MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              FILED
this Memorandum Decision shall not be                           Jan 30 2017, 8:30 am

regarded as precedent or cited before any                           CLERK
court except for the purpose of establishing                    Indiana Supreme Court
                                                                   Court of Appeals
                                                                     and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kathie A. Perry                                          Curtis T. Hill, Jr.
Baldwin Kyle & Karnish                                   Attorney General of Indiana
Franklin, Indiana
                                                         Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Harry Spicer,                                            January 30, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         15A01-1512-CR-2205
        v.                                               Appeal from the Dearborn Circuit
                                                         Court
State of Indiana,                                        The Honorable James D.
Appellee-Plaintiff.                                      Humphrey, Judge
                                                         Trial Court Cause No.
                                                         15C01-1404-FA-35



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2205 | January 30, 2017   Page 1 of 17
                                         Statement of the Case
[1]   Harry Spicer (“Spicer”) appeals, following a jury trial, his conviction and

      sentence for Class A felony conspiracy to commit dealing in

      methamphetamine.1 Spicer argues that there was insufficient evidence to

      support his conviction and that his forty-year sentence is inappropriate.

      Concluding that there is sufficient evidence to support Spicer’s conviction and

      that Spicer—who was on probation from his conviction for Class B felony

      conspiracy to deal in a narcotic drug (methamphetamine) at the time of his

      offense—has failed to show that his sentence is inappropriate, we affirm his

      conviction and sentence.


[2]   We affirm.


                                                       Issues
              1. Whether sufficient evidence supports Spicer’s conviction.

              2. Whether Spicer’s sentence is inappropriate pursuant to
              Indiana Appellate Rule 7(B).


                                                       Facts
[3]   In January 2014, several law enforcement agencies—including officers in

      Dearborn County, Indiana and in Butler County, Ohio—were engaged in an




      1
       IND. CODE § 35-41-5-2; I.C. § 35-48-4-1.1. We note that, since the time of Spicer’s offense, the dealing in
      methamphetamine statute has been twice amended, effective July 2014 and July 2016, and that the
      conspiracy statute has been amended, effective July 2014. Because Spicer committed his offense in February
      2014, we will apply the statutes in effect at that time.

      Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2205 | January 30, 2017         Page 2 of 17
      investigation regarding a methamphetamine manufacturing operation. Spicer’s

      brother, Sam Spicer (“Sam”), and Lisa Ellis (“Ellis”) were two of the suspects

      in the methamphetamine manufacturing investigation. Through their

      investigation, officers discovered, in relevant part, that Ellis and Sam would

      take pseudoephedrine to a residence in Butler County, Ohio, where Vernis

      Newton (“Newton”) would use the pseudoephedrine to manufacture

      methamphetamine.2 For each 96-count box of pseudoephedrine that Ellis and

      Sam provided, Newton was able to manufacture two grams of

      methamphetamine, of which one gram would go to Newton and the other gram

      would go to Ellis and Sam to share. To obtain the necessary pseudoephedrine,

      Ellis and Sam either purchased the pseudoephedrine themselves or—due to

      monthly quantity limitations on how much pseudoephedrine a person could

      purchase3—they paid other people to purchase it.4


[4]   Around February 6, 2014, Ellis and Sam took five boxes of pseudoephedrine to

      Newton in Ohio so he could make some methamphetamine. While Ellis and




      2
       The residence was owned by Mike Wiscupps (“Wiscupps”) but used by Newton to manufacture the
      methamphetamine.
      3
        According to a police officer’s testimony at trial, a person is limited to purchasing 7.2 grams of
      pseudoephedrine every thirty days. See also IND. CODE § 35-48-4-14.7(e)(2) (2014) (providing that a “person
      may not purchase drugs containing more than . . . seven and two-tenths (7.2) grams of . . . pseudoephedrine .
      . . in a thirty (30) day period[.]”).
      4
       Ellis and Sam paid these people to purchase the pseudoephedrine with either methamphetamine or
      Suboxone.

      Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2205 | January 30, 2017          Page 3 of 17
      Sam were in Ohio, their car broke down. They borrowed Newton’s car, went

      to a Walmart, and Sam was arrested for shoplifting.


