t]he

       stop was a mere rouse [sic] to coerce Hardy to provide information to the police,

       and therefore cannot be a sufficient basis to violate Hardy’s [Fourth]

       Amendment right against unlawful searches and seizures.” (Appellant’s Br. p.

       8). We disagree.


[17]   In order for a search incident to arrest to constitute a valid exception to the

       warrant requirement, “the search and the arrest must be ‘substantially

       contemporaneous,’ and the search must be confined to the immediate vicinity

       of the arrest.” Edwards v. State, 759 N.E.2d 626, 629 (Ind. 2001) (quoting

       Townsend v. State, 460 N.E.2d 139, 141 (Ind. 1984)). Here, Hardy was informed

       that he was under arrest at the time the ICE Unit officers conducted the search

       of his pockets; however, he was subsequently released and was not re-arrested

       for approximately another month. Notwithstanding whether Hardy’s arrest

       was, in fact, contemporaneous with the search of his person, our court has

       resolved that “[t]he critical issue is not when the arrest occurs but whether there

       was probable cause to arrest at the time of the search.” VanPelt, 760 N.E.2d at

       222-23 (holding “that the search incident to arrest exception, which typically

       applies when a search and arrest are contemporaneous, also applies where, as

       here, law enforcement conducts a lawful search but merely delays an otherwise

       valid arrest until after consultation with a prosecutor”). “So long as probable


       Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-538 | November 30, 2015   Page 9 of 20
       cause exists to make an arrest, the fact that a suspect was not formally placed

       under arrest at the time of the search incident thereto will not invalidate the

       search.” Sebastian v. State, 726 N.E.2d 827, 830 (Ind. Ct. App. 2000), trans.

       denied.


[18]   Probable cause to arrest is established if a police officer “has knowledge of facts

       and circumstances that would warrant a man of reasonable caution to believe

       that a suspect has committed the criminal act in question.” VanPelt, 760

       N.E.2d at 223. We are unconcerned with the officer’s subjective belief

       regarding whether he or she has probable cause to make an arrest; instead, it is

       the officer’s “actual knowledge of objective facts and circumstances [that] is

       determinative.” Id. In this case, our review is limited to whether the officers

       had probable cause to arrest Hardy—thereby permitting a search incident to

       arrest—without any consideration as to the validity of the traffic stop itself. The

       record reveals that Detective Whitmyer and Detective Schroth monitored CS-

       12009 as he arranged for and subsequently purchased cocaine from Hardy on

       three separate occasions, with the last transaction occurring just a few hours

       prior to the search at issue. Following each controlled purchase, CS-12009

       confirmed for the officers that it was Hardy who had directly provided him with

       the varying quantities of crack cocaine in exchange for the cash supplied by the

       ICE Unit. Accordingly, we find that the officers had probable cause to believe

       that Hardy had committed the crime of dealing in cocaine at the time they

       conducted the search. Therefore, the trial court acted within its discretion in

       admitting into evidence the buy money that was seized from Hardy’s pockets.


       Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-538 | November 30, 2015   Page 10 of 20
                                        II. Proportionality of Sentence

[19]   Hardy next claims that his forty-one-year sentence is disproportionate to the

       nature of his offenses in violation of the Proportionality Clause of the Indiana

       Constitution, which mandates that “[a]ll penalties shall be proportioned to the

       nature of the offense.” IND. CONST. art. 1, § 16. In light of significant

       legislative changes to Indiana’s criminal statutes, which were enacted

       subsequent to the date of Hardy’s offenses but prior to his sentencing, Hardy

       argues that his


               sentence should be reduced to be proportionate to similarly
               situated defendants being sentenced at the same time as Hardy.
               To hold otherwise, Hardy will be sentenced significantly more
               harshly than offenders who may have even been sentenced before
               him simply because of the date upon which the police decided to
               target him.


       (Appellant’s Br. p. 11).


