                                                                       Mar 06 2015, 9:38 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Donald E.C. Leicht                                        Gregory F. Zoeller
      Kokomo, Indiana                                           Attorney General of Indiana
                                                                Graham T. Youngs
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      John Norris,                                              March 6, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                34A04-1410-CR-499
              v.                                                Appeal from the Howard Superior
                                                                Court

      State of Indiana,                                         The Honorable William C. Menges,
                                                                Judge
      Appellee-Plaintiff.
                                                                Case No. 34D01-1312-FA-975




      Vaidik, Chief Judge.



                                           Case Summary
[1]   John Norris sold ten hydrocodone pills for $6 each to a confidential informant

      during a controlled buy. Norris was charged with a Class A felony and pled

      guilty to Class B felony dealing in a controlled substance. The trial court



      Court of Appeals of Indiana | Opinion 34A04-1410-CR-499 | March 6, 2015                 Page 1 of 7
      sentenced him to twenty years, all executed. Norris now appeals his sentence,

      arguing that it is inappropriate.


[2]   Although Norris has a criminal history and was on probation when he

      committed this offense, given the small amount of pills that were sold to a

      confidential informant during a controlled buy, we find that a twenty-year

      executed sentence is excessive. We therefore remand this case to the trial court

      with instructions to impose a sentence of twelve years, with eight years

      executed in the Indiana Department of Correction and four years suspended to

      supervised probation.



                             Facts and Procedural History
[3]   On October 3, 2013, Kokomo Police Department officers worked with a

      confidential informant (“CI”) to set up a controlled buy. The CI contacted

      Norris through text messages and telephone calls and told him that he wanted

      to purchase “some tabs.” Appellant’s App. p. 15. Norris was on probation at

      the time. Norris told the CI that he could sell him ten pills for $6 each. Norris

      and the CI met at the Walgreens at the intersection of Washington Street and

      Sycamore Street, which was within 1000 feet of Foster Park.


[4]   At the meeting place, the CI gave Norris $60, and Norris handed him ten

      hydrocodone pills. The controlled buy was videotaped.


[5]   In December 2013 the State charged Norris with Count 1: Class A felony

      dealing in a controlled substance (within 1000 feet of a public park) for the

      Court of Appeals of Indiana | Opinion 34A04-1410-CR-499 | March 6, 2015    Page 2 of 7
      October 3rd controlled buy and Count 2: Class A felony dealing in a controlled

      substance (within 1000 feet of school property) for a controlled buy—also

      involving ten hydrocodone pills—that occurred the following day with the same

      CI.1


[6]   Norris and the State entered into a plea agreement. Norris pled guilty to Count

      1 as a Class B felony. In exchange, the State agreed to dismiss Count 2 as well

      as petitions to revoke Norris’s probation that had been filed in two cause

      numbers. Id. at 25, 27. Norris’s sentence was “left to the discretion of the

      Court after preparation of a Pre-Sentence Investigation report and argument

      from counsel.” Id. at 25.


[7]   In October 2014 the trial court held a combined guilty-plea and sentencing

      hearing. As for the factual basis of the crime, Norris stipulated to the probable-

      cause affidavit. Tr. p. 9-10. The judge accepted Norris’s guilty plea and entered

      judgment of conviction for Class B felony dealing in a controlled substance. Id.

      at 11.


[8]   As for sentencing, Norris explained that he had been treated for a variety of

      mental-health issues, including bi-polar disorder, PTSD, antisocial personality

      disorder, and schizophrenia. At the time of sentencing, Norris was taking two




      1
        Under the amendments to our criminal code effective July 1, 2014, significant changes have been made to
      the prior enhancement of dealing within 1000 feet of a public park or school property. See Ind. Code § 35-48-
      1-16.5(3)(B); Ind. Code § 35-48-4-16 (as one example, the distance is now 500 feet).

      Court of Appeals of Indiana | Opinion 34A04-1410-CR-499 | March 6, 2015                           Page 3 of 7
       medications through the jail, Zoloft and Effexor. Norris also had physical-

       health issues, including being treated for blood clots.


[9]    The PSI shows that Norris has the following criminal history: one juvenile

       adjudication (1998); Class D felony conspiracy to commit theft (2001); three

       convictions for misdemeanor check deception (2004); misdemeanor possession

       of marijuana (2005); Class D felony possession of marijuana (2008); Class A

       misdemeanor battery resulting in bodily injury (2011); Class D felony

       possession of marijuana (2012); and Class D felony possession of marijuana

       (2014).


