Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                           Mar 18 2014, 9:29 am
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:

KATHRYN C. BYROM                                  GREGORY F. ZOELLER
Kendallville, Indiana                             Attorney General of Indiana

                                                  IAN MCLEAN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

RONNIE D. CONLEY,                                 )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )      No. 57A03-1308-CR-335
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                      APPEAL FROM THE NOBLE CIRCUIT COURT
                          The Honorable G. David Laur, Judge
                             Cause No. 57C01-1206-FB-38



                                        March 18, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                               STATEMENT OF THE CASE

       Ronnie D. Conley appeals his sentence following his convictions for two counts of

dealing in a schedule I, II, or III controlled substance, as Class B felonies. Conley

presents two issues for our review:

       1.        Whether the trial court abused its discretion when it sentenced him.

       2.        Whether his sentence is inappropriate in light of the nature of the
                 offenses and his character.

       We affirm.

                         FACTS AND PROCEDURAL HISTORY

       On January 10, 2011, in Noble County, Lisa Devers, acting as a confidential

informant for the IMAGE Drug Task Force, arranged a controlled drug buy with Conley,

an acquaintance. Devers, fitted with a wire transmitter and a digital recording device,

went to Conley’s trailer and purchased ten oxycodone pills for $40. And on March 29,

Devers arranged another controlled drug buy. This time, Devers bought ten morphine

pills for $90.

       The State charged Conley with two counts of dealing in a schedule I, II, or III

controlled substance, as Class B felonies. A jury found him guilty as charged, and the

trial court entered judgment accordingly. The trial court sentenced Conley to concurrent

sixteen-year terms, with twelve years executed and four years suspended to probation.

This appeal ensued.




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                            DISCUSSION AND DECISION

                     Issue One: Abuse of Discretion in Sentencing

       Conley contends that the trial court abused its discretion when it sentenced him.

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

on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

2007), clarified on other grounds 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.

       One way in which a trial court may abuse its discretion is failing to enter a
       sentencing statement at all. Other examples include entering a sentencing
       statement that explains reasons for imposing a sentence—including a
       finding of aggravating and mitigating factors if any—but the record does
       not support the reasons, or the sentencing statement omits reasons that are
       clearly supported by the record and advanced for consideration, or the
       reasons given are improper as a matter of law . . . .

              [However, b]ecause the trial court no longer has any obligation to
       “weigh” aggravating and mitigating factors against each other when
       imposing a sentence, . . . a trial court cannot now be said to have abused its
       discretion in failing to “properly weigh” such factors.

Id. at 490-91.

       Conley contends that the trial court abused its discretion when it did not identify

two mitigating factors, namely, his “law abiding life following his release from

incarceration in 1999” and his “successful[] complet[ion of] eleven years of probation in

the past.” Appellant’s Brief at 7. But Conley does not direct us to any part of the record

showing that he proffered these alleged mitigators to the trial court. Accordingly, the



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issue is waived. See McKinney v. State, 873 N.E.2d 630, 646 (Ind. Ct. App. 2007), trans.

denied.

       Waiver notwithstanding, the trial court abuses its discretion in sentencing if it

overlooks “substantial” mitigating factors that are “clearly supported by the record.”

Smith v. State, 929 N.E.2d 255, 259 (Ind. Ct. App. 2010) (quoting Anglemyer, 868

N.E.2d at 491), trans. denied. The trial court may decide what circumstances it finds

mitigating. Id. When a defendant offers evidence of mitigators, the trial court has the

discretion to determine whether the factors are mitigating, and it is not required to explain

why it does not find the proffered factors to be mitigating. Id. Here, Conley, forty-two

years old at the time of sentencing, was previously sentenced to thirty years with eleven

years suspended to probation for conspiracy to commit murder. Conley admitted that he

smoked marijuana on a daily basis while he was on probation. The trial court did not

abuse its discretion when it did not identify as mitigating Conley’s “law abiding life

following his release from incarceration in 1999” and his “successful[] complet[ion of]

eleven years of probation in the past.” Appellant’s Brief at 7.

                          Issue Two: Inappropriate Sentence

       Conley also contends that his sentence is inappropriate in light of the nature of the

offenses and his character.     Again, the trial court imposed concurrent sixteen-year

sentences with four years suspended to probation. The sentencing range for a Class B

felony is six years to twenty years with the advisory sentence being ten years. Ind. Code

§ 35-50-2-5.

       Although a trial court may have acted within its lawful discretion in determining a

sentence, Article VII, Sections 4 and 6 of the Indiana Constitution “authorize[]
                                             4
independent appellate review and revision of a sentence imposed by the trial court.”

Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration original). This

appellate authority is implemented through Indiana Appellate Rule 7(B). Id. Revision of

a sentence under Appellate Rule 7(B) requires the appellant to demonstrate that his

sentence is inappropriate in light of the nature of his offenses and his character. See App.

R. 7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess the

trial court’s recognition or non-recognition of aggravators and mitigators as an initial

guide to determining whether the sentence imposed was inappropriate. Gibson v. State,

856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a defendant must persuade the

appellate court that his or her sentence has met th[e] inappropriateness standard of

review.” Roush, 875 N.E.2d at 812 (alteration original).

       And our supreme court has stated 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). Indiana’s flexible sentencing

scheme allows trial courts to tailor an appropriate sentence to the circumstances

presented. See id. at 1224. 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.

       Conley contends that his sentence is inappropriate in light of the nature of the

offenses and his character. He maintains that his offenses “did not involve egregious

conduct,” involved “a small amount of pills,” he “did not receive a major financial gain,”
                                             5
and “no weapons were ever involved or even a harsh word uttered.” Appellant’s Brief at

11. He maintains that his criminal history consists of a single conviction in 1999, when

he was nineteen years old. He acknowledges that he committed “a serious felony,”

conspiracy to commit murder, but he notes that “twenty-three years have passed since his

conviction.” Appellant’s Brief at 12. Conley points out that he completed eleven years

of probation after his release in 1999. Finally, Conley states that he lives with his elderly

mother and “help[s] her to the best of his ability” despite his multiple health ailments. Id.

at 13.

         But the State points out that each dealing offense required only that Conley had

sold Devers a single pill, and Conley had sold her ten pills at each controlled buy. And,

again, Conley admitted to having smoked marijuana daily while he was on probation

following his release from incarceration in 1999. Thus, his probation could have been

revoked at any time had his drug abuse been discovered. And while his care for his

mother is laudable, his inability to live as a law-abiding citizen despite his years in prison

reflects poorly on his character. In addition, Conley has not accepted responsibility for

his actions in the instant case. While we may not have imposed the same sentence as the

trial court, Conley’s sentence is not an outlier. Indeed, his executed sentence is only two

years above the advisory sentence for a Class B felony. We cannot say that Conley’s

sentence is inappropriate in light of the nature of the offenses or his character.

         Affirmed.

BAKER, J., and CRONE, J., concur.




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