[20]   “The nature and extent of penal sanctions is primarily a legislative

       consideration, and our review of legislative prescriptions of punishment is

       ‘highly restrained’ and ‘very deferential.’” Foreman v. State, 865 N.E.2d 652,

       655 (Ind. Ct. App. 2007) (quoting State v. Moss-Dwyer, 686 N.E.2d 109, 111

       (Ind. 1997)), reh’g denied; trans. denied. Absent “a showing of clear

       constitutional infirmity[,]” our court will not interfere with the legislature’s

       determination of an appropriate penalty. Id. Moreover, “we are not at liberty

       to set aside a legislatively sanctioned penalty merely because it seems too

       severe.” Id. Rather, we will find that “[a] criminal penalty violates the

       Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-538 | November 30, 2015   Page 11 of 20
       proportionality clause ‘only when a criminal penalty is not graduated and

       proportioned to the nature of the offense.’” Id. (quoting Conner v. State, 626

       N.E.2d 803, 806 (Ind. 1993)). That is, “a legislatively determined penalty will

       be deemed unconstitutional by reason of its length only if it is so severe and

       entirely out of proportion to the gravity of the offense committed as to shock

       public sentiment and violate the judgment of reasonable people.” Id. (internal

       quotation marks omitted).


[21]   At the time Hardy committed the present offenses, the crime of dealing in

       cocaine within 1,000 feet of a public park was classified as a Class A felony,

       with a sentencing range of twenty to fifty years. I.C. §§ 35-48-4-

       1(a)(1)(C),(b)(3)(B)(ii) (2013); 35-50-2-4 (2013). The general crime of dealing in

       cocaine was classified as a Class B felony, with a sentencing range of six to

       twenty years. I.C. §§ 35-48-4-1(a)(1)(C) (2013); 35-50-2-5 (2013). On July 1,

       2014, while Hardy’s charges were pending, the Indiana General Assembly

       enacted a significant revision to the State’s criminal code. In pertinent part, the

       crime of dealing in cocaine (if the amount is less than one gram) was re-

       classified to a Level 5 felony, 4 which carries a sentencing range of one to six

       years. I.C. § 35-48-4-1(a)(1)(C) (2014), amended by P.L. 158-2013 § 622 & P.L.




       4
         Under the amended statute, the crime of dealing in cocaine is no longer enhanced to a more serious felony
       level simply by virtue of the fact that the sale occurred within 1,000 feet of a public park. Compare I.C. § 35-
       48-4-1(b)(3)(B)(ii) (2013), with I.C. § 35-48-4-1 (2014); see Ind. Pub. Law No. 158-2013 § 622.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-538 | November 30, 2015            Page 12 of 20
       168-2014 § 91; I.C. § 35-50-2-6(b) (2014), amended by P.L. 158-2013 § 659 &

       P.L. 168-2014 § 116.


[22]   Hardy directs our attention to Indiana Code section 35-32-1-1(6),(8) (2014),

       which provides that Indiana’s criminal code should be construed to “keep

       dangerous offenders in prison by avoiding the use of scarce prison space for

       nonviolent offenders” and to “maintain proportionality of penalties across the

       criminal code, with like sentences for like crimes.” He posits that “[a] forty-one

       (41) year executed sentence [for] delivering less than one gram of cocaine to an

       informant is contrary to the goal of reducing non-violent offenders or making

       proportional sentences for like crimes and is so out of proportion to the gravity

       of the offense committed as to shock public sentiment and violate the judgment

       of reasonable people.” (Appellant’s Br. p. 11). Furthermore, Hardy contends:

               The reduction in sentences for drug offenses were so dramatically
               reduced[] that it goes against logic to say that the changes were
               not an ameliorative change necessary to reduce overly harsh
               sentences disproportionate to the crime. As an example, Hardy’s
               offense, which he faced a maximum of fifty (50) years would
               have a maximum sentence of only six (6) years as a [L]evel 5
               felony since he had less than one gram of cocaine and was not
               within 500 [sic] feet from a public park. That is a reduction of
               almost nine times the sentences available prior to the change in
               laws. It is illogical to suggest that the reduction did not reflect a
               recognition that the sentences were overly harsh and
               disproportionate to the crime in violation of the Indiana
               Constitution.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-538 | November 30, 2015   Page 13 of 20
       (Appellant’s Br. p. 10). In other words, Hardy argues that retroactive

       application of the ameliorative penal provisions of the new criminal code is

       required in order to avoid a disproportionate sentence.


[23]   It is a longstanding rule that criminal “defendants must be sentenced under the

       statute in effect at the time the defendant committed the offense.” Turner v.

