MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                 Mar 13 2020, 10:38 am

court except for the purpose of establishing                                     CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Suzy St. John                                            Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Samantha M. Sumcad
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Eddie Bluitt,                                            March 13, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1386
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia A. Gooden,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G21-1804-F4-12898



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1386 | March 13, 2020                     Page 1 of 9
[1]   Eddie Bluitt appeals the sentence imposed by the trial court after he was

      convicted of Level 4 felony dealing in a narcotic drug and Level 5 felony

      dealing in a narcotic drug, arguing that (1) the trial court erred by rejecting

      certain proffered mitigators; and (2) his sentence is inappropriate in light of the

      nature of the offenses and his character. Finding no error and the sentence not

      inappropriate, we affirm.


                                                           Facts
[2]   On February 13, 2015, the Madison County Drug Task Force conducted a

      controlled drug buy with Bluitt after receiving pertinent information from a

      confidential informant about Bluitt’s potential involvement in heroin

      trafficking. The undercover agent ended up purchasing approximately 2.95

      grams of heroin and diphenhydramine from Bluitt. The Task Force conducted a

      similar controlled drug buy on June 23, 2015, during which Bluitt sold the

      undercover agent .97 grams of fentanyl.


[3]   On April 20, 2018,1 the State charged Bluitt with one count of Level 4 felony

      dealing in a narcotic drug and one count of Level 5 felony dealing in a narcotic

      drug. Additionally, on February 28, 2019, the State alleged that Bluitt was an

      habitual offender. At the conclusion of Bluitt’s trial on May 1, 2019, the jury




      1
          The record does not indicate why it took the State nearly three years to eventually arrest and charge Bluitt.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1386 | March 13, 2020                         Page 2 of 9
      found Bluitt guilty as charged. However, the jury found that Bluitt was not an

      habitual offender.


[4]   Following Bluitt’s May 16, 2019, sentencing hearing, the trial court sentenced

      him to an aggregate term of eight years for the two counts, with five years to be

      served in the Department of Correction, two years to be served on community

      corrections, and one year suspended to probation. The trial court found Bluitt’s

      substantial criminal history and past violations of probation and community

      corrections to be aggravators. The trial court found no mitigators. Bluitt now

      appeals.


                                   Discussion and Decision
                                              I. Mitigators
[5]   First, Bluitt argues that the trial court erred by rejecting two proffered

      mitigators—namely, the hardship that Bluitt’s incarceration will have on his

      minor children and the fact that the quantity of drugs involved was lower than

      typical drug offenses. As a general matter, sentencing decisions are left to the

      sound discretion of the trial court. Smallwood v. State, 773 N.E.2d 259, 263 (Ind.

      2002). We will reverse a sentencing decision regarding certain mitigators only if

      the decision is clearly against the logic and effect of the facts and circumstances

      before the trial court and all reasonable inferences drawn therefrom. Anglemyer

      v. State, 868 N.E.2d 482, 490, clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).


[6]   Specifically, the trial court is under no obligation to find and/or use mitigators

      in its sentencing analysis. Wingett v. State, 640 N.E.2d 372, 373 (Ind. 1994). In
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1386 | March 13, 2020   Page 3 of 9
      fact, the burden is on the defendant to establish that a proffered mitigator is

      both significant and “clearly supported by the record,” Anglemyer, 868 N.E.2d

      at 493, if he alleges that the trial court failed to identify a mitigating

      circumstance.


[7]   Simply put, Bluitt’s argument is unavailing for two main reasons. First, most of

      Bluitt’s attempts to have us reexamine the proffered mitigators and their import

      amount to nothing more than a request that we reweigh the evidence, which we

      may not do. It is not the job of this Court to dissect every element of Bluitt’s

      case and determine whether he has led a rather modest and crime-free lifestyle

      warranting a sentence reduction. Rather, it is the province of this Court to

      determine whether the trial court, in its sentencing analysis, erroneously

      rejected certain proffered mitigators clearly supported by the record.


[8]   And to that point, Bluitt’s argument is similarly unavailing because the trial

      court already considered and rejected Bluitt’s proffered mitigators without any

      indicia of error. With regards to whether Bluitt’s incarceration would cause a

      hardship on his minor children, the trial court found, in pertinent part, as

      follows:


              The other thing that, you know, and I – I appreciate and
              understand that [Bluitt] has children, grandchildren, family
              members, that he cares about and obviously by virtue of the letters
              that I’ve read and so forth that obviously care about him. I have
              no doubt whatsoever that [Bluitt] has not [sic] played a significant
              role in their lives. And has – has been there for them and has taken
              them to lessons and activities and so forth. Um, I – I don’t dispute
              that. However, these children have – were all alive at the time that
              this offense were [sic] committed. And I dare say that . . . any of

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1386 | March 13, 2020   Page 4 of 9
              his children were aware that the same he might have been taken
              [sic] kids at activities and feeding them dinner and watching them
              or taking care of them or take [sic] them to the park, he was also
              dealing drugs. Um, and – and that is the reason why this court
              could not make a finding that there is a mitigating circumstance of
              undue hardship on a dependent because that’s a credit to [Bluitt]
              that isn’t deserved based on the facts and circumstances that are
              present.


      Tr. Vol. III p. 103. In other words, the trial court conceded that Bluitt cared

      deeply for his minor children, but that the record showcased a very different

      parent/child relationship. The trial court found that while Bluitt was parenting

      his children, he was nevertheless dealing controlled substances in disregard of

      his role as a parent and mentor. It was apparent to the trial court that Bluitt did

      not value his children enough to refrain from committing these criminal

      actions, and therefore, he was not entitled to use the hardship of his

      incarceration as a mitigator during sentencing. In looking at the facts and

      circumstances before the trial court, we find that its decision was not erroneous.


