MEMORANDUM DECISION
                                                                  Dec 14 2015, 8:48 am
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
Andrew C. Maternowski                                    Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Aaron S. Buck,                                          December 14, 2015

Appellant-Defendant,                                    Court of Appeals Case No.
                                                        89A01-1503-CR-101
        v.                                              Appeal from the Wayne Circuit
                                                        Court.
State of Indiana,                                       The Honorable David A. Kolger,
                                                        Judge.
Appellee-Plaintiff.                                     Cause No. 89C01-1403-FC-30




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 89A01-1503-CR-101 |December 14, 2015   Page 1 of 8
                                           Statement of the Case
[1]   Aaron S. Buck appeals the sentence he received for his conviction of dealing in
                                                                                  1
      marijuana weighing more than ten pounds, a Class C felony , and his
                                                                   2
      adjudication as an habitual substance offender. We affirm.


                                                          Issue
[2]   Buck presents one issue for our review: whether his sentence is inappropriate in

      light of the nature of the offenses and the character of the offender.


                                   Facts and Procedural History
[3]   In March 2014, as part of a drug task force investigation, a search warrant was

      issued for Buck’s residence. In executing the search warrant, officers found in

      excess of 10 pounds of marijuana, a large amount of cash, and drug

      paraphernalia. Buck was charged with dealing in marijuana, maintaining a

      common nuisance, and being an habitual substance offender.


[4]   On February 19, 2015, Buck pleaded guilty as charged and admitted to being an

      habitual substance offender. The trial court sentenced Buck to five years for his

      dealing in marijuana conviction and two years for his maintaining a common

      nuisance conviction, to be served concurrently with his sentence for dealing in

      marijuana. The trial court enhanced his sentence for dealing in marijuana an




      1
          Ind. Code § 35-48-4-10 (2013).
      2
          Ind. Code § 35-50-2-10 (2006) (repealed July 1, 2014).


      Court of Appeals of Indiana | Memorandum Decision 89A01-1503-CR-101 |December 14, 2015   Page 2 of 8
      additional four years for his adjudication as an habitual substance offender for

      an aggregate executed sentence of nine years. It is from this sentence that Buck

      appeals.


                                   Discussion and Decision
[5]   Buck’s sole claim on appeal is that his sentence is inappropriate in light of the

      nature of his offenses and his character. In his brief, he notes that he is only

      appealing his sentences for his conviction of dealing in marijuana and his

      adjudication as an habitual substance offender.


[6]   Although a trial court may have acted within its lawful discretion in imposing a

      sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize

      independent appellate review and revision of sentences through Indiana

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

      by statute if, after due consideration of the trial court’s decision, we determine

      that the sentence is inappropriate in light of the nature of the offense and the

      character of the offender. Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App.

      2014). However, “we must and should exercise deference to a trial court’s

      sentencing decision, both because Rule 7(B) requires us to give ‘due

      consideration’ to that decision and because we understand and recognize the

      unique perspective a trial court brings to its sentencing decisions.” Stewart v.

      State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The principal role of appellate

      review under Rule 7(B) is to attempt to leaven the outliers, not to achieve a

      perceived “correct” result in each case. Garner v. State, 7 N.E.3d 1012, 1015


      Court of Appeals of Indiana | Memorandum Decision 89A01-1503-CR-101 |December 14, 2015   Page 3 of 8
      (Ind. Ct. App. 2014). In other words, the question under Appellate Rule 7(B) is

      not whether another sentence is more appropriate; rather, the question is

      whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

      268 (Ind. Ct. App. 2008). The defendant bears the burden of persuading the

      appellate court that his sentence is inappropriate. Childress v. State, 848 N.E.2d

      1073, 1080 (Ind. 2006).


[7]   To assess whether a sentence is inappropriate, we look first to the statutory

      range established for the class of the offense at the time the offense occurred.

      The offense of dealing in marijuana weighing more than 10 pounds was a Class

      C felony, for which the advisory sentence was four years, with a minimum

      sentence of two years and a maximum sentence of eight years. Ind. Code § 35-

      50-2-6 (2005). Buck was also adjudicated an habitual substance offender for

      which the minimum sentence enhancement was three years, and the maximum

      was eight years. Ind. Code § 35-50-2-10(f). Here, the trial court sentenced Buck

      to five years on dealing in marijuana and an additional four years on the

      habitual substance offender; thus, he did not receive a maximum sentence for

      either offense.


[8]   The habitual substance offender statute was repealed as of July 1, 2014, after

      Buck committed these offenses and was charged in March 2014. He asserts that

      his sentence is rendered inappropriate by the elimination of this sentence

      enhancement in the revised criminal code because it demonstrates a recognition

      by our state legislature that “adding up to 8 years . . . to a marijuana offense is

      inappropriate.” Appellant’s Br. p. 5.