       State, 870 N.E.2d 1083, 1085 (Ind. Ct. App. 2007). However, “the doctrine of

       amelioration allows a defendant, who is sentenced after the effective date of a

       statute that provides for more lenient sentencing, to take advantage of the more

       lenient statute rather than be sentenced under the more harsh statute that was in

       effect when the defendant was charged or convicted.” Id. This doctrine is only

       applicable “if the legislature intended that the statute as amended apply to all

       persons to whom such application would be possible and constitutional.” Id. at

       1085-86. Thus, if the legislature “expressly states in a specific savings clause an

       intention that crimes committed before the effective date of the ameliorative

       amendment should be prosecuted under prior law[,]” the doctrine of

       amelioration does not apply. Whittaker v. State, 33 N.E.3d 1063, 1065 (Ind. Ct.

       App. 2015).


[24]   If Hardy had committed his offenses after the enactment of the revised code, he

       would have been charged with three Level 5 felonies, rather than two Class A

       felonies and one Class B felony. Additionally, he would have only been subject

       to a maximum term of incarceration of eighteen years, as opposed to the

       aggregate forty-one year sentence he actually received. However, in

       implementing the criminal code revision, the General Assembly also enacted

       Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-538 | November 30, 2015   Page 14 of 20
       the following specific savings clause covering the entirety of the new criminal

       code:

               (a) A SECTION of P.L. 158-2013 or HEA 1006-2014 does not
                   affect:
                   (1) penalties incurred;
                   (2) crimes committed; or
                   (3) proceedings begun;
                   before the effective date of that SECTION of P.L. 158-2013 or
                   HEA 1006-2014. Those penalties, crimes, and proceedings
                   continue and shall be imposed and enforced under prior law
                   as if that SECTION of P.L. 158-2013 or HEA 1006-2014 had
                   not been enacted.


               (b) The general assembly does not intend the doctrine of
                   amelioration (see Vicory v. State, 400 N.E.2d 1380 (Ind. 1980))
                   to apply to any SECTION of P.L. 158-2013 or HEA 1006-
                   2014.


       I.C. § 1-1-5.5-21 (2014) (Italics added).


[25]   While Hardy acknowledges the existence of this specific savings clause, he

       insists that “this [c]ourt cannot ignore the reality that the changes in the law

       came in conjunction with nationwide calls for reform to Draconian drug

       sentences, which have filled U.S. prisons to capacity and sentenced drug

       offenders to longer sentences than violent criminals.” (Appellant’s Br. p. 10).

       However, Hardy cannot ignore the fact that the General Assembly made it

       “abundantly clear” that it “intended the new criminal code to have no effect on

       criminal proceedings for offenses committed prior to the enactment of the new

       code.” Whittaker, 33 N.E.3d at 1066. Moreover, our supreme court has

       Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-538 | November 30, 2015   Page 15 of 20
       previously recognized that “[t]he legislature acts from the lessons of history and

       experience. Revision of laws is often a slow process[,]” and “the needs of

       justice are not static.” Vicory, 400 N.E.2d at 1382. In revising criminal statutes,

       “public policy decisions are made in light of current developments: crime

       statistics, new theories of criminal reformation, prison populations and court

       dockets. Turbulent times are likely to bring about criminal code revisions.” Id.

       Nevertheless, “[t]he adoption of a new system as a better means of serving the

       constitutional purpose of our penal system does not mean that prior law did not

       serve that purpose.” Id. Accordingly, based on the unambiguous intent of the

       legislature, we conclude that Hardy’s sentence is not contrary to the

       Proportionality Clause as the trial court properly sentenced him under the

       statutory scheme that was in effect at the time he committed his offenses.


                                       III. Appropriateness of Sentence

[26]   Lastly, Hardy claims that his aggregate forty-one year sentence is inappropriate.

       It is long settled “that 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). Despite the fact that the trial court

       imposed a sentence that is authorized by statute, our court may revise Hardy’s

       sentence 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.” App. R. 7(B).


[27]   With respect to Appellate Rule 7(B), “[t]he principal role of appellate review

       should be to attempt to leaven the outliers, and identify some guiding principles

       Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-538 | November 30, 2015   Page 16 of 20
       for trial courts and those charged with improvement of the sentencing statutes,

       but not to achieve a perceived ‘correct’ result in each case.” Cardwell, 895

       N.E.2d at 1225. Ultimately, “whether we regard a sentence as appropriate at

       the end of the day turns on our sense of 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.” Id. at 1224. In making this determination, we

       focus on the length of the aggregate sentence and the manner in which it is to be

       served. Id. Hardy bears the burden of proving that his sentence is

       inappropriate. Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007).