[9]   With regards to the fact that the quantity of drugs involved was lower than in

      typical drug offenses, the trial court found, in pertinent part, as follows:


              Um, and the court recognizes that in terms of what [Bluitt] was
              found guilty of, um, in the context of what this court sees in terms
              of other cases, trials or not, this was a smaller amount of drugs
              that were [sic] involved. However, the evidence that was presented
              was – by the State, was far more convincing than many other cases
              that this court has seen in other trials. Here we had two witnesses
              that testified. We had video and audio evidence. We had a police
              officer testify. We had significant, um, incredible this court finds
              evidence of dealing. And that dealing might be a gram or two but
              it’s dealing all the same. The jury found that there was dealing of
              fentanyl, um, and whether or not [Bluitt] knew that that’s what

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1386 | March 13, 2020   Page 5 of 9
               that was or what fentanyl is to begin with is frankly besides the
               point. And, um, is a small piece of, as [State’s counsel] said, small
               piece of a very, very large horrible puzzle as to why there are
               hundreds of people dying in our community and across our nation
               because they’re not aware of what fentanyl is and how deadly it is.
               So, the fact that [Bluitt] may have been a small fish in a larger sea
               of drug trafficking apparently include – including his son, um,
               does not excuse the behavior.


       Id. at 102-03. Here, the trial court evaluated the totality of the circumstances

       and saw nothing in the record clearly supporting the notion that the smaller

       quantity of drugs in Bluitt’s case would be a potential mitigator. The State was,

       in fact, required to prove beyond a reasonable doubt that Bluitt possessed the

       quantity of drugs required for conviction under the Level 4 and Level 5 felony

       statutes. So, as the trial court points out, the fact that Bluitt possessed only a

       certain amount of narcotics does not take away from the severity of his crimes

       or the concrete proof of both offenses.


[10]   In sum, the trial court did not err by rejecting Bluitt’s proffered mitigators.


                                         II. Appropriateness
[11]   Next, Bluitt argues that the sentence imposed by the trial court is inappropriate

       in light of the nature of the offenses and his character.


[12]   Indiana Appellate Rule 7(B) states that a “Court may revise a sentence . . . 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.” The question is not whether another sentence is more

       appropriate, but whether the defendant’s specific sentence is inappropriate.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1386 | March 13, 2020   Page 6 of 9
       Steinberg v. State, 941 N.E.2d 515, 535 (Ind. Ct. App. 2011). In determining

       whether the sentence is inappropriate, we will consider numerous factors such

       as 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.”

       Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The defendant bears the

       burden of persuading us that his sentence is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).


[13]   For a Level 4 felony offense, the maximum sentence is twelve years, and the

       minimum sentence is two years. Ind. Code § 35-50-2-5.5. The advisory sentence

       is six years. Id. For a Level 5 felony offense, the maximum sentence is six years,

       and the minimum sentence is one year. I.C. § 35-50-2-6(b). The advisory

       sentence is three years. Id. Here, the trial court sentenced Bluitt to an aggregate

       term of eight years for the two counts, with five years to be served in the

       Department of Correction, two years to be served on community corrections,

       and one year suspended to probation.


[14]   First, as to the nature of the offenses, Bluitt has committed serious drug crimes.

       Despite Bluitt’s attempts to downplay the severity of his actions, controlled

       substance transactions and abuse have deleterious effects on a surrounding

       community. The Madison County Drug Task Force deliberately set up two

       separate controlled drug buys to see if Bluitt would sell drugs in willful defiance

       of the law, and he did it both times. Though not the most harmful or grotesque

       of criminal actions, Bluitt’s deeds are nevertheless damaging and specifically



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1386 | March 13, 2020   Page 7 of 9
       proscribed by Indiana law. Therefore, we find that the nature of the offenses

       does not render Bluitt’s sentence inappropriate.


[15]   Next, as to Bluitt’s character, Bluitt has a long criminal history. He has

       previously been charged with and convicted of carrying a handgun without a

       license, possession of cocaine, possession of marijuana, driving with a

       suspended license, forgery, theft/receiving stolen property, dealing in

       marijuana, and dealing in a narcotic drug with the intent to deliver. See Bailey v.

       State, 763 N.E.2d 998, 1004 (Ind. 2002) (holding that a history of criminal

       activity can reflect poorly on a defendant’s character at sentencing); see also

       Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007) (holding that “it is

       appropriate to consider such a [criminal] record as a poor reflection on the

       defendant’s character, because it may reveal that he . . . has not been deterred

       even after having been subjected to the police authority of the State[]”).


[16]   More to the point, Bluitt has been convicted of multiple drug crimes very

       similar to the crimes he was convicted of in this case, leading us to conclude

       that Bluitt has not learned the error of his ways. The fact that Bluitt has

       previously violated the terms of his probation and community corrections

       further underscores this point. Put another way, despite multiple opportunities

       for reform, Bluitt does not seem to understand the severity of his crimes and has

       not indicated that he will change his behavior anytime soon. Thus, we find that

       Bluitt’s character does not render his sentence inappropriate.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1386 | March 13, 2020   Page 8 of 9
[17]   In sum, we will not revise Bluitt’s sentence pursuant to Indiana Appellate Rule

       7(B).


[18]   The judgment of the trial court is affirmed.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1386 | March 13, 2020   Page 9 of 9
