      MEMORANDUM DECISION                                                 FILED
                                                                     May 09 2016, 8:44 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as                        CLERK
                                                                      Indiana Supreme Court
      precedent or cited before any court except for the                 Court of Appeals
                                                                           and Tax Court
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Cara S. Wieneke                                          Gregory F. Zoeller
      Wieneke Law Office LLC                                   Attorney General of Indiana
      Brooklyn, Indiana
                                                               Richard C. Webster
                                                               Deputy Attorney General of Indiana
                                                               Indianapolis, Indiana


                                                   IN THE
             COURT OF APPEALS OF INDIANA

      Milton R. Robinson,                                      May 9, 2016

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               33A01-1511-CR-1850
                 v.                                            Appeal from the Henry Circuit
                                                               Court.
                                                               The Honorable Kit C. Dean Crane,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Cause No. 33C02-1310-FB-91




      Friedlander, Senior Judge

[1]   Following a jury trial, Milton R. Robinson appeals the sentence the court
                                                                                   1
      imposed upon his convictions of dealing in a schedule IV controlled substance,




      1
          Ind. Code § 35-48-2-10 (West, Westlaw 2008).


      Court of Appeals of Indiana | Memorandum Decision 33A01-1511-CR-1850 | May 9, 2016      Page 1 of 7
                               2                                                                        3
      a class B felony, and maintaining a common nuisance, a class D felony.
                                                                                          4
      Robinson was sentenced to an aggregate term of twenty years. The sole issue

      Robinson raises for our review is whether his twenty-year sentence for dealing
                                                                                     5
      in a schedule IV controlled substance is inappropriate. We affirm.


[2]   A confidential informant (CI) contacted Robinson and asked “if he had [any

      drugs] to sell.” Tr. p. 114. Robinson responded he had “some [Clonazepam]

      and they were [$3.00] a piece.” Id. The CI agreed to buy five pills. The CI

      then contacted the New Castle Police Department drug task force to report the

      arranged transaction. The task force scheduled a controlled buy to take place

      on December 19, 2012, between the CI and Robinson.


[3]   The CI agreed to meet Robinson at a gas station. The gas station was located

      within 1,000 feet of a family housing complex. Prior to the meeting, an

      investigator with the New Castle Police Department handed the CI $15.00 in

      buy money.


[4]   When the CI reached the gas station, she parked and exited her vehicle, and

      eventually entered Robinson’s vehicle. Robinson gave the CI four Clonazepam

      pills and she gave him the $15.00 in buy money. Robinson told her he would



      2
          Ind. Code §§ 35-48-4-3(a)(1)(C) and (b)(2)(B)(iii) (West, Westlaw 2001).
      3
          Ind. Code § 35-48-4-13(b)(2)(D) (West, Westlaw 2001).
      4
        Robinson was sentenced to twenty years for dealing in a schedule IV controlled substance and three years
      for maintaining a common nuisance, with the sentences to be served concurrently.
      5
          Robinson does not challenge his sentence for maintaining a common nuisance.


      Court of Appeals of Indiana | Memorandum Decision 33A01-1511-CR-1850 | May 9, 2016               Page 2 of 7
      give her the fifth pill later. After the controlled buy was completed, the CI gave

      the pills to the investigator.


[5]   On October 11, 2013, Robinson was charged with dealing in a schedule IV

      controlled substance, as a class B felony, and maintaining a common nuisance,

      as a class D felony. Following a jury trial, Robinson was found guilty as

      charged.


[6]   On October 15, 2015, Robinson was sentenced to twenty years for the dealing

      count and three years for maintaining a common nuisance, with the sentences

      to be served concurrently. At sentencing, the trial court stated:

              I want to address the mitigators, . . . that you allege here. If I’ve
              got them in the right order, you assert that there was no victim in
              this case. I don’t find under Indiana Law that to be a mitigating
              circumstance so the Court rejects that. The Court also rejects the
              assertion that the victim facilitated this offense. My
              understanding of that mitigating circumstance, under Indiana
              Law, has no applicable [sic] of the facts and circumstances in this
              case. The Court rejects that incarceration of Mr. Robinson
              would be an undue hardship to his dependants [sic]. If that was
              the case, many people faced with incarceration would, that
              would result in undue hardship to their dependants [sic]. I don’t
              find that to be a mitigating circumstance here. We talk about
              circumstances unlikely to recur. Mr. Robinson, if I’ve calculated
              everything correctly, you have ten prior – I’m sorry, ten total
              felony convictions over a twenty-three year period, so Courts
              have to look at past behavior as a gauge towards future behavior,
              so I reject the unlikely to recur argument as a mitigating
              circumstance. In the past, there have been efforts of
              rehabilitation. There’s been, as I look through the Pre-Sentence
              Report, there were times when prosecution withheld was offered.
              There were different dispositions with regard to suspended
      Court of Appeals of Indiana | Memorandum Decision 33A01-1511-CR-1850 | May 9, 2016   Page 3 of 7
              sentences, several efforts at probation that appear to all have been
              unsuccessful, so I would reject the assertion that Mr. Robinson
              would respond affirmatively to probation. As I indicated, there
              are ten felony convictions over a twenty-three year period, so the
              Court does find as an aggravating circumstance Mr. Robinson’s
              history of criminal and delinquent activity. As I indicated earlier,
              I also find as an aggravating circumstance that Mr. Robinson, in
              the past, has not only violated terms of probation, but has done
              so repeatedly. Based upon all of those things and the jury’s
              verdict in this matter, on Count 1, Mr. Robinson would be
              suspended to the – I’m sorry – would be sentenced to the Indiana
              Department of Corrections [sic] for a period of twenty (20) years.
              On Count 2, Maintaining a Common Nuisance, a Class D
              felony, Mr. Robinson would be sentenced to the Indiana
              Department of Corrections [sic] for a period of three (3) years. I
              would Order [sic] Count 2 to be served concurrently with Count
              1.


