MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             Aug 31 2015, 9:49 am
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
Matthew J. McGovern                                      Gregory F. Zoeller
Anderson, Indiana                                        Attorney General of Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Steven A. Curry, Jr.,                                    August 31, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         22A01-1503-CR-87
        v.                                               Appeal from the Floyd Superior
                                                         Court
State of Indiana,                                        The Honorable Maria D. Granger,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         22D03-1302-FA-328



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 22A01-1503-CR-87 | August 31, 2015     Page 1 of 11
                                             Statement of the Case
[1]   Steven A. Curry, Jr. (“Curry”) appeals his sentence imposed following his

      guilty plea to Class B felony dealing in a narcotic drug 1 and to being an habitual

      substance offender.2 The trial court sentenced Curry to the advisory term of ten

      years for his Class B felony conviction, with six years executed and four years

      suspended to probation, and it imposed a separate four-year sentence for his

      habitual substance offender determination to be served consecutively. Curry

      now appeals his sentence, alleging that his aggregate ten-year executed sentence

      is inappropriate. Concluding that Curry has failed to show that his sentence is

      inappropriate, we affirm his sentence. However, because the record before us

      reveals that the trial court entered a separate sentence on Curry’s habitual

      substance offender determination instead of enhancing his sentence from his

      dealing conviction and also made some other scrivener’s errors, we remand to

      the trial court with instructions to correct these irregularities.


[2]   We affirm and remand.


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




      1
       IND. CODE § 35-48-4-1(a)(1)(C). We note that, effective July 1, 2014, a new version of the dealing in a
      narcotic drug statute was enacted and that this Class B felony offense is now a Level 5 felony. Because Curry
      committed this crime in 2012, we will refer to the statute in effect at that time.
      2
          I.C. § 35-50-2-10. This statute was repealed effective July 1, 2014.


      Court of Appeals of Indiana | Memorandum Decision 22A01-1503-CR-87 | August 31, 2015             Page 2 of 11
                                                         Facts
[3]   On December 7, 2012, Curry, who lived in Kentucky, crossed the state line into

      Indiana with his friend, Tony Marcum (“Marcum”), to do some “electric

      work.” (Tr. 21). They went to a store in New Albany and, before going into

      the store, Marcum asked Curry “to do something [and] to put some money in

      [his] pocket[.]” (Tr. 23). Specifically, Marcum gave Curry some heroin.

      Curry, who knew he had the narcotic drug, then walked into the store and

      delivered the drug to an undercover Alcohol Tobacco and Firearm (“ATF”)

      special agent.


[4]   The State initially charged Curry with Class A felony dealing in a narcotic drug.

      On December 1, 2014, the State amended the charge to a Class B felony and

      filed an allegation that Curry was an habitual substance offender, which alleged

      that he had nine prior substance offense convictions. That same day, Curry,

      without a written plea agreement, pled guilty to the Class B felony charge and

      the habitual substance offender allegation.3


[5]   When sentencing Curry, the trial court found that Curry’s guilty plea was a

      mitigating circumstance. In its written sentencing order, the trial court found




      3 We note that Indiana Code § 35-35-3-3(a) requires that a plea agreement on a felony charge be made “in
      writing” and “before the defendant enters a plea of guilty.” We have explained that “‘[t]he purpose behind
      [INDIANA CODE § 35-35-3-3] is to insure that a defendant does not base his guilty plea upon certain promises
      made by the prosecutor where the judge has in fact not accepted the [S]tate’s recommendation.’” Gil v. State,
      988 N.E.2d 1231, 1234 n.2 (Ind. Ct. App. 2013) (quoting Davis v. State, 418 N.E.2d 256, 260 (Ind. Ct. App.
      1981)). However, we have also explained that “failure to reduce an agreement to writing need not itself be
      deemed a sufficient ground for rejection” of a defendant’s guilty plea. Id. (quoting Centers v. State, 501 N.E.2d
      415, 417–18 (Ind. 1986)).

