Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the                            May 09 2013, 8:41 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

MARIELENA DUERRING                               GREGORY F. ZOELLER
Duerring Law Offices                             Attorney General of Indiana
South Bend, Indiana
                                                 KATHERINE MODESITT COOPER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ELDON E. HARMON,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )    No. 20A05-1212-CR-634
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE ELKHART CIRCUIT COURT
                        The Honorable George W. Biddlecome, Judge
                              Cause No. 20D03-0910-FA-47




                                        May 9, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                  Case Summary and Issues

       Eldon E. Harmon appeals the trial court’s sentence of sixteen years for a Class B

felony conviction of dealing in methamphetamine. Harmon raises two expanded and

restated issues on appeal: 1) whether the trial court wrongly increased his sentence on

remand, and 2) whether the sentence was inappropriate in light of the nature of the

offense and Harmon’s character. Concluding that the sentence was neither wrongly

increased nor inappropriate, we affirm.

                                 Facts and Procedural History

       In 2009, Harmon was charged with dealing in methamphetamine as a Class A

felony. In 2011, a jury convicted Harmon of the offense, and Harmon was sentenced to

forty years with ten years suspended to probation, for a total of thirty executed years.

Harmon filed a direct appeal challenging the sufficiency of the evidence that elevated his

charge from a Class B felony to a Class A felony. We found the evidence to be

insufficient, and reversed and remanded with instructions for the trial court to enter a

conviction for dealing in methamphetamine as a Class B felony and to resentence

Harmon accordingly. Harmon v. State, 971 N.E.2d 674, 682 (Ind. Ct. App. 2012), trans.

denied.

       In November 2012, following a resentencing hearing, the trial court sentenced

Harmon to sixteen years on the Class B felony. This appeal followed. Additional facts

will be supplied as necessary.

                                   Discussion and Decision

                                    I. Increased Sentence

       Harmon first argues that his sentence was wrongly increased on remand.
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      It is well-established that when a defendant successfully challenges his
      conviction, the trial court may not impose a harsher sentence on remand
      absent changed circumstances. The rule is intended to curb the possible
      chilling effect upon a defendant’s right to appeal his conviction if he were
      faced with the prospect of a more severe sentence after retrial.

Barnett v. State, 599 N.E.2d 232, 233 (Ind. Ct. App. 1992) (citations and internal

quotation marks omitted). Harmon’s original sentence was for a Class A felony, for

which the potential range is between twenty and fifty years, with the advisory sentence

being thirty years. Ind. Code § 35-50-2-4. Upon remand, Harmon was sentenced for a

Class B felony, for which the potential range is between six and twenty years, with an

advisory sentence of ten years. Ind. Code § 35-50-2-5. Harmon argues that his sixteen

year sentence on remand is proportionally higher than his original thirty year executed

sentence because his sentence on remand was enhanced six years above the advisory

sentence, while his original Class A felony sentence was for an executed time equal to the

advisory sentence.

      Firstly, as the State correctly points out, Harmon’s total sentence in each case was

eighty percent of the statutory maximum (forty years is eighty percent of fifty, and

sixteen years is eighty percent of twenty).      Aside from proportionality, and most

importantly, Harmon’s new sentence of sixteen years is quantitatively less than his

original sentence of thirty years executed, and therefore could have no chilling effect on

the right to appeal. See Misztal v. State, 620 N.E.2d 37, 38-39 (Ind. Ct. App. 1993)

(holding, where the resentencing was proportionally greater, that there could be no

chilling effect because the sentence was nonetheless reduced to a fewer number of years

on resentencing).


                                            3
       Harmon also argues that the new sentence indicates that the court was vindictive.

Here Harmon conflates the prosecution and the court, arguing that misrepresentation of

facts, and a request of the maximum allowable sentence, by the State at the sentencing

hearing underscore a vindictive motive in sentencing.                We note that any

misrepresentations appear to be relatively minor and there is no indication that they were

intentional.   Further, zealous prosecution does not implicate the court in vindictive

sentencing. Here, the court declined to impose the maximum sentence of twenty years as

requested by the State, which counters Harmon’s implication.

       Finally, Harmon argues that only changed circumstances may justify an increased

sentence on remand, and that no such circumstances were present here. We have already

determined that the sentence on remand was not in fact increased, but we take this

opportunity to note that the court largely reiterated the mitigating and aggravating factors

from the original Class A felony, but did take into consideration Harmon’s participation

in various programs while in jail and the Department of Correction in the interim; being

unfamiliar with the programs, the court was not able to assign them much value. We

have said before, under a previous sentencing scheme that made more overt use of

mitigating and aggravating factors, that there was no authority “for the proposition that a

resentencing court does not have the discretion to consider mitigating and aggravating

factors in light of the conviction on a lesser or different charge.” Misztal, 620 N.E.2d at

39. We see no reason here why the court could not re-evaluate factors in light of the

Class B felony when determining a sentence, especially where the overall resulting

sentence was shorter than the original. Harmon has clearly benefited from his original

appeal, and we find no error in the court’s sentence of sixteen years on remand.
                                             4
                             II. Appropriateness of Sentence

                                  A. Standard of Review

       We are empowered by Indiana Appellate Rule 7(B) to revise a 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.” The

burden is on the defendant to persuade us that his sentence has met this inappropriateness

standard of review. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). When

conducting this inquiry, we may look to any factors appearing in the record. Roney v.

State, 872 N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied.

                 B. Nature of the Offense and Character of the Offender

       The headings of Harmon’s brief relate to our review of a sentence for

inappropriateness. However, the body of his argument does not address this review, but

instead focuses only on the increased sentence detailed above. In a single sentence

relating to Harmon’s character, Harmon appears to argue that his character has changed

for the better since his original sentencing, apparently relying on his participation in

programs while in the Department of Correction, and Harmon’s statement at the 2012

resentencing that, if given a second chance, he would like to be a father to his children

and a productive member of society. We disagree that Harmon’s overall character, or the

nature of the offense, render his sixteen year sentence inappropriate.

       The trial court’s judgment of conviction in 2011, reiterated at the 2012 sentencing,

included the following factors:

       [Harmon] manufactured methamphetamine in a residential neighborhood,
       thus putting large numbers of people at risk from the deleterious effects of
       methamphetamine production. The court also notes that [Harmon] suffered
                                             5
       four adjudications of delinquency as a juvenile, one of which was for
       delivery of controlled substance; eleven misdemeanor convictions, several
       of which were controlled substance offenses; and two felony convictions,
       both of which involved substance abuse. In addition, [Harmon] has
       suffered multiple probation violations and community corrections
       violations, and has failed to appear for court proceedings on numerous
       occasions in the past. . . .
              In looking at [Harmon’s] substance abuse history, the court
       acknowledges that it is clear that [Harmon] has a substance abuse problem;
       however, [Harmon] was given the opportunity to address that problem at
       least twice—once through the Center for Problem Resolution, and later
       through Oaklawn Hospital. He either failed or refused to responsibly
       address his addiction; therefore, the court ascribes little weight to that
       circumstance.

Appellant’s Appendix at 45. These factors are still relevant, and support Harmon’s

enhanced Class B felony sentence of sixteen years. Harmon has failed to meet the

standard of review on this issue. Despite Harmon’s assertion that he now hopes to be a

better person, the overall nature of both his character and the offense leads us to conclude

that his sentence was not inappropriate.

                                        Conclusion

       Concluding that the trial court did not wrongly increase Harmon’s sentence on

remand, and that the sentence is not inappropriate in light of his character or the nature of

the offense, we affirm.

       Affirmed.

FRIEDLANDER, J., and CRONE, J., concur.




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