MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                Dec 07 2015, 9:02 am
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
Leanna Weissmann                                        Gregory F. Zoeller
Lawrenceburg, Indiana                                   Attorney General of Indiana
                                                        Chandra K. Hein
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James E. Pugh,                                          December 7, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        15A04-1503-CR-131
        v.                                              Appeal from the Dearborn
                                                        Superior Court
State of Indiana,                                       The Honorable Jonathan N.
Appellee-Plaintiff                                      Cleary, Judge
                                                        Trial Court Cause No.
                                                        15D01-1409-FA-52



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A04-1503-CR-131 | December 7, 2015       Page 1 of 6
[1]   James Pugh appeals the sentence he received for Class A Felony Dealing in a

      Controlled Substance.1 He asks us to revise his sentence. Finding his sentence

      not inappropriate, we affirm.


                                                      Facts
[2]   In May 2014, an undercover police officer heard from a confidential informant

      that Pugh was dealing drugs. The officer found the accusations particularly

      serious because Pugh was operating out of a family housing complex. Even

      more troubling, the informant alleged that Pugh was trading drugs for sex with

      teenage girls—Pugh has a prior conviction for rape involving an underaged

      victim.


[3]   On May 28, 2014, the officer arranged to purchase Suboxone2 strips from Pugh.

      The officer arrived at the housing complex and Pugh directed him into a

      bedroom. There, the two agreed to exchange five eight-milligram strips for one

      hundred dollars. While Pugh was cutting the strips open, he explained that he

      had to make each cut unique because one time he opened a “sh*t load of them”

      with a single slice, which made his doctor suspicious. Tr. 40. Before the officer

      left, Pugh’s six-year-old daughter entered the room and hugged her father.




      1
          Ind. Code § 35-48-4-2.
      2
       These strips were prescribed to Pugh’s wife and contain buprenorphine, which is an opioid and a controlled
      substance.

      Court of Appeals of Indiana | Memorandum Decision 15A04-1503-CR-131 | December 7, 2015          Page 2 of 6
[4]   On September 11, 2014, the State charged Pugh with two counts: (i) Class D

      felony neglect of a dependent, and (ii) dealing in a schedule III controlled

      substance within 1,000 feet of a family housing complex. The statute in effect

      at the time allowed the State to charge the latter offense as a Class A felony.

      Ind Code § 35-48-4-2(b)(2)(B)(iii) (2011). Effective July 1, 2014, our Legislature

      amended this statute to remove the family-housing-complex enhancement—if

      Pugh had committed his crime a little over a month later than he did, the

      State’s charge would have been a Level 6 felony with a two-and-a-half-year

      maximum sentence. I.C. § 35-48-4-2(a); Ind. Code § 35-50-2-7(b). If the State

      had sought an enhancement for the presence of Pugh’s daughter, Pugh might

      have been charged with a Level 5 felony with a six-year maximum sentence.

      I.C. § 35-50-2-6(b). But since Pugh committed his crime when he did, he faced

      a sentencing range of twenty to fifty years, with an advisory sentence of thirty

      years. I.C. § 35-50-2-4.


[5]   On January 26, 2015, Pugh pleaded guilty to dealing in a controlled substance

      as a Class A felony, and the State agreed to dismiss the neglect charge. Since

      this was an open plea, the trial court retained discretion in its sentencing

      decision. After a sentencing hearing, on February 24, 2015, the trial court

      sentenced Pugh to the advisory sentence of thirty years executed. Pugh now

      appeals.




      Court of Appeals of Indiana | Memorandum Decision 15A04-1503-CR-131 | December 7, 2015   Page 3 of 6
                                          Discussion and Decision
[6]       Pugh has one argument on appeal: that his thirty-year sentence is inappropriate

          and should be reduced. He argues that the legislature, in reducing penalties for

          drug offenses, was following our Constitution’s demand that “[t]he penal code

          shall be founded on the principles of reformation, and not of vindictive justice.”

          Ind. Const. art. I, § 18. Although his argument is not directly constitutional in

          nature, he argues that this constitutional provision should inform our review

          process under Indiana Appellate Rule 7(B).3


[7]       Indiana Appellate Rule 7(B) provides, “The 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.” The principal role of such review is to

          attempt to leaven the outliers, but not to achieve a perceived “correct” sentence.

          Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Sentencing is principally a

          discretionary function in which the trial court’s judgment should receive

          considerable deference. Id. at 1222.




      3
[1]     It has long been held that this constitutional provision applies only to the entire scheme of criminal law and not
      to individual portions within the scheme. In Driskill v. State, our Supreme Court was faced with the question of
      whether the death penalty violated the constitutional mandate to reform. 7 Ind. 338 (1855). The Court
      acknowledged, in something of an understatement, that the penalty of death was an “instance in the law in which
      the purpose of reformation is not prominent,” but found that the mandate, “when properly construed, requires the
      penal laws to be so framed as to protect society, and at the same time, as a system, to inculcate the principle of
      reform.” Id. at 343 (emphasis added).

          Court of Appeals of Indiana | Memorandum Decision 15A04-1503-CR-131 | December 7, 2015              Page 4 of 6
[8]    Pugh acknowledges that the old sentencing scheme applies to his sentence, and

       does not ask to be sentenced under the Level 6 guidelines. Instead, he argues

       that the changes in sentencing length should persuade us to revise his sentence

       to the low end of the Class A felony sentencing spectrum.


[9]    This we cannot do. In Marley v. State, 17 N.E.3d 335 (Ind. Ct. App. 2014), we

       faced a similar argument. After noting that the sentencing scheme explicitly

       makes clear that it does not affect crimes committed before the effective date,

       Ind. Code § 1-1-5.5-21, -22, and that the doctrine of amelioration does not

       apply, id., we held, “It is abundantly clear from these statutes that the General

       Assembly intended the new criminal code to have no effect on criminal

       proceedings committed prior to the enactment of the new code.” Marley, 17

       N.E.3d at 340. This is also “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.” Id.


[10]   Turning to the nature of Pugh’s offense, we find no reason to revise his

       sentence. Pugh was selling illegal substances from his residence in a family

       housing complex. He transacted in these substances in front of his six-year-old

       child. This was not an isolated incident; Pugh’s experience selling these

       substances informed his decision to cut each Suboxone strip in a unique way.


[11]   Turning to Pugh’s character, we again find no reason to revise his sentence. He

       is an experienced drug dealer who allegedly exchanged drugs for sex with

       teenagers. This is particularly troubling given his previous conviction for the


       Court of Appeals of Indiana | Memorandum Decision 15A04-1503-CR-131 | December 7, 2015   Page 5 of 6
       rape of an underage victim. Pugh did not appear particularly forthcoming at his

       sentencing hearing—despite the officer’s testimony that Pugh cut each strip

       individually so that the doctor would not be suspicious, Pugh testified, “This is

       the only time I’ve ever sold drugs.” Tr. 81. Pugh has also committed eleven

       criminal offenses, and at the time of his arrest he had two outstanding warrants

       in Hamilton County.


[12]   Although we can understand the frustration of a defendant who, if he had

       waited to commit his crime, would have received a lower sentence, “[t]he time

       of a crime is selected as an act of free will by the offender.” Gee v. State, 508

       N.E.2d 787, 789 (Ind. 1987). Pugh’s argument amounts to an attempt to use

       Rule 7(B) to bypass the savings clause adopted by our legislature in the new

       sentencing scheme. His attempt fails.


[13]   The judgment of the trial court is affirmed.


       Bradford, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A04-1503-CR-131 | December 7, 2015   Page 6 of 6