      Court of Appeals of Indiana | Memorandum Decision 22A01-1503-CR-87 | August 31, 2015                Page 3 of 11
that a “significant” aggravating circumstance was Curry’s “character[,]” which

was “reflected by his accumulation of numerous arrests for drug-related and

other crimes that involved repeated intervention by law enforcement, courts

and probation” and his lack of deterrence “by his frequent contacts with justice

professionals and opportunities to rehabilitate[.]” (App. 127). The trial court

found that an additional aggravating circumstance was Curry’s “criminal

record[,] which include[d] felony and misdemeanor convictions including a

history of probation violations.” (App. 127).4 The trial court imposed an

advisory sentence of ten (10) years, with six (6) years executed and four (4)

years suspended to probation, for Curry’s Class B felony conviction. For

Curry’s habitual substance offender determination, the trial court imposed a

four (4) year sentence and ordered it to be served consecutively to his Class B

felony sentence.5 Thus, the trial court imposed an aggregate ten (10) year




4
 During the sentencing hearing, the trial court stated that Curry’s history of substance abuse was an
aggravating factor, but it did not include that factor in its written sentencing statement.
5
  As noted by Curry, the trial court’s written sentencing order contains a scrivener’s error. Specifically, the
order provides that the trial court found that the “advisory sentence for the offense of Dealing in a Narcotic
Drug, a class A felony is appropriate.” (App. 127) (emphasis added). It is clear, however, that Curry’s
conviction and sentence were for Class B felony dealing a narcotic drug. We will, however, remand this case
to the trial court to correct its written sentencing order as there are other irregularities contained therein.
First, the trial court’s written sentencing order reveals that it imposed a separate four (4) year sentence for
Curry’s habitual substance offender determination and ordered that it be served consecutively to his dealing
conviction. While the record reveals that the trial court, at times, referred to the habitual substance offender
as an enhancement, the trial court did not enhance Curry’s Class B felony conviction by this habitual
substance offender determination. It is well settled that an “habitual offender finding does not constitute a
separate crime nor does it result in a separate sentence, rather it results in a sentence enhancement imposed
upon the conviction of a subsequent felony.” Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind. 2001) (citing Greer
v. State, 680 N.E.2d 526, 527 (Ind. 1997); Pinkston v. State, 436 N.E.2d 306, 307-08 (Ind. 1982)). Because the
trial court entered a separate sentence on Curry’s habitual substance offender determination, we remand to
the trial court with instructions to correct the sentencing order, abstract of judgment, and chronological case

Court of Appeals of Indiana | Memorandum Decision 22A01-1503-CR-87 | August 31, 2015               Page 4 of 11
      executed sentence in the Department of Correction. The trial court also gave

      Curry six months credit for his completion of his GED while in jail and credit

      for his completion of various “life-enhancement programs” while incarcerated.

      (App. 128). Additionally, the trial court recommended that Curry participate in

      any available substance abuse programs in the Department of Correction, and it

      informed him that it would “consider a modification of the sentence and/or

      participation in Community Transition upon the completion of 75% of the

      sentence, and so long as [he] ha[d] good conduct without discipline or conduct

      violation while at the Indiana Department of Corrections.” (App. 128). Curry

      now appeals.


                                                      Decision
[6]   Curry contends that his aggregate ten-year executed sentence for his Class B

      felony conviction and his habitual offender determination is inappropriate. He

      requests this Court to reduce his sentence for his dealing conviction and to

      reduce his habitual substance offender enhancement from four years to three

      years, which is the minimum allowed under the habitual substance offender

      statute at the time of his offense.




      summary to reflect that the four (4) year habitual substance offender enhancement serves as an enhancement
      of Curry’s Class B felony sentence.
      Second, the trial court’s sentencing order provides that it was giving Curry “Sixty (30) days credit off his
      sentence” for his completion of various programs while incarcerated. (App. 128) (emphasis added). The
      abstract of judgment and the sentencing transcript indicate that the trial court gave Curry thirty (30) days
      credit. Therefore, we direct the trial court to correct this scrivener’s error on remand.

      Court of Appeals of Indiana | Memorandum Decision 22A01-1503-CR-87 | August 31, 2015                Page 5 of 11
[7]   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).