[5]   The following day, Ellis contacted Spicer about getting Sam bonded out of jail.

      Spicer and Ellis exchanged text messages and also spoke by phone. They were

      ultimately unable to bond Sam out of jail that day.5 Before returning to

      Indiana, Spicer took Ellis to see Newton, who “owed” Ellis some

      methamphetamine. (Tr. 107). Spicer drove Ellis back home to Indiana, and

      she shared the methamphetamine with Spicer. Ellis and Spicer then discussed

      taking boxes of pseudoephedrine to Newton the following day, and they each

      agreed to obtain some pseudoephedrine.


[6]   On February 8, 2014, Ellis texted Newton and told him, “Harry [Spicer]

      wanted me to ask you if you will do the same for him as you do [S]ammy [and]

      if so[]can we come see you[?]” (State’s Ex. 21). Newton responded, “How

      many[?]” (State’s Ex. 21). Ellis texted “5[,]” and Newton responded, “Come

      on[.]” (State’s Ex. 21).


[7]   Ellis had already purchased her monthly limit of pseudoephedrine, so she took

      Sebastian Duerstock (“Duerstock”) to a grocery store in Lawrenceburg to

      purchase a box of pseudoephedrine for her. Spicer, who was prohibited by law

      from purchasing pseudoephedrine due to his prior conviction, got someone else

      to purchase three boxes of pseudoephedrine. Spicer and Ellis then took the four



      5
          Sam was able to bond out of jail on February 10, 2014.


      Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2205 | January 30, 2017   Page 4 of 17
      boxes of pseudoephedrine to Newton in Ohio. They expected that they would

      ultimately get four grams of methamphetamine since those four boxes would be

      used to manufacture eight grams of methamphetamine. Newton gave them one

      gram of methamphetamine and said he needed to make some more, so they

      planned to return later to collect their other three grams of methamphetamine.

      Spicer and Ellis, however, were unable to return to collect the manufactured

      methamphetamine from Newton because he was arrested the following day.6


[8]   On February 13, 2014, Ellis, who was using methamphetamine, called the

      police because Sam was “drunk” and “was yelling all in [her] face[.]” (Tr. 114).

      When speaking to the police, Ellis ended up telling them about the multiple

      people involved in the pseudoephedrine purchasing/methamphetamine

      manufacturing scheme. She also specifically mentioned that Spicer was using

      methamphetamine and had gathered boxes of pseudoephedrine to take to Ohio

      when Sam was in jail. The police obtained a search warrant for Ellis’s cell

      phone records, performed a forensic analysis of her phone, and then conducted

      a recorded interview with Ellis on March 26, 2014. During this interview, the

      police questioned her about Spicer’s involvement.


[9]   Thereafter, on April 4, 2014, the State charged Spicer with Class A felony

      conspiracy to commit dealing in methamphetamine (based on manufacturing)




      6
        Following Newton’s arrest, the police executed a search warrant at the property that Newton used to
      manufacture the methamphetamine, and they found evidence and ingredients of an active methamphetamine
      lab.

      Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2205 | January 30, 2017   Page 5 of 17
       in an amount of three grams or more. The overt act alleged to be in furtherance

       of the agreement was the purchase of pseudoephedrine by Spicer or Ellis for the

       manufacture of methamphetamine.7


[10]   The trial court held a four-day jury trial on October 5-8, 2015. Ellis testified

       that on February 7, 2014, she and Spicer had a “conversation” “in person” and

       “planned” to get pseudoephedrine to give to Newton so he could manufacture

       some methamphetamine. (Tr. 152). She also testified that she and Spicer

       obtained a total of four boxes of pseudoephedrine and took them to Newton in

       Ohio. The State introduced into evidence a copy of Ellis’s text messages with

       Spicer and Newton.


[11]   The trial court instructed the jury regarding the Class A felony conspiracy to

       commit dealing in methamphetamine in an amount of three grams or more

       charge, and it also gave an included-offense instruction for Class B felony

       conspiracy to commit dealing in methamphetamine. The jury convicted Spicer

       of the Class A felony as charged.


