MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any                                     Jun 05 2019, 9:59 am
court except for the purpose of establishing
                                                                                  CLERK
the defense of res judicata, collateral                                       Indiana Supreme Court
                                                                                 Court of Appeals
estoppel, or the law of the case.                                                  and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
A. David Hutson                                          Curtis T. Hill, Jr.
HUTSON LEGAL                                             Attorney General of Indiana
Jeffersonville, Indiana
                                                         Josiah J. Swinney
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jerome Smith,                                            June 5, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-205
        v.                                               Appeal from the Clark Circuit
                                                         Court
State of Indiana,                                        The Honorable Bradley B. Jacobs,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         10C02-1701-F3-3



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-205 | June 5, 2019                           Page 1 of 5
                                          Case Summary
[1]   Jerome Smith (“Smith”) pled guilty to Dealing in Methamphetamine, as a

      Level 3 felony.1 He presents a single issue on appeal: whether his seven-year

      sentence, with two years suspended to probation, is inappropriate. We affirm.



                                Facts and Procedural History
[2]   On January 4, 2017, Smith called a Jeffersonville, Indiana undercover police

      officer and agreed to deliver methamphetamine to a local motel. Smith arrived

      at the designated meeting place and, in exchange for $350.00, produced five

      individual packages that contained methamphetamine in the aggregate amount

      of eight grams. Smith was subsequently arrested and charged with dealing in

      methamphetamine and possession of methamphetamine.


[3]   On November 28, 2018, Smith pled guilty to dealing in methamphetamine and

      the possession charge was dismissed. On January 17, 2019, the trial court

      sentenced Smith to seven years imprisonment, with two years suspended to

      probation. Smith now appeals.




      1
          Ind. Code § 35-48-4-1.1.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-205 | June 5, 2019   Page 2 of 5
                                 Discussion and Decision
[4]   Pursuant to Indiana Code Section 35-50-2-5, the sentencing range for a Level 3

      felony is three to sixteen years, with an advisory sentence of nine years. Smith

      received a sentence that is two years less than the advisory, with an additional

      two years suspended to probation. He asks that we revise his sentence to three

      years, entirely suspended to probation, in light of his guilty plea, medical issues,

      and difficult childhood. He focuses primarily upon his diagnoses of congestive

      heart failure and chronic kidney disease, arguing that his sentence is a de facto

      life sentence.


[5]   We “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.” Ind.

      Appellate Rule 7(B). We assess the trial court’s recognition or non-recognition

      of aggravators and mitigators as an initial guide to determining whether the

      sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind.

      Ct. App. 2006). Here, the trial court recognized as aggravators that Smith has a

      significant criminal history and he was charged with crimes under other cause

      numbers in Kentucky and Indiana while on bond for this case. In mitigation,

      the trial court found that Smith pled guilty to the highest charge against him, he

      has poor health, and incarceration would cause him significant hardship. In

      imposing the less-than-advisory sentence, the trial court found that the

      mitigators slightly outweighed the aggravators.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-205 | June 5, 2019   Page 3 of 5
[6]   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, 1224 (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 turns on “our sense of 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.” Id. at 1224. Deference to the trial court “prevail[s] unless

      overcome by compelling evidence portraying in a positive light the nature of the

      offense (such as accompanied by restraint, regard, and lack of brutality) and the

      defendant’s character (such as substantial virtuous traits or persistent examples

      of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[7]   As to the nature of the offense, Smith contacted an undercover police officer to

      arrange a methamphetamine sale at a local motel, and then produced eight

      grams of methamphetamine. Dealing in methamphetamine is a Level 3 offense

      if the amount of methamphetamine involved is more than five grams and less

      than ten grams. I.C. § 35-48-4-1.1(d). Thus, Smith sold three grams more than

      the minimum amount qualifying as a Level 3 felony.


[8]   As to Smith’s character, the decision to plead guilty indicates some acceptance

      of responsibility for his actions. However, he has a significant criminal history,

      consisting of thirteen misdemeanors and two felonies. Some of these

      convictions occurred while Smith was released on bond in this case; that is, he

      was charged with and convicted in Kentucky of fourth degree domestic assault,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-205 | June 5, 2019   Page 4 of 5
       an unlawful taking, and two counts of terroristic threatening. Also while on

       bond, he was convicted in Clark County, Indiana, of theft as a Level 6 felony.

       Finally, he was arrested on August 4, 2017, on Kentucky charges of second

       degree burglary and violating an emergency protective order or a domestic

       violence order.


[9]    Smith does, as the trial court found, suffer from medical conditions that will

       increase the hardship of incarceration. The trial court imposed a lenient

       sentence of two years less than the advisory sentence, and suspended two years

       to probation. The nature of Smith’s offense and his character do not militate

       toward further leniency. To the extent that Smith suggests the costs of

       incarcerating a terminally ill person outweigh any benefit to the public, or that

       his sentence should be reviewable on compassionate release grounds, these

       considerations are more properly directed to other branches of government.



                                               Conclusion
[10]   Smith has not demonstrated that his sentence is inappropriate in light of the

       nature of his offense and his character.


[11]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-205 | June 5, 2019   Page 5 of 5