[8]   Whether a sentence is inappropriate ultimately turns on “the culpability of the

      defendant, the severity of the crime, the damage done to others, and a myriad

      of other factors that come to light in a given case.” Id. at 1224. Additionally,

      “[u]nder Indiana law, several tools are available to the trial court to use in

      fashioning an appropriate sentence for a convicted offender.” Sharp v. State, 970

      N.E.2d 647, 650 (Ind. 2012). These “penal tools”—which include suspension

      of all or a portion of the sentence, probation, executed time in a Department of

      Correction facility, and placement in a community corrections program—“form

      an integral part of the actual aggregate penalty faced by a defendant and are

      thus properly considered as part of the sentence subject to appellate review and

      revision.” Id. (citing Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010)).


[9]   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, Curry pled guilty as charged to Class B felony dealing in a narcotic drug

      Court of Appeals of Indiana | Memorandum Decision 22A01-1503-CR-87 | August 31, 2015   Page 6 of 11
       and to being an habitual substance offender. At the time of Curry’s offense, a

       Class B felony conviction carried an advisory sentence of ten years, with a

       range of six to twenty years. I.C. § 35-50-2-5(a). In addition, the habitual

       substance offender statute provided that “[t]he court shall sentence a person

       found to be a habitual substance offender to an additional fixed term of at least

       three (3) years but not more than eight (8) years imprisonment.” I.C. § 35-50-2-

       10(f) (2013). The trial court imposed the advisory term of ten years, with six

       years executed and four years suspended to probation, for his Class B felony

       conviction and four years for his habitual offender enhancement. The trial

       court also recommended that Curry receive substance abuse treatment while in

       the Department of Correction, gave him credit for the completion of courses

       while incarcerated, and advised him that it would later consider a modification

       of his sentence or placement in a community transition program.


[10]   The nature of Curry’s offense involved crossing the state line into Indiana and

       selling heroin. This offense is exacerbated by the fact that, at the time he

       committed it, he had prior convictions in Kentucky relating to trafficking and

       possessing drugs. Curry asserts that the “nature of his offense was not

       aggravating and d[id] not justify the sentence imposed.” (Curry’s Br. 10). He

       contends that he “committed this offense [of dealing heroin] on the spur of the

       moment at the request of a supposed friend” and that there was “no evidence”

       to show that he “regularly deals or has ever dealt in heroin.” (Curry’s Br. 10).


[11]   First, we note that, as this was a guilty plea, there is no requirement for the

       State to present evidence. Nor does his charge of dealing a narcotic drug

       Court of Appeals of Indiana | Memorandum Decision 22A01-1503-CR-87 | August 31, 2015   Page 7 of 11
       contain an element of showing that he regularly dealt or had previously dealt

       the drug. Furthermore, his criminal history does include convictions for

       trafficking other drugs. Additionally, his minimizing of the nature of the

       offense and his rationalization for the reason he committed it merely reflects on

       his character and unwillingness to accept responsibility.


[12]   Turning to Curry’s character, we—as did the trial court—acknowledge that

       Curry pled guilty. However, Curry also has a history of substance abuse and a

       criminal history out of Kentucky that included the following nine convictions:

       (1) a 2004 conviction for possession of marijuana; (2) a 2005 conviction for

       possession of a controlled substance; (3) an April 2007 conviction for possession

       of marijuana; (4) a July 2007 conviction for possession of marijuana; (5-7)

       September 2007 convictions for possession of methamphetamine, trafficking in

       marijuana, and possession of a controlled substance for which he was put on

       probation and then had his probation revoked; and (8-9) 2008 convictions for

       trafficking in a controlled substance and possession of a controlled substance for

       which he was put on probation and then had his probation revoked. He also

       had multiple arrests and charges relating to drug offenses that were later

       dismissed.


[13]   Curry contends that his criminal history should be somehow excused or put “in

       perspective” because most of his crimes relate to his history of substance abuse.

       (Curry’s Br. 9). We disagree with such a contention. See Hape v. State, 903

       N.E.2d 977, 1002 (Ind. Ct. App. 2009) (trial court did not err in failing to

       consider defendant's substance abuse as a mitigating factor especially where the

       Court of Appeals of Indiana | Memorandum Decision 22A01-1503-CR-87 | August 31, 2015   Page 8 of 11
       defendant is aware of the problem and has not taken appropriate steps to treat

       it), trans. denied; Bryant v. State, 802 N.E.2d 486, 501 (Ind. Ct. App. 2004)

       (holding that the trial court did not err in determining that the defendant's

       substance abuse was an aggravating factor because the defendant was aware of

       his drug and alcohol problem and had not taken any positive steps to treat his

       addiction), trans. denied; Bennett v. State, 787 N.E.2d 938, 948 (Ind. Ct. App.

