MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                               Jan 28 2020, 10:56 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen Gerald Gray                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Ian McLean
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jamal R. Smith,                                          January 28, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-881
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff                                       Alicia Gooden, Judge
                                                         The Honorable
                                                         Richard Hagenmaier, Magistrate
                                                         Trial Court Cause No.
                                                         49G21-1710-F2-42053



Vaidik, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-881 | January 28, 2020                  Page 1 of 19
                                          Case Summary
[1]   Jamal R. Smith appeals his convictions and sentence for Level 2 felony dealing

      in a narcotic drug and Class B misdemeanor possession of marijuana.

      Specifically, Smith contends that (1) the trial court erred by admitting evidence

      from searches he claims violated the Fourth Amendment to the United States

      Constitution, (2) the trial court erred by admitting a recording of his on-scene

      interview in violation of the Fifth Amendment to the United States

      Constitution, (3) the trial court erred in finding him to be a habitual offender

      when he did not personally waive his right to a jury trial for the habitual-

      offender charge, and (4) his sentence is inappropriate in light of the nature of

      the offenses and his character. We affirm the convictions but reverse the trial

      court’s habitual-offender finding and the twenty-year enhancement imposed as

      a result and remand this case to the trial court for further proceedings.



                            Facts and Procedural History
[2]   In 2010, Smith was convicted of Class B felony dealing in cocaine and

      sentenced to ten years executed in the Department of Correction. In March

      2017, the trial court modified Smith’s sentence so that he would be released on

      parole. As part of his parole, Smith agreed to abide by several conditions,

      including that he would obtain written permission from his parole officer before

      changing his residence, that he would not possess controlled substances, and

      that he would not engage in conduct prohibited by federal or state law or local

      ordinance. See Suppression Hr’g Ex. 1. Smith also agreed

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-881 | January 28, 2020   Page 2 of 19
              that my person and residence or property under my control may
              be subject to reasonable search by my supervising officer or
              authorized official of the Department of Correction if the officer
              or official has reasonable cause to believe that the parolee is
              violating or is in imminent danger of violating a condition to
              remaining on parole.


      Id.


[3]   Initially, Smith requested to live at a house on White Avenue in Indianapolis,

      but his parole officer denied that request. Instead, Smith’s parole officer

      approved him to live only at a house on Goodlet Avenue. In October 2017,

      Smith’s parole officer received hospital-discharge documents showing that

      Smith’s address was on White Avenue. Thereafter, Smith’s parole officer

      requested a compliance check of the White Avenue address, suspecting that

      Smith was in violation of his parole by living at an unapproved address.


[4]   On October 27, four parole officers went to the house on White Avenue. When

      they arrived, they knocked on the door and identified themselves as parole

      officers. After about five minutes, Smith came to the door. When he opened

      the door, the parole officers immediately smelled marijuana. Smith was

      dressed only in his underwear and told the parole officers that he had just

      woken up. The parole officers explained why they were there, and Smith let

      them inside. Once inside, the parole officers went through the house to see if

      anyone else was inside. During this sweep, one of the parole officers saw

      marijuana and paraphernalia on a table in one of the rooms. After they

      completed their sweep and found that no one else was inside the home, the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-881 | January 28, 2020   Page 3 of 19
      parole officers called the Indianapolis Metropolitan Police Department to report

      their discovery of marijuana and paraphernalia.


[5]   Detective Christopher Cooper responded, and once he arrived, the parole

      officers took him to the room where they had seen the marijuana and

      paraphernalia. Detective Cooper then went to his police car and began

      applying for a search warrant. As Detective Cooper was completing the

      application for a search warrant, other IMPD officers arrived and waited

      outside the house. Once the search warrant was granted, Detective Cooper

      went back inside, turned on his recording device, and read the search warrant

      and Smith’s Miranda rights to him. After he finished, the following exchange

      occurred:


              Detective Cooper: Okay, alright, want to talk to me about
                                anything in this house right now?


