 MEMORANDUM DECISION                                        May 12 2015, 9:28 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
Cynthia M. Carter                                        Gregory F. Zoeller
Law Office of Cynthia M. Carter, LLC                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Kelly A. Miklos
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Sam J. Spicer II,                                        May 12, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         15A05-1409-CR-410
        v.                                               Appeal from the
                                                         Dearborn Circuit Court
State of Indiana,                                        The Honorable James D.
                                                         Humphrey, Judge
Appellee-Plaintiff.
                                                         Cause No. 15C01-1402-FA-10




Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A05-1409-CR-410 | May 12, 2015     Page 1 of 11
[1]   Sam J. Spicer II (“Spicer”) pleaded guilty to conspiracy to commit dealing in

      methamphetamine in an amount of three grams or more1 as a Class A felony,

      and the trial court sentenced him to forty years executed. On appeal, Spicer

      challenges his sentence, arguing that the trial court abused its discretion when it

      considered improper aggravating factors and that his sentence is inappropriate

      in light of the nature of the offense and the character of the offender.


[2]   We affirm.


                                   Facts and Procedural History
[3]   Following a tip, detectives of the Dearborn County Sheriff’s Department

      initiated an investigation into a possible methamphetamine manufacturing

      operation. Over a period of time, the detectives observed two individuals, later

      identified as Spicer and Lisa Ellis (“Ellis”), “continuously involved in the

      criminal activity” of transporting numerous individuals to pharmacies in

      Dearborn County, with the goal of purchasing pseudoephedrine. Appellant’s

      App. at 15.


[4]   As part of the scheme, Spicer would deliver the pseudoephedrine to Vernis

      Newton (“Newton”) in Ohio and to an unnamed individual in Kentucky;

      methamphetamine was manufactured in both locations. Each ninety-six count




      1
        See Ind. Code § 35-41-5-2; Ind. Code § 35-48-4-1.1. We note that, effective July 1, 2014, new versions of the
      criminal statutes with which Spicer was charged were enacted, but because he committed his crimes prior to
      that date, we will apply the applicable statutes in effect at that time.

      Court of Appeals of Indiana | Memorandum Decision 15A05-1409-CR-410 | May 12, 2015                Page 2 of 11
      box of pseudoephedrine that was purchased could produce approximately two

      grams of methamphetamine. Spicer and Newton had an arrangement by which

      Newton would give Spicer one gram of methamphetamine, and Newton would

      keep the rest. Spicer, in turn, kept one half gram of methamphetamine for

      himself and gave the other half to the individual who had purchased the box of

      pseudoephedrine. The people involved in this conspiracy were mostly addicts

      and undereducated, some having only an eighth grade education.


[5]   The probable cause affidavit, signed by Detectives Norman Rimstidt2 and Carl

      Pieczonka, described various purchases observed by the detectives. Id. at 15-22.

      In all, the detectives saw individuals purchasing five-and-a-half boxes of

      pseudoephedrine, an amount detectives estimated “is equivalent to 15.84 grams

      of pseudoephedrine.” Id. at 21. This amount of pseudoephedrine was “well in

      excess of what it would take to manufacture more than three grams of

      methamphetamine.” Id.


[6]   On February 14, 2014, the State charged Spicer and approximately twenty-four

      other co-defendants with Class A felony conspiracy to commit dealing in

      methamphetamine in an amount of three grams or more. The overt act alleged

      to be in furtherance of the agreement was the purchase of pseudoephedrine for

      the manufacture of methamphetamine.




      2
       Although Spicer refers to Rodney Rimstidt, Appellant’s Br. at 2, we refer to Norman Rimstidt, which is the
      name used in the Probable Cause Affidavit. Appellant’s App. at 15, 22.

      Court of Appeals of Indiana | Memorandum Decision 15A05-1409-CR-410 | May 12, 2015                Page 3 of 11
[7]   Spicer initially pleaded not guilty; however, three days before trial, he decided

      to change his plea. Before accepting Spicer’s open plea of guilty to having

      committed the Class A felony, the trial court informed him that a “Class A

      felony is punishable by a jail sentence from twenty to fifty years, advisory

      sentence of thirty years, possible fine of up to $10,000.00.” Tr. at 69.


