MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                           Apr 27 2018, 7:09 am
regarded as precedent or cited before any
                                                                     CLERK
court except for the purpose of establishing                     Indiana Supreme Court
                                                                    Court of Appeals
the defense of res judicata, collateral                               and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Emilee L. Stotts                                         Curtis T. Hill, Jr.
Marion, Indiana                                          Attorney General

                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Andrew Keith Delagrange,                                 April 27, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         35A02-1712-CR-2957
        v.                                               Appeal from the Huntington
                                                         Superior Court
State of Indiana,                                        The Honorable Jennifer E.
Appellee-Plaintiff                                       Newton, Judge
                                                         Trial Court Cause No.
                                                         35D01-1705-F3-104



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 35A02-1712-CR-2957 | April 27, 2018    Page 1 of 6
                                                  Case Summary
[1]   Andrew Keith Delagrange appeals the twelve-year sentence imposed by the trial

      court following his guilty plea to one count of level 4 felony dealing in a

      narcotic drug and two counts of level 5 felony dealing in a narcotic drug. He

      asserts that his sentence is inappropriate in light of the nature of the offenses

      and his character. Concluding that Delagrange has not met his burden to

      demonstrate that his sentence is inappropriate, we affirm.


                                     Facts and Procedural History
[2]   On November 4, 2016, Delagrange sold 1.49 grams of hydromorphone, a

      schedule II narcotic drug, to a confidential informant working for the

      Huntington City Police Department. The following day, Delagrange sold .08

      grams of hydromorphone and .4 grams of heroin, a schedule I narcotic drug, to

      a confidential informant working for the Huntington City Police Department.

      These sales took place near a public park where children were present.

      Delagrange was arrested and charged with one count of level 3 felony dealing in

      a narcotic drug and two counts of level 5 felony dealing in a narcotic drug. The

      State later amended the charging information to add one count of level 4 felony

      dealing in a narcotic drug. The State subsequently dismissed the level 3 felony

      count.1




      1
       The level 3 felony count was voluntarily dismissed by the State because the State realized that although
      Delagrange sold drugs within 500 feet of a park while children were present, he was not technically within
      500 feet of what is considered a “public” area of that particular park. Tr. Vol. 2 at 48; Ind. Code § 35-48-4-
      1(d)(2) (providing that offense of dealing in a narcotic drug is a level 3 felony if amount of drug is at least one

      Court of Appeals of Indiana | Memorandum Decision 35A02-1712-CR-2957 | April 27, 2018                   Page 2 of 6
[3]   Delagrange pled guilty to the level 4 felony count and the level 5 felony counts,

      and the trial court held a sentencing hearing on December 12, 2017. The trial

      court sentenced Delagrange to twelve years, with two years suspended to

      probation, for the level 4 felony, and six years executed for each of the level 5

      felonies. All sentences were ordered served concurrently, for an aggregate

      sentence of twelve years, and a total executed sentence of ten years. This

      appeal ensued.


                                       Discussion and Decision
[4]   Delagrange claims that his sentence is inappropriate and invites this Court to

      reduce it pursuant to 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 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 or her sentence is inappropriate.

      Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). 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).

      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



      gram but less than five grams and “an enhancing circumstance applies.”); Ind. Code § 35-48-1-16.5
      (“Enhancing circumstance” includes “in, on, or within five hundred feet of: … (ii) a public park while a
      person under eighteen (18) years of age was reasonably expected to be present.”).

      Court of Appeals of Indiana | Memorandum Decision 35A02-1712-CR-2957 | April 27, 2018              Page 3 of 6
      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.


[5]   We consider all aspects of the penal consequences imposed by the trial court in

      sentencing the defendant, including whether a portion of the sentence is ordered

      suspended “or otherwise crafted using any of the variety of sentencing tools

      available to the trial judge.” Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.

      2010). In conducting our review, we do not look to see whether the defendant’s

      sentence is appropriate or “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).


[6]   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 sentencing range

      for a level 4 felony is between two and twelve years, with the advisory sentence

      being six years. Ind. Code § 35-50-2-5.5. The sentencing range for a level 5

      felony is between one and six years, with the advisory sentence being three

      years. The trial court here imposed the maximum twelve-year sentence, with

      two years suspended to probation, for the level 4 felony, and the maximum six-

      year executed sentence for each of the level 5 felonies. All sentences were

      ordered served concurrently, for an aggregate sentence of twelve years, and a

      total executed sentence of ten years.



      Court of Appeals of Indiana | Memorandum Decision 35A02-1712-CR-2957 | April 27, 2018   Page 4 of 6
[7]   Delagrange argues that imposition of the maximum sentence on each count

      was inappropriate because there was nothing egregious about his offenses, as he

      simply delivered small amounts of hydromorphone and heroin to a confidential

      informant on back-to-back days. First, we are not persuaded by Delagrange’s

      attempts to minimize the seriousness of his repetitive drug-dealing behavior.

      More significantly, contrary to Delagrange’s assertion, he did not receive the

      maximum penalty authorized by statute. The trial court not only ordered the

      sentences to run concurrently, but it also ordered two years of the level 4 felony

      sentence suspended to probation, which indicates that the court reflected on his

      specific crimes and tailored his executed sentence accordingly. We remind

      Delagrange that the question is not whether another sentence might be more

      appropriate; rather, the question is whether the sentence imposed is

      inappropriate. See Fonner, 876 N.E.2d at 344.


[8]   Regardless, we need look no further than Delagrange’s character to justify the

      sentence imposed. When considering the character of the offender, one

      relevant fact is the defendant’s criminal history. Sanders v. State, 71 N.E.3d 839,

      844 (Ind. Ct. App. 2017), trans. denied. Twenty-five-year-old Delagrange has a

      juvenile criminal history as well as an extensive adult criminal history. His

      adult history consists of five felony convictions and two misdemeanor

      convictions. In addition, during the short period of his adulthood, he has been

      charged with countless misdemeanor drug offenses. Regarding his convictions,

      he has been granted the leniency of probation on multiple occasions only to

      violate that probation and have it revoked no less than eight times.


      Court of Appeals of Indiana | Memorandum Decision 35A02-1712-CR-2957 | April 27, 2018   Page 5 of 6
[9]    Delagrange is an admitted opioid addict who states that he sells drugs to feed

       his own addiction. The record indicates that he was selling the same drugs he

       has “overdosed [on] multiple times”2 in an area near where children were

       present. Tr. Vol. 2 at 51. We agree with the trial court that this behavior makes

       him a “danger to society.” Id. Delagrange’s refusal to address his addiction

       issues and to alter his criminal behavior reflects very poorly on his character.

       Under the circumstances, he has not convinced us that his twelve-year

       aggregate sentence, with two years suspended to probation, is inappropriate in

       light of the nature of the offenses or his character. The sentence imposed by the

       trial court is affirmed.


[10]   Affirmed.


       Bailey, J., and Brown, J., concur.




       2
         Delagrange testified that he has overdosed seventeen times in recent years, and on one occasion he was
       “dead for seven (7) minutes” before being resuscitated. Tr. Vol. 2 at 40. He stated that he then spent ninety-
       two days in the hospital and had to undergo physical therapy to “learn how to walk again.” Id. He stated
       that upon his release from the hospital, he simply “shot drugs again” because “nothing clicked” with him
       regarding his addiction. Id.

       Court of Appeals of Indiana | Memorandum Decision 35A02-1712-CR-2957 | April 27, 2018              Page 6 of 6