              Smith:                    No.


              Detective Cooper: Alright, I’ll come talk to you here in a
                                minute, if you have any questions just ask
                                me.


      Ex. 25, Int. 3 at 1:24-1:27 (recorded on scene). Detective Cooper then searched

      Smith, who is paralyzed and confined to a wheelchair, and his chair. Inside the

      wheelchair’s cushion, Detective Cooper found $2,960. Another IMPD officer

      felt a large lump inside a different seat cushion in a laundry basket. He opened

      the cushion and found bundles of cash totaling approximately $50,000. A third


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-881 | January 28, 2020   Page 4 of 19
      IMPD officer searched the front closet. While he was searching, a bag of white

      powder, a sock, and a scale fell out of the closet. The powder was later

      analyzed and found to be 176.30 grams of heroin and fentanyl. IMPD officers

      also found numerous documents belonging to Smith, including a certificate of

      title to his car, a bank statement addressed to Smith, his birth certificate, and his

      Social Security card. See Exs. 19-22. Throughout the search, Smith told the

      officers that the money and marijuana belonged to his brother, Jamil Buchanan,

      and that the heroin and fentanyl was not his.


[6]   At some point during the search, Buchanan arrived and told the officers that his

      mother (who is also Smith’s mother) owns the White Avenue house and that

      Buchanan rented it from her. As Buchanan arrived, one of the officers

      remarked, in Smith’s presence, “I say you snatch his brother up too since he

      said it’s his brother’s weed.” Ex. 25, Int. 4 at 43:25. When Smith again

      claimed that the marijuana was his brother’s, the same IMPD officer said, “so

      it’s your brother’s? Where’s he at, snatch his ass up.” Id. at 44:49. Detective

      Cooper then interviewed Buchanan. After reading him his Miranda rights,

      Detective Cooper told him what they had found inside the house. Detective

      Cooper also told Buchanan that Smith claimed that neither the drugs nor the

      money belonged to Smith. Thereafter, Buchanan and Smith got into an

      argument over why Smith did not change his address and, eventually, Smith

      admitted that “all the drugs” belonged to him. Ex. 25, Int. 5 at 30:03.


[7]   Smith and Buchanan’s mother then arrived at the house. Smith told her that

      the police had found drugs and that the drugs were his. His mother began

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-881 | January 28, 2020   Page 5 of 19
      crying and told Smith, “you gotta get out of this house.” Id. at 36:35-36:40.

      Detective Cooper told Smith’s mother that Smith initially claimed that the

      marijuana and money belonged to Buchanan. In response, Smith began

      shouting at the officers, claiming that he did not say that the marijuana and

      money were Buchanan’s. In the midst of his rant, Smith said, “I ain’t

      answering no more questions man cause ya’ll twist around my story. Ya’ll

      making me seem like I’m on some b*llsh*t.” Id. at 37:25. Smith continued

      shouting that he did not live at the house on White Avenue and that the drugs

      and money were not his. See id. at 38:55. Officers then arrested Smith and

      allowed Buchanan and their mother to leave.


[8]   The State charged Smith with Level 2 felony dealing in a narcotic drug (heroin),

      Level 3 felony possession of a narcotic drug (heroin), Class A misdemeanor

      dealing in marijuana, and Class B misdemeanor possession of marijuana. In

      January 2018, the State filed a Notice of Intent to File Habitual Offender

      Enhancement. However, it did not actually file a charge alleging that Smith is a

      habitual offender at that time. Before trial, Smith filed a motion to suppress the

      evidence found during the searches of the White Avenue house. He argued that

      the parole officers’ search of the house (which formed the basis for the warrant

      obtained by Detective Cooper) violated the Fourth Amendment to the United

      States Constitution. The State responded that the parole officers’ search of the

      White Avenue house was permissible because Smith had agreed to such a

      search as part of his parole. See Suppression Hr’g Ex. 1. The trial court denied

      the motion to suppress. In November 2018, Smith waived his right to a jury


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-881 | January 28, 2020   Page 6 of 19
      trial. In December 2018, the State filed the habitual-offender charge. There

      was no initial hearing and no waiver of a jury trial on the habitual-offender

      charge.