[8]   During Spicer’s sentencing hearing, the trial court considered aggravating and

      mitigating factors. The trial court found the nature and circumstances of the

      crime to be a significant aggravating factor. Of particular note, the trial court

      cited the size and multi-state scope of the methamphetamine manufacturing

      operation, that Spicer was “the ringleader,” and that he took advantage of

      certain participants, many of whom were mentally challenged and struggled

      with addiction themselves. Id. at 146-47. The trial court found Spicer’s claim –

      that he was involved in the scheme merely to obtain methamphetamine to use

      for weight loss purposes – to be “ludicrous and unbelievable.” Id. at 147.

      Spicer’s criminal history, which dated back to 2003 and consisted of two prior

      felony convictions and five prior unrelated misdemeanor convictions, was also

      considered by the trial court to be a significant aggravating factor. Likewise,

      the trial court found it to be significant that Spicer was on probation for a felony

      conviction at the time he committed the current offense. Id.


[9]   By pleading guilty, Spicer had admitted his involvement in this scheme. The

      trial court found that the facts “confirmed [Spicer’s] overwhelming guilt.” Id. at

      148. Nevertheless, the trial court noted that Spicer continued to “deny a

      significant involvement in this case,” did “not recognize the significant harm he

      Court of Appeals of Indiana | Memorandum Decision 15A05-1409-CR-410 | May 12, 2015   Page 4 of 11
       caused to individuals and the tri-state community [(Indiana, Ohio, and

       Kentucky)] in this manufacturing scheme,” and showed a lack of remorse for

       his actions in this case. Id. Finally, unpersuaded by Spicer’s claim that his

       diabetes and concern for losing weight had caused him to once again use

       methamphetamine, id. at 134, the trial court noted that even though Spicer had

       completed drug abuse and rehabilitation classes, he had failed to comply with

       the ordered follow-up services of Alcoholics Anonymous or other drug

       treatment or counseling services. Id. at 148.


[10]   The trial court found two mitigating factors, neither of which it deemed to be

       significant. Regarding Spicer’s guilty plea, the trial court found that its

       mitigating impact was lessened by the fact that there was overwhelming

       evidence of Spicer’s guilt. Appellant’s App. at 197. The trial court also

       discounted Spicer’s claim that his imprisonment would result in hardship for his

       mother and his three children on the basis that: previous arrangements had

       been made for the children even before Spicer was charged or incarcerated; and

       it was Spicer’s mother, not Spicer, who had “been the primary caregiver for the

       children almost since their birth.” Id. Balancing the factors, the trial court

       concluded that the aggravators outweighed the mitigators and sentenced Spicer

       to forty years executed. Spicer now appeals.


                                      Discussion and Decision
[11]   Spicer raises two sentencing issues on appeal. First, he contends that the trial

       court abused its discretion when it considered improper aggravating factors, and


       Court of Appeals of Indiana | Memorandum Decision 15A05-1409-CR-410 | May 12, 2015   Page 5 of 11
       second, he maintains that his sentence is inappropriate in light of the nature of

       the offense and the character of the offender.


                                       I. Abuse of Discretion
[12]   Sentencing decisions rest within the sound discretion of the trial court.

       Winkleman v. State, 22 N.E.3d 844, 852 (Ind. Ct. App. 2014) (citing Anglemyer v.

       State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on other grounds, 875 N.E.2d 218

       (Ind. 2007)), trans. denied. As long as the sentence is within the statutory range,

       it is subject to review only for an abuse of discretion. Id. An abuse of discretion

       will be found where 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. Under the advisory sentencing scheme,

       a trial court may abuse its discretion by (1) failing to enter a sentencing

       statement at all; (2) entering a sentencing statement that includes aggravating

       and mitigating factors that are unsupported by the record; (3) entering a

       sentencing statement that omits reasons that are clearly supported by the

       record; or (4) entering a sentencing statement that includes reasons that are

       improper as a matter of law. Id. (citing Anglemyer, 868 N.E.2d at 490-91). If a

       trial court abuses its discretion, “remand for resentencing may be the

       appropriate remedy if we cannot say with confidence that the trial court would

       have imposed the same sentence had it properly considered reasons that enjoy

       support in the record.” Id.




