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:

STEVEN KNECHT                                     GREGORY F. ZOELLER
Vonderheide & Knecht, P.C.                        Attorney General of Indiana
Lafayette, Indiana
                                                  ERIC P. BABBS
                                                  Deputy Attorney General

                                                                                FILED
                                                  Indianapolis, Indiana

                                                                            Oct 24 2012, 9:20 am

                              IN THE                                                CLERK
                                                                                  of the supreme court,

                    COURT OF APPEALS OF INDIANA                                   court of appeals and
                                                                                         tax court




LAMAR HERRON, JR.,                                )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )       No. 79A04-1201-CR-58
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                    APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                          The Honorable Randy J. Williams, Judge
                              Cause No. 79D01-0711-FA-39



                                       October 24, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Lamar Herron, Jr. appeals his sentence following his conviction for dealing in

cocaine, as a Class B felony, after he pleaded guilty. Herron raises a single issue for our

review, namely, whether his sentence is inappropriate in light of the nature of the offense

and his character. We affirm.

                       FACTS AND PROCEDURAL HISTORY

       In October of 2007, Officer Walters of the Tippecanoe County Police Department

learned from an informant the phone number of a crack cocaine dealer. Officer Walters

called the number and arranged to buy $100 of cocaine. Upon his arrival, with other

officers, at the location agreed upon with the dealer, Walters arrested Herron.

       On November 1, the State charged Herron with dealing in cocaine, as a Class A

felony, and dealing in cocaine, as a Class B felony. Thereafter, Herron received two

psychological evaluations and was diagnosed with schizophrenia.           Based on those

evaluations, on April 30, 2008, the State entered into an agreed order with Herron’s

counsel that he was currently incompetent to stand trial. The parties further agreed that

Herron would be reevaluated by the Logansport State Hospital within ninety days of the

agreed order and that a final determination of his competency would be based on the

reevaluation.   On August 27, doctors reevaluated Herron’s mental condition and

diagnosed him with “History of Substance-Induced Psychotic Disorder” and “Personality

Disorder Not Otherwise Specified (NOS) with Antisocial, Narcisstic, and Histrinoic

Features.” Appellant’s App. at 68. The doctors concluded that he had “attained the




                                             2
ability to understand the proceedings and assist in the preparation of his defense.” Id. at

67.

       On November 25, 2008, Herron entered into a plea agreement with the State.

According to the terms of the agreement, Herron would plead guilty to the Class B felony

charge and the State would dismiss the Class A felony charge. Sentencing was left open

to the trial court’s discretion. After a hearing, the trial court accepted the plea agreement

and, on January 8, 2009, the court sentenced Herron to sixteen years, with twelve years

executed and four years suspended to probation, which is six years above the advisory

term for a Class B felony but four years below the maximum. See Ind. Code § 35-50-2-5.

This appeal ensued.

                            DISCUSSION AND DECISION

       Herron argues that his sentence is inappropriate. 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[] 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

offense and her character. See Ind. Appellate Rule 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).


                                             3
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).

       Moreover, “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.

       Herron first asserts that his sentence is inappropriate in light of the nature of the

offense. In particular, Herron notes that “this drug sale is a fairly typical instance of

Dealing in Cocaine. . . . There is nothing about this offense that requires an enhanced

sentence.”   Appellant’s Br. at 10.    But Herron apparently had a history of dealing

cocaine. An informant had called Officer Walters and told him that Herron was a dealer,

Officer Walters then promptly called Herron to set up a drug buy, and Herron was

immediately available with the amount of cocaine requested. And the State dismissed its

Class A felony charge in exchange for Herron’s guilty plea. Had Herron been convicted

of the Class A felony, he would have been subjected to a greater sentence than the one he

received. We are not persuaded that the nature of this offense merits revision of Herron’s

sentence.


                                             4
        Herron also contends that revision of his sentence is inappropriate in light of his

character. Specifically, Herron downplays his extensive criminal history as old and

unrelated to the current offense. And Herron emphasizes his history of mental illness in

light of his recent diagnosis of schizophrenia.

        We are again not persuaded.              Herron’s criminal history includes nine felony

convictions, including three counts of aggravated battery. He has an additional ten

misdemeanor convictions. His most recent conviction was in August of 2007. He was

on probation when he committed the instant offense, and he exhibited poor behavior

while incarcerated in the Tippecanoe County Jail after he was returned there by the

Logansport State Hospital. And the evidence of his mental health is at best equivocal. 1

We cannot say that Herron’s sentence is inappropriate in light of his character.

        Affirmed.

KIRSCH, J., and MAY, J., concur.




        1
           Insofar as Herron’s argument on this issue is that the trial court abused its discretion because it
did not assign the proper mitigating weight to his mental illness, we note that that argument is not
available for appellate review. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007).
                                                      5