[9]   A month later, the case proceeded to a bench trial, where Smith objected to all

      of the evidence obtained from the searches of the White Avenue house. He

      renewed his argument that the parole officers’ search, which led to a call to

      IMPD and an application for a warrant, violated the Fourth Amendment to the

      United States Constitution. However, the trial court disagreed and admitted

      the evidence. Smith also objected to the recording of his on-scene interview

      during which he admitted that all the drugs were his. The trial court overruled

      his objection and admitted the recording. The court found Smith guilty of

      Level 2 felony dealing in a narcotic drug, Level 3 felony possession of a narcotic

      drug, and Class B misdemeanor possession of marijuana. The trial court found

      him not guilty of Class A misdemeanor dealing in marijuana. Regarding the

      habitual-offender charge, the court asked the parties, “And . . . what are we

      doing; is there going to be a second phase[?]” Tr. p. 229. Smith responded that

      the State had waived proceeding on the habitual-offender charge because Smith

      never had an initial hearing and did not waive his right to a jury trial on his

      habitual-offender status. The court then held a brief initial hearing, where it

      didn’t advise Smith that he had a right to a jury trial on the habitual-offender

      charge. At the bench trial on the habitual-offender charge, Smith stipulated to

      his prior convictions and the court found that he is a habitual offender.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-881 | January 28, 2020   Page 7 of 19
[10]   At sentencing, the trial court found no mitigators and the following aggravators:

       (1) Smith’s extensive criminal history (eight juvenile proceedings, including true

       findings for dealing in cocaine and battery resulting in bodily injury, and ten

       convictions as an adult, including seven misdemeanors and three felonies) and

       (2) the fact that he was on parole for Class B felony dealing in cocaine when he

       committed the offenses in this case. The trial court also noted that Smith had a

       significant amount of fentanyl and stated, “Fentanyl is an extremely dangerous

       drug . . . It is very addicting and people just flat out die from it.” Tr. p. 247.

       The court merged the possession into the dealing count and imposed the

       maximum sentence of thirty years, enhanced by twenty years for Smith’s status

       as a habitual offender. Of those fifty years, the trial court suspended ten years

       and ordered two years of probation, making Smith’s executed sentence forty

       years. For the possession-of-marijuana conviction, the trial court sentenced

       Smith to 180 days to be served concurrently.


[11]   Smith now appeals.



                                  Discussion and Decision
                      I. Searches of the White Avenue House
[12]   Smith renews his argument that the parole officers’ search of the White Avenue

       house violated the Fourth Amendment. He also contends that the search

       warrant, based on the marijuana and paraphernalia seen by the parole officers,

       was invalid and therefore the trial court should have granted his motion to


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-881 | January 28, 2020   Page 8 of 19
       suppress. Whether a search was constitutional is a question of law we review

       de novo. Kelly v. State, 997 N.E.2d 1045, 1050 (Ind. 2013).


[13]   Smith’s parole agreement contained the following condition:


               I understand that I am legally in the custody of the Department
               of Correction and that my person and residence or property
               under my control may be subject to reasonable search by my
               supervising officer or authorized official of the Department of
               Correction if the officer or official has reasonable cause to believe
               that the parolee is violating or is imminent danger of violating a
               condition to remaining on parole.


       Suppression Hr’g Ex. 1. Smith does not contest the validity of that condition.

       Instead, Smith argues that the condition did not justify the parole officers’

       search in this case for two reasons: (1) the White Avenue house was not

       property under his control and (2) even if it was, there was no reasonable cause

       to search it.