[12]   When sentencing Spicer, the trial court found that his criminal history,

       including his commission of the current offense when on probation, was a




       7
        Aside from Spicer, twenty-five people, including Ellis, Sam, and Newton, ended up being charged with
       conspiracy to commit dealing in methamphetamine, and they all, with exception of Spicer, pled guilty to the
       charge.

       Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2205 | January 30, 2017         Page 6 of 17
“significant” aggravating circumstance. (Tr. 325). Specifically, when

addressing this aggravator, the trial court stated:


         The Pre-Sentence Investigation Report indicates [Spicer] has had
         one prior felony conviction and four other prior unrelated
         misdemeanor convictions. Even more significant is that [Spicer]
         was on probation for Dealing in a Narcotic Drug
         (Methamphetamine), a Class B felony, and Conspiracy to Deal
         in a Narcotic Drug (Methamphetamine), a Class B felony when
         he committed his current offense. [Spicer] is currently serving a
         probation violation sentence [and] a term of twelve years w[as]
         revoked in Cause No. 15D02-0610-FB-014 based upon the
         current case. The Court finds it significant that this is now
         [Spicer’s] second conviction involving Dealing in
         Methamphetamine in less than ten years. The Court also finds it
         significant that [Spicer] was given a relatively lenient sentence for
         his prior offenses and failed to take advantage of that
         opportunity. The Court also finds that [Spicer] now has two
         probation violations.


(Tr. 325-26).8 The trial court also addressed Spicer’s proposed mitigating

circumstances, which included undue hardship to his minor children and

Spicer’s health problems.9 The trial court rejected the undue hardship

mitigator, finding that Spicer had failed to show any undue hardship as his

mother had been caring for his children, who were ages eighteen and fourteen.




8
 Spicer appealed the revocation of his probation, and our Court affirmed the trial court’s judgment. See
Spicer v. State, No. 15A04-1504-CR-148 (Ind. Ct. App. Nov. 13, 2015).
9
  The trial court recognized that Spicer had a prior heart attack, which resulted in the placement of four stints
and that he “suffers from Type II diabetes, rheumatoid arthritis, high cholesterol, [and] high blood pressure
for which he takes daily medication to manage these medical conditions.” (Tr. 326).

Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2205 | January 30, 2017             Page 7 of 17
       The trial court found that Spicer’s health was a mitigating factor, but it

       determined that it was not a significant factor given his continued involvement

       with illegal drugs. The trial court imposed a forty (40) year sentence to be

       executed in the Department of Correction consecutively to his sentence from

       his probation revocation. Spicer now appeals.


                                                   Decision
       1. Sufficiency of Evidence


[13]   Spicer argues that the evidence was insufficient to support his Class A felony

       conspiracy to commit dealing in methamphetamine conviction.


[14]   “When conducting a sufficiency of the evidence review after a jury verdict, the

       appellate posture is markedly deferential to the outcome below[.]” Bowman v.

       State, 51 N.E.3d 1174, 1181 (Ind. 2016). Our Indiana Supreme Court has

       explained our applicable standard of review in a sufficiency case as follows:

               When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative
               evidence and reasonable inferences supporting the verdict. It is
               the fact-finder’s role, not that of appellate courts, to assess
               witness credibility and weigh the evidence to determine whether
               it is sufficient to support a conviction. To preserve this structure,
               when appellate courts are confronted with conflicting evidence,
               they must consider it most favorably to the trial court’s ruling.
               Appellate courts affirm the conviction unless no reasonable fact-
               finder could find the elements of the crime proven beyond a
               reasonable doubt. It is therefore not necessary that the evidence
               overcome every reasonable hypothesis of innocence. The


       Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2205 | January 30, 2017   Page 8 of 17
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.

       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks

       and citations omitted) (emphasis in original). “A conviction can be sustained

       on only the uncorroborated testimony of a single witness[.]” Bailey v. State, 979

       N.E.2d 133, 135 (Ind. 2012).


[15]   At the time of Spicer’s offense in February 2014, INDIANA CODE § 35-41-5-2

       (2014) provided that a “person conspires to commit a felony when, with intent

       to commit the felony, he agrees with another person to commit the felony” and

       that the State “must allege and prove that either the person or the person with

       whom he agreed performed an overt act in furtherance of the agreement.”