      Tr. pp. 224-25.


[7]   Robinson’s sole contention on appeal is that his twenty-year sentence for

      dealing in a schedule IV controlled substance is inappropriate in light of the

      nature of his offense and his character. This Court “may revise a sentence

      authorized by statute if, after due consideration of the trial court’s decision, [we

      find] the sentence is inappropriate in light of the nature of the offense and the

      character of the offender.” Ind. Appellate Rule 7(B). “We must and should

      exercise deference to a trial court’s sentencing decision, both because Rule 7(B)

      requires us to give ‘due consideration’ to that decision and because we

      understand and recognize the unique perspective a trial court brings to its

      sentencing decisions.” Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App.


      Court of Appeals of Indiana | Memorandum Decision 33A01-1511-CR-1850 | May 9, 2016   Page 4 of 7
       2007). A defendant bears the burden of persuading the appellate court that his

       sentence has met the inappropriateness standard of review. Anglemyer v. State,

       868 N.E.2d 482 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007).


[8]    According to Robinson, his sentence is inappropriate in light of the nature of

       the offense because “[he] sold only 4 [C]lonazepam pills to a [CI] for just

       [$15.00].” Appellant’s Br. p. 6. As for his character, Robinson acknowledges

       his criminal history is lengthy, but maintains that most of the convictions “are

       minor offenses and/or property-related.” Id. at 8.


[9]    Looking at the nature of Robinson’s offense, Robinson sold Clonazepam, a

       schedule IV controlled substance, at a gas station located within 1,000 feet of a

       family housing complex. Our legislature assessed higher penalties for dealing in

       drugs near family-oriented areas. See Ind. Code § 35-48-4-3 (West, Westlaw

       2001).


[10]   As to Robinson’s character, we note he has a lengthy criminal history,

       including: three juvenile adjudications (1982, 1983, 1987); class D felony theft

       (1988); misdemeanor resisting law enforcement (1990); misdemeanor public

       intoxication (1990); misdemeanor illegal possession of an alcoholic beverage by

       a minor (1990); misdemeanor resisting law enforcement (1990); class D felony

       receiving stolen property (1991); class B felony burglary (1991); misdemeanor

       public intoxication (1995); class D felony sexual battery (1995); class D felony

       theft and resisting law enforcement (1996); class C felony burglary (1996); class

       B felony burglary (1996); misdemeanor possession of marijuana (2005); class D


       Court of Appeals of Indiana | Memorandum Decision 33A01-1511-CR-1850 | May 9, 2016   Page 5 of 7
       felony theft (2007); and misdemeanor battery resulting in bodily injury (2012).

       At sentencing, the trial court discussed prior attempts to rehabilitate Robinson,

       including withholding prosecution and suspending his sentences, and also

       discussed Robinson’s repeated probation violations. Robinson’s probation was

       revoked three times.


[11]   In support of his argument that his sentence should be reduced, Robinson

       attempts to liken his case to Norris v. State, 27 N.E.3d 333 (Ind. Ct. App. 2015).

       Norris pleaded guilty to class B felony dealing in a controlled substance after he

       sold ten hydrocodone pills in exchange for $60.00. Id. Norris was sentenced to

       twenty years. Id. On appeal, this Court reduced Norris’ sentence under

       Appellate Rule 7(B), noting that even though Norris had four prior convictions

       for possession of marijuana, his sentence was inappropriate because (among

       other things) “he [had] not spent a lot of time in the [Department of

       Correction];” “[h]e [had] successfully completed probation in some cases;” and

       the nature of his offense was “relatively innocuous.” Id. at 336. We remanded

       the case to the trial court with instructions to impose a twelve-year sentence

       (recommended by the probation department), with eight years executed and

       four years suspended to probation. Id.


[12]   Like Norris, Robinson was convicted for selling a small amount of drugs for not

       very much money, and he received the maximum sentence. But the similarities

       between Robinson’s case and that of Norris end there. Robinson’s criminal

       history began as a juvenile and continues into adulthood. Robinson has spent

       his entire adult life in and out of jail. At the time of sentencing, the pre-

       Court of Appeals of Indiana | Memorandum Decision 33A01-1511-CR-1850 | May 9, 2016   Page 6 of 7
       sentence investigation report showed Robinson had nine prior felony

       convictions and seven prior misdemeanor convictions. Robinson was ordered

       to serve executed sentences for at least eight of his convictions and was

       sentenced to fourteen years for his 1996 conviction of class B felony burglary.

       The trial court found as aggravating factors Robinson’s extensive criminal

       history and his repeated probation violations. The probation department did

       not provide a recommended sentence for Robinson’s instant offenses.


[13]   The advisory sentence for a class B felony at the time Robinson committed the

       instant offenses was ten years, with six years being the minimum sentence and

       twenty years being the maximum sentence. See Ind. Code § 35-50-2-5 (West,

       Westlaw 2005). The trial court determined Robinson should receive the

       maximum sentence. In light of the nature of the offense and Robinson’s

       character, we cannot conclude Robinson’s twenty-year sentence for class B

       felony dealing in a schedule IV controlled substance is inappropriate.


[14]   Judgment affirmed.


       Mathias, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A01-1511-CR-1850 | May 9, 2016   Page 7 of 7