                                                  A. Control
[14]   Smith first argues that the White Avenue house was not under his control. 1

       However, there is ample evidence to the contrary. First, Smith was the only




       1
        Notably, the State does not argue that Smith does not have standing to object to the search of the White
       Avenue house based on alleged Fourth Amendment violations. See Bradley v. State, 4 N.E.3d 831, 839 (Ind.
       Ct. App. 2014) (“A defendant aggrieved by an illegal search and seizure only through the introduction of
       damaging evidence secured by the search of a third person’s premises has not had any of his Fourth
       Amendment rights infringed.”), trans. denied. Instead, the State argues only that the White Avenue house
       was under Smith’s control and that therefore the parole officers’ search was authorized by the parole
       condition.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-881 | January 28, 2020                Page 9 of 19
       person inside the White Avenue house when the parole officers arrived. See Tr.

       p. 217. Next, when Smith answered the door, he was wearing only underwear

       and told the parole officers that he had just woken up. See id. at 9. Smith then

       allowed the parole officers inside the house. See id. at 26. Moreover, he

       actually admitted at trial that he was “in control of the house” when the parole

       officers arrived. Id. at 218. Finally, there were numerous documents belonging

       to Smith found inside the White Avenue house. See Exs. 19-22. All of this

       shows that Smith was in control of the White Avenue house when the parole

       officers searched it. As such, the trial court did not abuse its discretion by

       finding that the White Avenue house was subject to search pursuant to the

       parole condition.


                                         B. Reasonable Cause
[15]   Smith also argues that there was no reasonable cause to search the White

       Avenue house pursuant to the parole condition. Reasonable suspicion is a less

       demanding standard than probable cause and requires a showing considerably

       less than preponderance of the evidence, but it still requires at least a minimal

       level of objective justification and more than an inchoate and unparticularized

       suspicion or “hunch” of criminal activity. State v. Schlechty, 926 N.E.2d 1, 7

       (Ind. 2010), reh’g denied.


[16]   One condition of Smith’s parole was that he would not change his residence

       without notifying his parole officer. The record reveals that Smith’s supervising

       parole officer received hospital-discharge documents that showed Smith’s


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-881 | January 28, 2020   Page 10 of 19
       address was on White Avenue—an unapproved residence. His parole officer

       therefore requested a compliance check, and four parole officers went to the

       White Avenue house. When the parole officers arrived, Smith answered the

       door. His presence corroborated the hospital-discharge documents showing

       that Smith’s address was on White Avenue and gave the parole officers

       reasonable cause to believe that Smith was living there. Therefore, both the

       hospital-discharge documents and Smith’s presence gave the parole officers

       reasonable cause to go inside and look for further evidence that Smith was

       living at the White Avenue house.


[17]   Smith also agreed not to possess controlled substances or engage in conduct

       prohibited by federal or state law or local ordinance. See Suppression Hr’g Ex.

       1. When Smith opened the door of the White Avenue house, the parole officers

       immediately smelled marijuana. The smell of marijuana by itself would have

       given the parole officers reasonable cause to go inside the house and see if

       Smith was violating a condition of his parole or engaged in conduct prohibited

       by state law.


[18]   Based on the totality of the circumstances, we find that the parole officers had

       reasonable cause to believe that Smith was (1) violating or in imminent danger

       of violating a condition to remaining on parole—based on the hospital-

       discharge documents showing White Avenue as his address and (2) engaged in

       criminal activity—based on the odor of marijuana the parole officers smelled

       when Smith opened the door.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-881 | January 28, 2020   Page 11 of 19
[19]   For all of these reasons, we reject Smith’s argument that the searches of the

       White Avenue house violated the Fourth Amendment. 2


                                         II. Smith’s Admission
[20]   Smith next argues that the trial court erred in admitting the recording of his on-

       scene interview, during which he admitted that “all the drugs” were his. A trial

       court has broad discretion in ruling on the admission or exclusion of evidence.