[28]   Hardy argues that his sentence is inappropriate because he

               was targeted by the Elkhart [ICE Unit] and delivered a small
               quantity of cocaine, less than one gram on each occasion, to a
               career confidential informant who earned a living by getting paid
               to set up drug deals. Although Hardy had a criminal history, the
               law enforcement officers in the drug unit did not consider Hardy
               a great risk to the community in that they released him after three
               controlled drug buys and offered him an opportunity to work
               with them and provide information. Hardy had no weapons or
               large quantities of drugs. There was nothing more egregious
               about the offense committed by Hardy that makes it different
               from the “typical” offense accounted for by the legislature when
               it set the advisory sentence.


       (Appellant’s Br. p. 12).


[29]   We agree with the State that, “[a]side from a terse mention of his criminal

       history, Hardy’s argument does not refer to anything which might bear on his

       character.” (State’s Br. p. 22). Instead, Hardy’s argument focuses on the nature

       Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-538 | November 30, 2015   Page 17 of 20
       of his offenses, and “revision of a sentence under Indiana Appellate Rule 7(B)

       requires the appellant to demonstrate that his sentence is inappropriate in light

       of both the nature of his offenses and his character.” Williams v. State, 891

       N.E.2d 621, 633 (Ind. Ct. App. 2008). By failing to present a cogent argument

       regarding the inappropriateness of his sentence in light of his character, Hardy

       has waived his request for this court to review his sentence under Appellate

       Rule 7(B). See App. R. 46(A)(8)(a); Williams, 891 N.E.2d at 633.


[30]   Waiver notwithstanding, we find no basis to revise Hardy’s sentence. The

       nature of the offense reveals that on three separate occasions within the course

       of a month, Hardy sold cocaine to CS-12009. Two of these transactions

       occurred less than 1,000 feet from a public park frequented by children.


[31]   As to the character of the offender, we note that Hardy has a lengthy criminal

       history, including a conviction in 1995 for two Counts of dealing in cocaine as

       Class B felonies, for which he received an eight-year executed sentence in the

       DOC. Hardy was also convicted of misdemeanor domestic battery in 2001;

       two Counts of Class A misdemeanor battery resulting in bodily injury in 2004,

       one of which was against a child; misdemeanor battery in 2006; Class A

       misdemeanor operating a vehicle while intoxicated in a manner that

       endangered a person in 2008; and Class D felony operating a vehicle with a

       blood alcohol concentration of 0.15% or greater in 2010.


[32]   During sentencing, the trial court noted that prior attempts to sanction Hardy’s

       conduct and rehabilitate him included: fines and costs, probation (which he


       Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-538 | November 30, 2015   Page 18 of 20
       violated on at least four occasions), alcohol and drug treatment, drug testing,

       restitution, anger management classes, suspended sentences, community

       corrections placement, community service, work release, mental health

       treatment, and executed time in the DOC. Yet, none of these measures were

       sufficient to deter him from committing the present offenses. Furthermore, as

       the trial court indicated, Hardy’s admitted use of cocaine and marijuana and his

       significant criminal record—particularly his prior conviction for two Counts of

       dealing in cocaine—demonstrate “an unwillingness to conform [his] conduct to

       the requirements of [the] law or just simply [an] unwillingness to abide by the

       law.” (Tr. p. 336). Consequently, as the trial court found, “longer term

       incarceration” is now necessary. (Tr. p. 337).


[33]   Hardy reiterates that our court “should consider the changes in Indiana

       sentencing laws which significantly reduced the penalties for similar offenses.”

       (Appellant’s Br. p. 12). As this court has previously stated, “We will not use

       our authority under Indiana Appellate Rule 7(B) to, in effect, give retroactive

       effect to the new criminal code.” Ellis v. State, 29 N.E.3d 792, 801 (Ind. Ct.

       App. 2015), trans. denied. We therefore affirm Hardy’s forty-one year sentence.


                                              CONCLUSION

[34]   Based on the foregoing, we conclude that the trial court acted within its

       discretion in admitting the evidence that was seized from Hardy’s pockets

       during a search incident to arrest. We further conclude that the trial court

       properly sentenced Hardy under the statutory scheme in effect at the time he


       Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-538 | November 30, 2015   Page 19 of 20
       committed his offenses, and Hardy’s sentence is appropriate based on the

       nature of the offense and his character.


[35]   Affirmed.


[36]   Brown, J. and Altice, J. concur




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