[10]   The PSI also shows that Norris has had mixed results with probation. Norris

       successfully completed probation in his 2001 conspiracy-to-commit-theft and

       2004 check-deception cases. He also successfully completed home detention in

       his 2005 possession-of-marijuana case. However, Norris violated probation in

       his 2008 possession-of-marijuana case and was on probation in his 2012 and

       2014 possession-of-marijuana cases when he committed this offense.


[11]   Here, the probation department recommended a sentence of twelve years with

       six years suspended to probation, including “participation in a Therap[e]utic

       Community Program.” Appellant’s App. p. 52. Defense counsel thought that

       the probation department’s recommendation was “fair” and wanted Norris to

       “receive some [mental-health] treatment in the [DOC]” despite Norris’s request

       that his sentence be served on home detention. Tr. p. 16. Defense counsel

       believed that “going to the [DOC], attending their therapeutic program,


       Court of Appeals of Indiana | Opinion 34A04-1410-CR-499 | March 6, 2015   Page 4 of 7
       receiving some mental[-]health treatment, not only in there but the drug

       treatment in there, and then following up once he’s released with an extended

       period of probation” would be in his “best interest.” Id. The State, while “not

       opposed to a recommendation of the therapeutic community,” asked the trial

       court to “aggravate the sentence further past 12 years.” Id. at 18.


[12]   The trial court identified the following aggravators: (1) Norris’s criminal

       history; (2) he was on probation in two different cause numbers when he

       committed this offense; and (3) he was unsuccessful on community supervision

       in the past. Id. The court identified Norris’s “health” as a mitigating factor but

       found that it was not entitled to significant weight. Id. Concluding that the

       aggravators substantially outweighed the mitigator, the trial court sentenced

       Norris to twenty years executed in the DOC. When Norris committed this

       offense, a person who committed a Class B felony could “be imprisoned for a

       fixed term of between six (6) and twenty (20) years, with the advisory sentence

       being ten (10) years.” Ind. Code Ann. § 35-50-2-5 (West 2012).


[13]   Norris now appeals his sentence.



                                  Discussion and Decision




       Court of Appeals of Indiana | Opinion 34A04-1410-CR-499 | March 6, 2015    Page 5 of 7
[14]   Norris contends that his twenty-year executed sentence is inappropriate.2

       “Appellate review of the merits of a sentence may be sought on the grounds

       outlined in Appellate Rule 7(B).” Cardwell v. State, 895 N.E.2d 1219, 1223 (Ind.

       2008). Under Indiana Appellate Rule 7(B), a reviewing court “may revise a

       sentence authorized by statute 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.” Ind. Appellate Rule 7(B).


[15]   Appellate Rule 7(B) leaves much to the discretion of appellate courts, but it

       does not detract from the long-recognized principle that “sentencing is

       principally a discretionary function in which the trial court’s judgment should

       receive considerable deference.” Parks v. State, 22 N.E.3d 552, 555 (Ind. 2014)

       (quotation omitted). In conducting review under this standard, our Supreme

       Court has acknowledged that “‘reasonable minds may differ’” on the

       appropriateness of a sentence based on their “‘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. (quoting Buchanan v. State,

       767 N.E.2d 967, 970 (Ind. 2002); Cardwell, 895 N.E.2d at 1224). In light of this

       understanding, we exercise our authority to revise Norris’s sentence in this case.


[16]   As for Norris’s character, we acknowledge that he has a criminal history that

       includes four convictions for possession of marijuana and was on probation for



       2
         Norris also contends that the trial court abused its discretion in sentencing him. But given our resolution of
       this case, we need not address that issue.

       Court of Appeals of Indiana | Opinion 34A04-1410-CR-499 | March 6, 2015                              Page 6 of 7
       two of those convictions when he committed this offense. However, Norris has

       not spent a lot of time in the DOC. Many of his previous sentences were

       suspended to probation. He has successfully completed probation in some

       cases but not others.


[17]   But what convinces us that Norris’s sentence is inappropriate and excessive is

       the relatively innocuous nature of this offense. That is, Norris sold ten

       hydrocodone tablets for $60 to a confidential informant during a controlled buy

       that was closely monitored by the police. Given the small amount of drugs, we

       find that the maximum twenty-year executed sentence is inappropriate. We

       therefore remand this case to the trial court with instructions to impose a

       sentence of twelve years, with eight years executed in the DOC and four years

       suspended to supervised probation.


[18]   Reversed and remanded.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Opinion 34A04-1410-CR-499 | March 6, 2015     Page 7 of 7