       Additionally, INDIANA CODE § 35-48-4-1.1(a)(1) (2014) provided that a person

       who knowingly or intentionally: (A) manufactures; (B) finances the

       manufacture of; (C) delivers; or (D) finances the delivery of methamphetamine

       commits dealing in methamphetamine as a Class B felony.10 This offense,

       however, was enhanced to a Class A felony when the amount of drug involved

       weighed three grams or more. I.C. § 35-48-4-1.1(b)(1) (2014). Thus, to convict

       Spicer as charged, the State was required to prove beyond a reasonable doubt

       that Spicer, with the intent to commit the felony of dealing in




       10
         At the time of Spicer’s offense, “manufacture” was defined, in relevant part, as “the production,
       preparation, propagation, compounding, conversion, or processing of a controlled substance . . .” or “the
       organizing or supervising of” the production, preparation, propagation, compounding, conversion, or
       processing of a controlled substance. I.C. § 35-48-1-18 (2014).

       Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2205 | January 30, 2017          Page 9 of 17
       methamphetamine in an amount of three grams or more, agreed with Ellis

       and/or Newton to commit the crime and that Spicer or Ellis performed an overt

       act in furtherance of that agreement, specifically that Spicer or Ellis obtained

       pseudoephedrine for the manufacture of methamphetamine.


[16]   Spicer does not challenge the amount of the drug at issue nor the overt act

       element. Indeed, Spicer concedes that he and Ellis each obtained

       pseudoephedrine and that they took four boxes of it to Newton, and he does not

       challenge that one box of pseudoephedrine would result in the manufacture of

       two grams of methamphetamine.


[17]   Instead, Spicer suggests that he did not intend to commit or agree to commit the

       felony of dealing in methamphetamine based on manufacturing. Spicer

       suggests that, in order to find him guilty of the charged offense, the State was

       required to provide specific evidence showing that he or Ellis had personal

       knowledge of, or an active role in, the methamphetamine manufacturing

       process. Spicer does not dispute that he and Ellis agreed to obtain the

       pseudoephedrine, and he acknowledges that he and Ellis were “certainly in

       possession of methamphetamine[.]” (Spicer’s Br. 10). He, however, asserts

       that there was no specific evidence regarding an agreement to actually

       manufacture methamphetamine because the State did not provide any evidence

       to show that he had “obtain[ed] all of the ingredients and equipment necessary,

       set-up either a mobile lab or a stand-alone laboratory, or [had] knowledge of the

       process of manufacturing methamphetamine.” (Spicer’s Br. 13).



       Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2205 | January 30, 2017   Page 10 of 17
[18]   It is not necessary for the State to present direct evidence of a formal express

       agreement. Erkins v. State, 13 N.E.3d 400, 407 (Ind. 2014), reh’g denied, cert.

       denied. Indeed, “[t]he agreement as well as the requisite guilty knowledge and

       intent may be inferred from circumstantial evidence alone, including overt acts

       of the parties in pursuance of the criminal act.” Id.


[19]   Here, the State presented evidence that Newton had been manufacturing

       methamphetamine on a property in Ohio, and it presented specific evidence,

       including testimony and photographs, regarding the manufacturing process and

       manufacturing ingredients that were found at the property during the execution

       of a search warrant for that property. The State also presented evidence that

       Ellis and Spicer’s brother, Sam, had long been involved in a scheme of

       obtaining pseudoephedrine and taking it to Newton, who then used that

       pseudoephedrine to manufacture methamphetamine. For each 96-count box of

       pseudoephedrine that Ellis and Sam took to Newton, he could make two grams

       of methamphetamine, of which one gram would go to Newton and the other

       gram was then split between Ellis and Sam. Ellis testified that when Sam was

       in jail in Ohio, Spicer went to Ohio to pick her up and was with her when she

       got some methamphetamine from Newton. She testified that upon returning to

       Indiana, she and Spicer discussed getting more boxes of pseudoephedrine to

       take to Newton so he could manufacture some methamphetamine. The State

       introduced a copy of Ellis’s text message, in which she told Newton that Spicer

       wanted to know if Newton would “do the same for him as [he] d[id] [for]

       [S]ammy[.]” (State’s Ex. 21). Additional text messages reveal that Newton


       Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2205 | January 30, 2017   Page 11 of 17
       agreed to do so and told Ellis that she and Spicer could bring him the boxes of

       pseudoephedrine. Moreover, the State presented evidence that Spicer and Ellis

       collectively obtained four 96-count boxes of pseudoephedrine and took them to

       Newton in Ohio, and Ellis testified that she and Spicer were going to go back to

       Ohio to get their four grams of methamphetamine after Newton used the

       pseudoephedrine to make the methamphetamine.