      Court of Appeals of Indiana | Memorandum Decision 89A01-1503-CR-101 |December 14, 2015   Page 4 of 8
[9]    Generally, the sentencing statutes in effect at the time a defendant commits an

       offense govern the defendant’s sentence. Marley v. State, 17 N.E.3d 335, 340

       (Ind. Ct. App. 2014), trans. denied. The doctrine of amelioration provides an

       exception to this general rule; however, this doctrine does not apply where the

       legislature has included a specific savings clause. Id. In enacting the new

       criminal code, the General Assembly enacted savings clauses stating that the

       new criminal code does not affect penalties incurred, crimes committed, or

       proceedings begun before the effective date of the new code and that the

       penalties, crimes and proceedings continue and shall be imposed and enforced

       under prior law as if the new code had not been enacted. See Ind. Code §§ 1-1-

       5.5-21 and 22 (2014). The statutes further state, in no uncertain terms, that the

       general assembly does not intend the doctrine of amelioration to apply to any

       section of the new criminal code. Id. Moreover, the time of a crime is selected

       as an act of free will by the offender; thus, it is the criminal, not the State, who

       chooses which statutes apply to his offense and sentence. Rondon v. State, 711

       N.E.2d 506, 513 (Ind. 1999).


[10]   Recently, a panel of this Court remarked, “[i]t is abundantly clear from these

       statutes that the General Assembly intended the new criminal code to have no

       effect on criminal proceedings for offenses committed prior to the enactment of

       the new code. We think this is true with regard to considering the

       appropriateness of a sentence under Appellate Rule 7(B); we are to proceed as if

       the new criminal code had not been enacted.” Marley, 17 N.E.3d at 340. We

       agree and therefore decline, in addressing the appropriateness of Buck’s


       Court of Appeals of Indiana | Memorandum Decision 89A01-1503-CR-101 |December 14, 2015   Page 5 of 8
       sentence, to take into consideration the fact that the new criminal code

       eliminated the habitual substance offender enhancement. Instead, we consider

       what Appellate Rule 7(B) requires us to consider — the nature of the offense

       and the character of the offender.


[11]   Turning to the nature of the offense, we note that Buck was convicted of

       dealing in marijuana as a Class C felony. In addition, although not challenging

       his sentence on the offense, he was convicted of maintaining a common

       nuisance as a Class D felony. He admitted to dealing marijuana from his

       family home where he lived with his wife and their sixteen-year-old daughter.

       When the officers executed the search warrant, they found more than ten

       pounds of marijuana, more than $100,000.00 in cash, drug paraphernalia, guns,

       and a bullet-proof vest.


[12]   With regard to the character of the offender, we observe that Buck has a

       criminal history that extends from his juvenile years into adulthood. As a

       teenager, Buck was adjudicated a delinquent for two counts of child molesting

       that would have been Class B felonies if committed by an adult.


[13]   As an adult, Buck was convicted of burglary as a Class C felony in 2000, and, in

       2002, his probation was revoked, and he was ordered to serve eighteen months

       of his previously-suspended sentence. Later in 2002, he was convicted of a

       drug-related charge of maintaining a common nuisance as a Class D felony. In

       2006, he was convicted of possession of marijuana as a Class A misdemeanor.




       Court of Appeals of Indiana | Memorandum Decision 89A01-1503-CR-101 |December 14, 2015   Page 6 of 8
[14]   Now Buck seeks a shorter sentence so that he can obtain substance abuse

       treatment. In his brief, he blames his criminal history on his upbringing, his

       limited education, and his becoming a father at a young age. Although Buck

       had only an 8th grade education, he earned his GED in 2003 while incarcerated.

       Moreover, he had learned carpentry skills and was working in that field when

       he began dealing marijuana. At the sentencing hearing, he testified that “it was

       just really the economy” that caused him to deal marijuana. Tr. p. 26. He

       explained that he was not getting as much carpentry work, and he saw the

       material things possessed by those involved in the drug trade, so he began

       selling marijuana from his home where he lived with his wife and his teenage

       daughter. Buck’s daughter wrote a letter to the court that was introduced at his

       sentencing hearing, and in it she told the court that Buck had promised her he

       would “never make the same mistake again.” Ex. 1. However, as evidenced by

       his own words, his actions were not a mistake but rather a conscious choice he

       made in order to obtain material items through illegal means.


[15]   Buck not only sold marijuana, he also used it. He reported using marijuana “a

       couple times per week” from ages sixteen to twenty-four and then daily from

       age twenty-four to his arrest at age thirty-two. PSI p. 7. Additionally, he has

       participated in substance abuse counseling during previous incarcerations but,

       as evidenced by his criminal history and his admission to his ongoing marijuana

       use, he has shown little interest or effort in addressing his substance abuse. It is

       clear that prior brushes with the law as well as attempts at substance abuse

       programs have proven ineffective to rehabilitate Buck. If Buck truly wants to


       Court of Appeals of Indiana | Memorandum Decision 89A01-1503-CR-101 |December 14, 2015   Page 7 of 8
       end his substance abuse and support his family in a law-abiding manner, the

       Department of Correction offers substance abuse programs. Buck has not

       carried his burden of persuading this Court that his sentence has met the

       inappropriateness standard of review.


                                               Conclusion
[16]   For the reasons stated, we conclude that Buck’s sentence is not inappropriate in

       light of his offenses and his character.


[17]   Affirmed.


[18]   Barnes, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 89A01-1503-CR-101 |December 14, 2015   Page 8 of 8
