      MEMORANDUM DECISION
                                                                                      FILED
      Pursuant to Ind. Appellate Rule 65(D), this
                                                                                 Mar 20 2018, 10:35 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the                              CLERK
                                                                                  Indiana Supreme Court
      purpose of establishing the defense of res judicata,                           Court of Appeals
                                                                                       and Tax Court
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Jane Ann Noblitt                                         Curtis T. Hill, Jr.
      Columbus, Indiana                                        Attorney General of Indiana

                                                               Lee M. Stoy, Jr.
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Joseph L. Leszcynski,                                    March 20, 2018

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               03A01-1710-CR-2350
              v.                                               Appeal from the Bartholomew
                                                               Superior Court.
                                                               The Honorable James D. Worton,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Trial Court Cause No.
                                                               03D01-1703-F5-1848




      Shepard, Senior Judge

[1]   Joseph Leszcynski twice sold heroin to a confidential informant, pleaded guilty

      to dealing in a narcotic drug as a Level 5 felony, and was sentenced to five years

      executed in the Indiana Department of Correction. The trial court




      Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2350 | March 20, 2018               Page 1 of 5
      recommended he be placed in a therapeutic community while serving his

      sentence. He appeals, arguing his sentence is inappropriate. We affirm.



                                Facts and Procedural History
[2]   On May 17 and 19, 2016, a confidential informant (CI) contacted a Columbus

      Police Department detective and informed him that the CI could purchase

      heroin from Leszcynski. Controlled buys were arranged. The CI, accompanied

      by another detective, drove to the buy locations. On each occasion, when they

      arrived, Leszcynski approached the window of the vehicle; the CI gave

      Leszcynski the buy money; and Leszcynski gave the CI less than one gram of

      heroin.

                                                                                                      1
[3]   The State charged two counts of dealing in a narcotic drug as Level 5 felonies.

      Leszcynski pleaded guilty and, as a part of the plea agreement, the State agreed

      to dismiss the second count and not file charges in an unrelated case. The trial

      court accepted the plea agreement and sentenced Leszcynski to five years

      executed with a recommendation that he be placed in a therapeutic community

      while serving the sentence. The court indicated it would consider a sentence

      modification upon Leszcynski’s successful completion of the therapeutic

      community.




      1
          Ind. Code § 35-48-4-1(a)(1) (2014).


      Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2350 | March 20, 2018   Page 2 of 5
                                                    Issue
[4]   The sole issue Leszcynski raises on appeal is whether his sentence is

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



                                Discussion and Decision
[5]   Indiana Appellate Rule 7(B) 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 of persuasion in this

      court. Childress v. State, 848 N.E.2d 1073 (Ind. 2006). Whether we regard a

      sentence as inappropriate turns on 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.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

      “[S]entencing is principally a discretionary function in which the trial court’s

      judgment should receive considerable deference.” Id. at 1222.


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

      the advisory sentence is the starting point the General Assembly has selected as

      an appropriate sentence for the crime committed. Childress, 848 N.E.2d 1073.

      Here, Leszcynski was convicted of a Level 5 felony, for which the sentencing

      range is between one and six years, with an advisory sentence of three

      years. See Ind. Code § 35-50-2-6 (2014). Leszcynski’s sentence is thus above

      the advisory but below the maximum allowed under the statute.


      Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2350 | March 20, 2018   Page 3 of 5
[7]   As to the nature of Leszcynski’s offense, he admitted to selling heroin on two

      separate occasions to a confidential informant. The trial court was justified in

      observing that selling heroin represents a danger to others.


[8]   Regarding character, Leszcynski has a history of delinquency and criminal

      offenses. He has been convicted of six misdemeanors and three felonies; his

      felony convictions are drug-related; and his probation has been “closed

      unsuccessfully” four times and fully or partially revoked four times. Moreover,

      he was on probation at the time he committed the instant offense. Leszcynski

      postulates that he suffers from a drug addiction and has not had the opportunity

      to participate in a comprehensive drug treatment program outside DOC.

      However, on several occasions, he was ordered by the trial court to undergo
                                                                         2
      drug treatment, but failed to complete the programs.


[9]   Leszcynski intersperses his inappropriate sentence argument with assertions

      that reference an abuse of discretion standard, specifically, that the trial court

      should have found as mitigating factors that his offense did not cause harm to

      persons or property, that he suffers from drug addiction, and that, at sentencing,

      he asked the court for help with his drug addiction. However, our Supreme

      Court has made clear that inappropriate sentence and abuse of discretion claims




      2
        We note the trial court was not unsympathetic to Leszcynski’s substance abuse problems as it
      recommended placement in a therapeutic community in the DOC where he would be afforded intensive
      substance abuse treatment. See INDIANA DEPARTMENT OF CORRECTION,
      https://www.in.gov/idoc/2798.htm (last visited March 8, 2018).



      Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2350 | March 20, 2018     Page 4 of 5
       are to be analyzed separately. See Anglemyer v. State, 868 N.E.2d 482 (Ind.

       2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). Leszcynski does not fully

       develop his arguments concerning the trial court’s assessment of mitigating

       factors. As such, any claims of error of this nature are not preserved. See Foutch

       v. State, 53 N.E.3d 577, 580 n.1 (Ind. Ct. App. 2016) (noting that party must

       make cogent argument regarding abuse of discretion in sentencing separate

       from inappropriateness analysis to preserve claim for appellate review).



                                               Conclusion
[10]   Leszcynski’s five-year sentence is not inappropriate in light of his offense and

       his character.


[11]   Affirmed.


       Bailey, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2350 | March 20, 2018   Page 5 of 5