       2003) (holding that the defendant's alcoholism could properly have been

       considered an aggravating circumstance), trans. denied; Iddings v. State, 772

       N.E.2d 1006, 1018 (Ind. Ct. App. 2002) (explaining that “a history of substance

       abuse is sometimes found by trial courts to be an aggravator, not a mitigator”),

       trans. denied.


[14]   Curry further contends that his character should be reviewed favorably because

       he completed his GED and other courses while in jail. While that is

       commendable, the trial court took those courses into consideration and gave

       him credit off of his sentence for those courses. Indeed, the trial court, in its

       written sentencing statement, discussed Curry’s character and its reasons for

       imposing its sentence:

               THE COURT FURTHER NOTES that the Individual Risk
               Assessment reflects that the Defendant, a 31 year old male, is at a
               low risk for re-offending based upon information gathered from
               the Defendant’s self-report. The Defendant is without
               employment currently due to incarceration, but he does not
               report in his assessment any history of employment or work-
               related skill or ability. The Defendant also reports for his
               assessment that he has lived with family for the past 3 years and
               has not lived in an independent, stable living environment. The
       Court of Appeals of Indiana | Memorandum Decision 22A01-1503-CR-87 | August 31, 2015   Page 9 of 11
               Defendant also reports that he has three (3) children that all live
               with their mother, but the defendant does not report the manner
               in which he supports himself or his dependents. The Defendant
               also reports in his assessment, “ . . . [h]e has trusted the wrong
               person that put him in a bad situation at the time when he
               needed help the most.” (Pre-sentence Investigation Report, Page
               9, Paragraph E). That statement contradicts his later statement,
               “[A]t the end of the day, that he will not blame anyone but
               himself.” (Pre-sentence Investigation Report, Page 10,
               Paragraph E). The Defendant’s contradictory statements
               indicate to the Court that he is unwilling to fully accept
               responsibility for his actions[,] which is a behavioral attitude that
               must be reformed. Also, the Defendant’s statements in his
               assessment are of a limited nature that indicate to the court that
               his risk score is not a reliable guide for the Court’s consideration
               to impose sentence for this particular defendant. . . . The
               Defendant’s fourteen (14) criminal arrests indicate that to date
               the criminal justice system has been unsuccessful in holding this
               Defendant accountable for his actions. The Court finds that it is
               imperative that the Defendant be held accountable for his
               criminal behavior in an appropriate manner that will urge hi[m]
               to accept full responsibility, so that he may reform and
               rehabilitate successfully. It is for all of these reasons that the
               Court does not find that this Defendant is one who will likely
               respond affirmatively to probation or short term imprisonment as
               he has had previous opportunities at rehabilitation through
               community supervision and probation, then went back out and
               engaged in more criminal activity.


       (App. 126-27).


[15]   Despite Curry’s prior failed attempts at probation in Kentucky, the trial court

       sentenced him to an advisory ten-year sentence with six years executed and four

       years suspended to probation and imposed, what should have been, an


       Court of Appeals of Indiana | Memorandum Decision 22A01-1503-CR-87 | August 31, 2015   Page 10 of 11
       enhancement of four years for his habitual substance offender adjudication.

       Additionally, the trial court gave Curry credit for completing his GED and

       other jail programs, recommended that he receive substance abuse treatment in

       the Department of Correction, and advised him that it would later consider a

       motion to modify his sentence. Thus, the trial court utilized some of the

       available “penal tools” to fashion a sentence for Curry. See Sharp, 970 N.E.2d

       at 650. Curry has not persuaded us that his aggregate ten-year executed

       sentence for his Class B felony dealing in a narcotic drug conviction and

       habitual substance offender adjudication is inappropriate. Therefore, we affirm

       the trial court’s sentence.


[16]   Affirmed and remanded.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 22A01-1503-CR-87 | August 31, 2015   Page 11 of 11