       Court of Appeals of Indiana | Memorandum Decision 15A05-1409-CR-410 | May 12, 2015   Page 6 of 11
[13]   During sentencing, the trial court identified numerous aggravators. Spicer does

       not contest the trial court’s conclusions that his criminal history and being on

       probation at the time he committed the instant offense are significant

       aggravating factors. Instead, Spicer complains that the trial court abused its

       discretion when it considered as aggravating factors (1) the nature and

       circumstances of the crime, (2) Spicer’s lack of remorse, and (3) his failure to

       seek help for his drug addiction. Specifically, Spicer argues that these were

       inappropriate considerations because those factors are not enumerated as

       aggravators in the sentencing criteria set forth in Indiana Code section 35-38-1-

       7.1. Appellant’s Br. at 11.


[14]   While recognizing that Spicer’s guilty plea and the hardship his imprisonment

       would cause to his family were mitigating factors, the trial court concluded that

       these mitigators lacked significance because of the overwhelming evidence of

       Spicer’s guilt and the fact that his mother had always cared for his children. As

       to the aggravators, the trial court found that Spicer’s criminal history of two

       prior felonies and five prior unrelated misdemeanors was significant. The trial

       court found that Spicer’s status of being on probation at the time he committed

       the instant offense was also a significant aggravating factor. Spicer does not

       contest these two findings. Adding to this, the trial court considered that

       Spicer’s refusal to admit he was involved in the scheme, even after having

       pleaded guilty, was a reflection of his lack of remorse. Finally, the trial court

       found that the nature and circumstances of the conspiracy, i.e., its size, scope,

       and Spicer’s role in the conspiracy, was a significant aggravating factor.


       Court of Appeals of Indiana | Memorandum Decision 15A05-1409-CR-410 | May 12, 2015   Page 7 of 11
[15]   Contrary to Spicer’s suggestion, a trial court is not limited to considering only

       the aggravators set forth in section 35-38-1-7.1(a). See I.C. § 35-38-1-7.1(c)

       (“The criteria listed in subsections (a) . . . do not limit the matters that the court

       may consider in determining the sentence.”). More to the point, this court has

       upheld sentences in which the trial court enhanced a sentence on the basis of

       nature and circumstances of the crime as well as lack of remorse. See Caraway v.

       State, 959 N.E.2d 847, 850 (Ind. Ct. App. 2011), trans. denied (although trial

       court may not use material element of offense as aggravating circumstance, it

       may find nature and circumstances of offense to be aggravating circumstance);

       see also Deane v. State, 759 N.E.2d 201, 205 (Ind. 2001) (lack of remorse is proper

       factor to consider in imposing sentence).


[16]   It is well-settled that a single aggravating factor is sufficient to warrant an

       enhanced sentence. Guzman v. State, 985 N.E.2d 1125, 1133 (Ind. Ct. App.

       2013) (citing Morgan v. State, 829 N.E.2d 12, 15 (Ind. 2005); Gibson v. State, 702

       N.E.2d 707, 710 (Ind. 1998)). Here, assuming without deciding that Spicer’s

       failure to obtain court-ordered assistance was an improper aggravating factor,

       the remaining aggravators were sufficient for the trial court to enhance Spicer’s

       sentence to a level that is ten years above the advisory sentence of thirty years

       and ten years below the maximum of fifty years. The trial court did not abuse

       its discretion when it balanced Spicer’s mitigators and aggravators and imposed

       a forty-year sentence.