       Palilonis v. State, 970 N.E.2d 713, 731 (Ind. Ct. App. 2012), trans. denied. The

       trial court’s ruling on the admissibility of evidence will be disturbed on review

       only upon a showing of an abuse of discretion. Id. An abuse of discretion

       occurs when the trial court’s ruling is clearly against the logic, facts, and

       circumstances presented. Id. We do not reweigh the evidence, and we consider

       conflicting evidence most favorable to the trial court’s ruling. Id. at 731-32.


                                              A. Fifth Amendment
[21]   Smith first argues that the incriminating statements he made were taken in

       violation of his right to remain silent and that therefore the trial court should

       have excluded the recording of his on-scene interview. An assertion of the right

       to remain silent must be clear and unequivocal, and in determining whether a




       2
         Smith also contends that the searches violated Article 1, Section 11 of the Indiana Constitution. In its brief,
       the State claims that Smith waived this issue by failing to challenge the searches under the Indiana
       Constitution in the trial court. Smith did not respond to the State’s claim in his reply brief. Even if we found
       that this issue was not waived, the searches were reasonable under the Indiana Constitution. See Litchfield v.
       State, 824 N.E.2d 356, 361 (Ind. 2005) (setting forth three-part reasonableness test for searches and seizures
       under the Indiana Constitution).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-881 | January 28, 2020                    Page 12 of 19
       person has asserted their rights, the defendant’s statements are considered as a

       whole. Clark v. State, 808 N.E.2d 1183, 1190 (Ind. 2004). A person must do

       more than express reluctance to talk to invoke his right to remain silent. Id. A

       statement that “I’m through with this,” followed by continued dialogue without

       pausing or indicating that the defendant would no longer respond, does not

       unambiguously assert the right to remain silent. Haviland v. State, 677 N.E.2d

       509, 514 (Ind. 1997).


[22]   Smith alleges that he made two requests for the on-scene interview to end:


               (1) Detective Cooper:             Okay, alright, want to talk to me about
                                                 anything in this house right now?


                   Smith:                        No.


                   Detective Cooper:             Alright, I’ll come talk to you here in a
                                                 minute, if you have any questions just
                                                 ask me.


               (2) Smith:                        I ain’t answering no more questions
                                                 man cause ya’ll twist around my story.
                                                 Ya’ll making me seem like I’m on
                                                 some b*llsh*t.


       Ex. 25, Int. 3 at 1:24-1:27, Int. 5 at 37:25. Smith argues that each of these

       statements constituted an assertion of his right to remain silent.


[23]   Smith’s statements did not expressly invoke his right to remain silent.

       Regarding the first statement, when heard in context, Smith’s statement is an


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-881 | January 28, 2020   Page 13 of 19
       answer to Detective Cooper’s question of whether there is anything in the house

       that Smith wanted to tell him about before the police officers began their search.

       Although Smith answered “no,” he did not hesitate to answer Detective

       Cooper’s questions when Detective Cooper comes back to interview him after

       searching the White Avenue house. As to the statement, “I ain’t answering no

       more questions man cause ya’ll twist around my story,” Smith made this

       statement while yelling profanities at the officers and seemed to be making the

       statement because he was agitated that the officers were telling his mother a

       story that he believed to be untrue. Furthermore, after both statements, Smith

       continued talking to the officers without pausing or indicating in any manner

       that he would no longer respond. For all of these reasons, the trial court did not

       err by admitting the recording of Smith’s on-scene interview.