[20]   Based on the evidence presented during the jury trial, we find that there is

       sufficient evidence from which the jury could have found that Spicer entered

       into an agreement with Ellis and/or Newton to manufacture methamphetamine

       by providing the pseudoephedrine necessary to complete that manufacturing

       process. Spicer’s argument is nothing more than a request to reweigh the

       evidence and witness credibility. We, however, will not reweigh the evidence

       or the finder of fact’s credibility determination. See Drane, 867 N.E.2d at 146.

       Because there was probative evidence from which the jury could have found

       Spicer guilty beyond a reasonable doubt of Class A felony conspiracy to

       commit dealing in methamphetamine, we affirm his conviction.


       2. Inappropriate Sentence


[21]   Spicer argues that his forty-year sentence was inappropriate when considering

       his “minor role in the overall methamphetamine operation, his character, and

       the sentences of Ellis and Newton[,]” and he generally requests that he be

       “resentenced.” (Spicer’s Br. 7, 17).




       Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2205 | January 30, 2017   Page 12 of 17
[22]   We may revise a sentence if it is inappropriate in light of the nature of the

       offense and the character of the offender. Ind. Appellate Rule 7(B). The

       defendant has the burden of persuading us that his sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a

       Rule 7(B) review “should be to attempt to leaven the outliers, and identify some

       guiding principles for trial courts and those charged with improvement of the

       sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

       Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “Appellate Rule 7(B)

       analysis is not to determine whether another sentence is more appropriate but

       rather whether the sentence imposed is inappropriate.” Conley v. State, 972

       N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted),

       reh’g denied.


[23]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence “is the starting point the Legislature has selected as an

       appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.

       Here, the jury convicted Spicer of Class A felony conspiracy to commit dealing

       in methamphetamine. A Class A felony has a range of twenty (20) to fifty (50)

       years with an advisory sentence of thirty (30) years. I.C. § 35-50-2-4. The trial

       court imposed a term of forty (40) years for Spicer’s Class A felony conviction.


[24]   The nature of Spicer’s offense involved him entering into an agreement that was

       to ultimately lead to the manufacturing of methamphetamine. While Spicer

       was not the person who made the methamphetamine, he did supply a necessary

       ingredient in the manufacturing process. Even though he was prohibited by law

       Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2205 | January 30, 2017   Page 13 of 17
       from purchasing pseudoephedrine because of his prior methamphetamine

       conviction, he nevertheless obtained three boxes of pseudoephedrine and then

       crossed state lines to deliver that pseudoephedrine to Newton so that he could

       manufacture the methamphetamine. Indeed, Spicer acknowledges that his

       “objective was to obtain methamphetamine[.]” (Spicer’s Br. 15). He, however,

       contends that the nature of his offense did not justify an enhanced sentence,

       arguing that his involvement was “quite insignificant.” (Spicer’s Br. 15).


[25]   In support of this argument, Spicer attempts to liken his case to Norris v. State,

       27 N.E.3d 333 (Ind. Ct. App. 2015). In that case, Norris pled guilty to Class B

       felony dealing in a controlled substance after he sold ten hydrocodone pills to a

       confidential informant for $60.00, and the trial court sentenced him to twenty

       (20) years, the maximum for a Class B felony. Norris, 27 N.E.3d at 334-35. On

       appeal, this Court reduced Norris’s sentence under Appellate Rule 7(B). Id. at

       336. We noted that Norris had four convictions for possession of marijuana

       and was on probation when he committed the offense, but we determined that

       the nature of his offense—which we described as “relatively innocuous” given

       the “small amount of drugs”—did not support the maximum sentence. Id.