       Court of Appeals of Indiana | Memorandum Decision 15A05-1409-CR-410 | May 12, 2015   Page 8 of 11
                                       II. Appellate Rule 7(B)
[17]   Spicer next argues that his sentence is inappropriate in light of the nature of the

       offense and his character. Indiana Appellate Rule 7(B) empowers us to

       independently review and revise sentences authorized by statute if, after due

       consideration, we find the trial court’s decision inappropriate in light of the

       nature of the offense and the character of the offender. Anderson v. State, 989

       N.E.2d 823, 827 (Ind. Ct. App. 2013) (citing Reid v. State, 876 N.E.2d 1114,

       1116 (Ind. 2007)), trans. denied. The “nature of offense” compares the

       defendant’s actions with the required showing to sustain a conviction under the

       charged offense, while the “character of the offender” permits for a broader

       consideration of the defendant’s character. Id. “‘The burden is on the

       defendant to persuade’ the appellate court that his or her sentence is

       inappropriate.” Carroll v. State, 922 N.E.2d 755, 757 (Ind. Ct. App. 2010)

       (quoting Reid, 876 N.E.2d at 1116), trans. denied.


[18]   Here, Spicer does not set out specific arguments relating to the nature of the

       offense or the character of the offender. Instead, citing to Cardwell v. State, 895

       N.E.2d 1219, 1224 (Ind. 2008), he notes that the appropriateness of a sentence

       turns on the appellate court’s “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.” Appellant’s Br. at 14-15. Based on that standard,

       Spicer asserts that his culpability in relation to his co-defendants is unclear as

       they “were all drug addicts who collaborated as a method of securing the fuel

       for their consuming drug addictions.” Appellant’s Br. at 15. Spicer offers that

       Court of Appeals of Indiana | Memorandum Decision 15A05-1409-CR-410 | May 12, 2015   Page 9 of 11
       “at worst, he was a ‘middleman’ who went back and forth between Ohio, but

       he did not act alone.” Id. Finally, he argues that his old car and house trailer in

       Rising Sun reveal that he was not making the money, “somebody other than

       Spicer was calling the shots.” Id.


[19]   As to the nature of the offense, the conspiracy was large in both scope and size.

       There were at least twenty-four co-conspirators and the operation extended

       from Indiana into Ohio and Kentucky. By his own admission, Spicer was the

       only one among the co-conspirators who had a driver’s license and was able to

       coordinate the transport of individuals and their purchase of pseudoephedrine.

       Tr. at 129. He, among the twenty-four co-conspirators, was the only one who

       knew and made contact with Newton and the Kentucky manufacturer, and he

       was the one who took one-half gram of methamphetamine for each box of

       pseudoephedrine delivered, regardless of which individual had made the

       purchase. Id. As part of his operation, Spicer used individuals, most of whom

       were addicts, and many of whom were undereducated. Three of the co-

       conspirators had only an eighth grade education, tr. at 14-15, and

       approximately four more had no more than a tenth grade education. Id. at 15.

       Ellis estimated that Spicer had supplied Newton and the Kentucky

       manufacturer with more than 100 boxes of pseudoephedrine; that was enough

       to make over 200 grams of methamphetamine. Appellant’s App. at 46. The

       advisory sentence for a Class A felony is thirty years, with the maximum

       sentence being fifty years. Based on the nature of the offense, Spicer’s forty-

       year sentence was not inappropriate.


       Court of Appeals of Indiana | Memorandum Decision 15A05-1409-CR-410 | May 12, 2015   Page 10 of 11
[20]   Spicer’s character was revealed, in part, by his criminal history. Spicer had two

       prior felonies and five prior unrelated misdemeanors, and he was on probation

       for a felony at the time he committed the instant offense. While Spicer pleaded

       guilty to transporting co-conspirators to pharmacies to buy pseudoephedrine,

       for which they would be paid in methamphetamine, and Spicer admitted to

       taking a cut from each gram of methamphetamine he received, Spicer still

       refused to admit at sentencing that he was significantly involved in the scheme.

       Tr. at 115-16, 123-24. Based on Spicer’s character, an enhancement of his

       sentence from the thirty-year advisory to forty years was not inappropriate.

       Spicer has failed to meet his burden of proving that his sentence was

       inappropriate in light of the nature of the offense and the character of the

       offender.


[21]   Affirmed.


[22]   Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A05-1409-CR-410 | May 12, 2015   Page 11 of 11
