MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             Oct 31 2018, 10:41 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
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Nicholas J. Schlueter,                                   October 31, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1259
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable James D. Worton,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         03D01-1609-F2-5231



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1259 | October 31, 2018

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                                             Case Summary
[1]   Nicholas Schlueter appeals the thirteen-year sentence imposed following his

      guilty plea to level 3 felony dealing in methamphetamine. He contends that his

      sentence is inappropriate in light of the nature of the offense and his character.

      Concluding that he has not met his burden to demonstrate that his sentence is

      inappropriate, we affirm.


                                 Facts and Procedural History
[2]   On January 6, 2016, Schlueter sold ten grams or more of methamphetamine to

      a confidential informant. On January 11, 2016, he again sold ten grams or

      more of methamphetamine to the same informant. The State charged Schlueter

      with two counts of level 2 felony dealing in methamphetamine. The State and

      Schlueter subsequently entered into a plea agreement whereby Schlueter agreed

      to plead guilty to one count of the lesser included offense of level 3 felony

      dealing in methamphetamine in exchange for dismissal of the second count.

      Following a sentencing hearing, the trial court sentenced Schlueter to thirteen

      years executed in the Department of Correction. This appeal ensued.


                                     Discussion and Decision
[3]   Schlueter invites this Court to reduce his sentence pursuant to Indiana

      Appellate Rule 7(B), which provides that we may revise a sentence authorized



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1259 | October 31, 2018

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      by statute 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.” The defendant bears the burden to persuade this Court that

      his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

      2006). As we assess the nature of the offense and character of the offender, “we

      may look to any factors appearing in the record.” Boling v. State, 982 N.E.2d

      1055, 1060 (Ind. Ct. App. 2013). Indiana’s flexible sentencing scheme allows

      trial courts to tailor an appropriate sentence to the circumstances presented, and

      the trial court’s judgment “should receive considerable deference.” Cardwell v.

      State, 895 N.E.2d 1219, 1222 (Ind. 2008).


[4]   The principal role of appellate review is to attempt to “leaven the outliers.” Id.

      at 1225. Whether we regard a sentence as inappropriate 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 facts that come to light in a given

      case.” Id. at 1224. In conducting our review, we do not look to see “if another

      sentence might be more appropriate; rather, the question is whether the sentence

      imposed is inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App.

      2007).


[5]   Regarding the nature of the offense, the advisory sentence is the starting point

      that the legislature has selected as an appropriate sentence for the crime

      committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The advisory



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1259 | October 31, 2018

                                                                                         Page 3 of 5
      sentence for a level 3 felony is between three and sixteen years with the

      advisory being nine years. Ind. Code § 35-50-2-5. The trial court here imposed

      a thirteen-year sentence which, although above the advisory, is still several

      years below the maximum allowable sentence.


[6]   Schlueter asserts that he is not deserving of “an aggravated sentence” because

      no one “was physically injured in the commission” of his offense and there was

      no indication that his “offense involved firearms, threats, or other egregious

      behavior.” Appellant’s Br. at 12. However, the record indicates that he sold

      more than ten grams of methamphetamine to a confidential informant. The

      sale of this much methamphetamine would generally be a level 2 felony, which

      carries a maximum sentence of thirty years. See Ind. Code § 35-50-2-4.5.

      Schlueter received less than half that time, and we are unpersuaded by his

      attempts to downplay the seriousness of his crime with his self-serving claim

      that he was only the “middle man” for a larger distributor. Id. at 12. Nothing

      about the nature of this offense warrants a sentence reduction.


[7]   Schlueter does not fare any better when his character is considered. We note

      that the character of the offender is found in what we learn of the offender’s life

      and conduct. Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). Included

      in that assessment is a review of an offender’s criminal history. Garcia v. State,

      47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied (2016). Schlueter has

      an extensive criminal history including both misdemeanor and felony



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1259 | October 31, 2018

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      convictions. He has been granted probation on multiple occasions, only to

      violate that probation and have it revoked. Despite his current claims that he is

      in need of drug rehabilitative treatment rather than incarceration, the trial court

      specifically noted that he has had prior opportunities for treatment outside a

      penal facility to no avail. Accordingly, the trial court determined that any

      rehabilitative treatment should occur in the Department of Correction. We are

      inclined to agree. In sum, Schlueter has not met his burden to demonstrate that

      the sentence imposed by the trial court is inappropriate in light of the nature of

      his offense or his character. Accordingly, we affirm.


[8]   Affirmed.


      Najam, J., and Pyle, J., concur.




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