[26]   Here, unlike Norris, Spicer was not sentenced to the maximum possible number

       of years allowed for his conviction. Nor did Spicer plead guilty to his offense.

       Additionally, Spicer committed this crime when he was on probation for the

       very same crime committed here. Therefore, we decline to reduce Spicer’s

       sentence based on the nature of his offense.



       Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2205 | January 30, 2017   Page 14 of 17
[27]   Turning to Spicer’s character, we note that Spicer has a criminal history, which

       most notably includes a conviction for conspiracy to commit dealing in

       methamphetamine as a Class B felony. He also has four unrelated

       misdemeanor convictions.11 Furthermore, Spicer was on probation for his prior

       methamphetamine conviction at the time he committed the Class A felony

       offense being appealed. Additionally, Spicer had already violated that

       probation in 2008, and the trial court had ordered him to serve ninety days and

       then continued him on probation. Despite this additional opportunity at

       probation given to Spicer by the trial court, Spicer went out and got involved in

       methamphetamine-related activities again. As the trial court noted, Spicer “was

       given a relatively lenient sentence for this prior [methamphetamine] offense and

       failed to take advantage of that opportunity.” (Tr. 326). We find that his prior

       criminal history, especially his prior conviction involving methamphetamine,

       and violation of probation reflect poorly on his character and reveal his

       unwillingness to follow the law.


[28]   We acknowledge Spicer’s assertion that he “suffers from significant health

       issues.” (Spicer’s Br. 16). However, the trial court recognized his health as a

       mitigating circumstance and determined that it was not significant given his

       continued involvement with illegal drugs. Indeed, the trial court stated that

       Spicer “was given an opportunity to change after his last involvement with




       11
         These misdemeanor convictions include resisting law enforcement (1994), visiting a common nuisance
       (1995), reckless driving (2004), and operating a vehicle while intoxicated (2009).

       Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2205 | January 30, 2017    Page 15 of 17
       illegal drugs for the sake of his health” but that his decision to “continu[e] this

       activity while on probation for dealing show[ed] his lack of concern for his

       health and his family.” (Tr. 327). Spicer has not shown that his sentence was

       inappropriate given his character.


[29]   We also reject Spicer’s argument that his sentence is inappropriate when

       compared to the sentences imposed on Ellis and Newton. Ellis pled guilty to an

       amended count of Class B felony conspiracy to commit dealing in

       methamphetamine and was sentenced to twenty years, with ten years executed

       and ten years suspended to probation. Newton pled guilty to Class A felony

       conspiracy to commit dealing in methamphetamine in exchange for the State’s

       recommendation for a thirty-year sentence, with fifteen years executed and

       fifteen years suspended to probation. However, unlike Ellis and Newton,

       Spicer did not plead guilty and decided to proceed to trial where a jury found

       him guilty of the Class A felony offense.12 Furthermore, Ellis was sentenced for

       a Class B felony, not a Class A felony.


[30]   Moreover, we have explained that when analyzing inappropriate sentencing

       claims, we should “concentrate less on comparing the facts of [the case at issue]

       to others, whether real or hypothetical, and more on focusing on the nature,

       extent, and depravity of the offense for which the defendant is being sentenced,




       12
          Spicer did not receive a lengthier sentence because he exercised his Constitutional right to a jury trial. The
       difference is that his co-defendants accepted the State’s offer of a shorter sentence as an inducement to get
       them to plead guilty. Spicer chose to accept the risk that the trial court, upon his conviction, might impose a
       sentence within the full range allowed, 20 to 50 years.

       Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2205 | January 30, 2017            Page 16 of 17
       and what it reveals about the defendant’s character.” Guzman v. State, 985

       N.E.2d 1125, 1134 (Ind. Ct. App. 2013) (internal quotation marks and citations

       omitted). Here, Spicer was a willing participant in a methamphetamine

       manufacturing operation, which was made more egregious by the fact that he

       was on probation for a prior methamphetamine-related conviction at the time

       he committed the offense.


[31]   Spicer has not persuaded us that his forty-year sentence for his Class A felony

       conspiracy to commit dealing in methamphetamine conviction is inappropriate.

       Therefore, we affirm the trial court’s sentence.


[32]   Affirmed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2205 | January 30, 2017   Page 17 of 17
