MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any
                                                                        Jul 29 2020, 11:06 am
court except for the purpose of establishing
the defense of res judicata, collateral                                      CLERK
                                                                         Indiana Supreme Court
estoppel, or the law of the case.                                           Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                     Curtis T. Hill, Jr.
Brooklyn, Indiana                                         Attorney General
                                                          Benjamin J. Shoptaw
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Frank E. Sholar, Jr.,                                     July 29, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A-CR-336
        v.                                                Appeal from the
                                                          Vigo Superior Court
State of Indiana,                                         The Honorable
Appellee-Plaintiff                                        John T. Roach, Judge
                                                          Trial Court Cause Nos.
                                                          84D01-1908-F6-2982,
                                                          84D01-1608-F4-2070



Vaidik, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-336 | July 29, 2020                     Page 1 of 6
                                           Case Summary
[1]   Frank E. Sholar, Jr., appeals his two-year suspended sentence for Level 6 felony

      residential entry and Level 6 felony possession of methamphetamine, arguing

      that it is inappropriate. We affirm.



                            Facts and Procedural History
[2]   In August 2016, the State charged Sholar with Level 5 felony dealing in

      methamphetamine, Level 5 felony dealing in a look-alike substance, Level 6

      felony possession of methamphetamine, Level 6 felony maintaining a common

      nuisance, Level 4 felony dealing in methamphetamine, and with being a

      habitual offender. See 84D01-1608-F4-2070 (“F4-2070”). In March 2017, Sholar

      pled guilty to one count of Level 4 felony dealing in methamphetamine. The

      court sentenced Sholar to nine years, with five years to serve in the Department

      of Correction and four years suspended to probation. The court recommended

      Sholar for Purposeful Incarceration and indicated that it would consider a

      sentence modification if Sholar successfully completed the program. Sholar

      completed Purposeful Incarceration, and in July 2018 his sentence was

      modified so that he would be released to probation with approximately five-

      and-a-half years of suspended time left to serve.


[3]   In August 2019, the State filed the charges in this case—Level 6 felony

      residential entry and Level 6 felony possession of methamphetamine—after

      Sholar was found in a vacant house near a bag containing methamphetamine.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-336 | July 29, 2020   Page 2 of 6
      In addition to the new criminal charges, the State filed a notice of probation

      violation in F4-2070. Sholar was placed in Vigo County’s Work Release

      Program for pre-trial placement. However, in December 2019, Sholar tested

      positive for methamphetamine and was sent to the Vigo County Jail.


[4]   In January of this year, Sholar pled guilty to the new charges and admitted to

      violating his probation in F4-2070. In sentencing Sholar, the trial court found

      three aggravators: Sholar has a long history of criminal and delinquent

      behavior; Sholar violated the terms of his probation; and Sholar violated the

      terms of his pre-trial placement. Sholar had ten felony convictions before this

      case, including eight that were drug-related. In addition to the dealing

      conviction in F4-2070, Sholar has felony convictions from 1999 (dealing

      cocaine or narcotic drug), 2004 (dealing cocaine or narcotic drug), 2008

      (criminal confinement), 2008 (possession of cocaine or narcotic drug), 2008

      (possession of methamphetamine), 2008 (drug possession), 2008 (dealing in

      cocaine or a narcotic drug), 2014 (battery), and 2017 (possession of

      methamphetamine). The court found two mitigators: Sholar’s acceptance of

      responsibility and his history of mental illness (he was diagnosed with

      Schizophrenia, Major Depressive Disorder, Stimulant Use Disorder, and

      Borderline Personality Disorder). The court sentenced Sholar to two years for

      each of his new convictions, to be served concurrently, fully suspended to

      probation. In F4-2070, the court ordered Sholar to serve all of his suspended

      time, approximately five-and-a-half years, consecutive to the sentence in this

      case.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-336 | July 29, 2020   Page 3 of 6
[5]   Sholar now appeals his two-year suspended sentence.



                                 Discussion and Decision
[6]   Sholar contends that his “7-1/2 year total sentence is inappropriate,”

      Appellant’s Br. p. 9, and asks us to revise it under Indiana Appellate Rule 7(B),

      which provides that an appellate 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.” As an initial matter, the trial court’s probation

      sanction of five-and-a-half years is not subject to review under Rule 7(B). See

      Jones v. State, 885 N.E.2d 1286, 1290 (Ind. 2008). Such sanctions are reviewable

      only for an abuse of discretion, and Sholar does not make an abuse-of-

      discretion argument. Therefore, our 7(B) review is limited to Sholar’s two-year

      suspended sentence for the new convictions.


[7]   “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.” Thompson v. State, 5 N.E.3d

      383, 391 (Ind. Ct. App. 2014) (citing Cardwell v. State, 895 N.E.2d 1219, 1224

      (Ind. 2008)). Because we generally defer to the judgment of trial courts in

      sentencing matters, defendants have the burden of persuading us that their

      sentences are inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind. Ct.

      App. 2016).



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-336 | July 29, 2020   Page 4 of 6
[8]    A person who commits a Level 6 felony shall be imprisoned for a fixed term of

       between six months and two-and-a-half years, with the advisory sentence being

       one year. Ind. Code § 35-50-2-7(b). As such, the trial court could have

       sentenced Sholar to as much as five years for his two convictions. Instead, the

       court sentenced Sholar to two years for each Level 6 felony, to be served

       concurrently and suspended to probation.


[9]    Regarding the nature of the offenses, Sholar’s actions were not particularly

       egregious. However, his character alone justifies the trial court’s sentence.

       Sholar has a long history of felony convictions dating back to 1999. Before this

       case, Sholar had ten felony convictions, eight of them drug-related. At the time

       of this offense, Sholar was on probation for a similar crime involving

       methamphetamine. Furthermore, when Sholar was put in a pre-trial work

       release placement while waiting for the resolution of this case, he tested positive

       for methamphetamine.


[10]   To the extent Sholar argues that his sentence for the new convictions is

       inappropriate in light of the fact that he was also ordered to serve five-and-a-half

       years in the probation matter, we simply note that the sentence in this case

       could not have been much more lenient. First, Sholar did not receive the

       maximum sentence of two-and-a-half years for either of his new convictions,

       despite the serious aggravating circumstances. Second, the two-year sentences

       were ordered to be served concurrently, not consecutively. Third, the sentence

       was suspended to probation. And fourth, the trial court was required to order



       Court of Appeals of Indiana | Memorandum Decision 20A-CR-336 | July 29, 2020   Page 5 of 6
       the sentence in this case to run consecutive to the sanction in the probation

       matter pursuant to Indiana Code section 35-50-1-2(e).1


[11]   For all of these reasons, Sholar has not convinced us that his sentence is

       inappropriate.


[12]   Affirmed.


       May, J., and Robb, J., concur.




       1
         “If, after being arrested for one crime, a person commits another crime . . . before the date the person is
       discharged from probation imposed for the first crime, . . . the terms of imprisonment for the crimes shall be
       served consecutively.” Ind. Code § 35-50-1-2(e); Mata v. State, 866 N.E.2d 346, 350 (Ind. Ct. App. 2007).

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-336 | July 29, 2020                        Page 6 of 6