                                   B. Voluntariness of Admission
[24]   Smith also argues that “his entire [on-scene interview] was the product of a

       coercive atmosphere, designed to overcome his free will which rendered his

       statement involuntary.” Appellant’s Br. p. 30. To be admissible, a suspect’s

       confession must also be voluntarily given. Palilonis, 970 N.E.2d at 732. A

       confession is voluntary if it is the product of a rational intellect and not the

       result of physical abuse, psychological intimidation, or deceptive interrogation

       tactics that have overcome the defendant’s free will. Id. Under the United

       States Constitution, the State must prove by a preponderance of the evidence

       that the defendant’s confession was voluntary. Clark, 808 N.E.2d at 1191. The



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-881 | January 28, 2020   Page 14 of 19
       voluntariness of a defendant’s confession is determined from the totality of the

       circumstances. Palilonis, 970 N.E.2d at 732.


[25]   The record does not support Smith’s claim of coercion. Detective Cooper read

       Smith his Miranda rights, and Smith said that he understood those rights. Smith

       did not ask for a lawyer, nor did he refuse to answer questions. The portions of

       the on-scene interview which Smith believes show coercion are the following:


               (1) When Buchanan arrived and one of the officers remarked, in
                   Smith’s presence, “I say you snatch his brother up too since
                   he said its brother’s weed.”


               (2) When the same IMPD officer said to Smith, “so it’s your
                   brother’s? Where’s he at, snatch his ass up.”


       Ex. 25, Int. 4 at 43:25, 44:49. The statements implying that Smith’s brother

       would be arrested were not coercive because Smith told officers that the drugs

       belonged to Buchanan. Smith also alleges that the police officers “deliberately

       ha[d] his mother hysterically confront [him].” Appellant’s Br. p. 31. However,

       when heard in its entirety, the recording shows that Smith’s mother was upset

       by his drug activities and by the fact that he initially told the police that the

       drugs belonged to Buchanan. It is clear from context that Smith’s mother was

       not upset by Detective Cooper’s interrogation. Finally, when heard in its

       entirety, the recording reveals that Detective Cooper did not intimidate Smith

       into making his admission. There is no evidence of violence, threats, promises,

       or other improper influences. Rather, through repeated questioning and

       encouragement to tell the truth, Detective Cooper elicited an admission. As

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-881 | January 28, 2020   Page 15 of 19
       such, we find that the record supports the trial court’s conclusion that Smith’s

       admission was voluntary.


                         III. Habitual-Offender Enhancement
[26]   Smith also argues that he did not personally waive his right to a jury trial for the

       later-filed habitual-offender charge and asks us to vacate the twenty-year

       enhancement. The State argues that Smith’s November 20, 2018 personal

       waiver on the underlying felonies included a waiver of his right to a jury trial on

       the habitual-offender charge. The Indiana Constitution’s right to a jury trial

       may be waived by one, and only one, person—the defendant. Horton v. State, 51

       N.E.3d 1154, 1155 (Ind. 2016). Unless the defendant personally communicates

       to the judge a desire to waive that right, he must receive a jury trial. Id. This

       Court recently dealt with this issue in Bradtmiller v. State, 113 N.E.3d 255, 257

       (Ind. Ct. App. 2018), where we held that a jury-trial waiver on the underlying

       charges did not apply to the later-filed habitual-offender enhancement. See also

       O’Connor v. State, 796 N.E.2d 1230, 1234 (Ind. Ct. App. 2003) (“O’Connor’s

       waiver of her right to a jury trial was not made with sufficient awareness of the

       relevant circumstances surrounding its entry and its consequences so as to be

       deemed a voluntary, knowing, and intelligent waiver of her right to a jury trial

       as to the habitual offender determination.”).


[27]   The State contends that this case is distinguishable from Bradtmiller and

       O’Connor. See Appellee’s Br. p. 23. Specifically, it says that the advisement

       Smith signed stated that he waived his right to a jury trial as to all “facts, such


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-881 | January 28, 2020   Page 16 of 19
       as a prior criminal conviction that would . . . increase the potential penalties for

       the charged offense,” that this “is a description of a habitual-offender

       enhancement,” and that therefore the trial court was not required to convene a

       jury for the habitual-offender enhancement phase of Smith’s trial. Id. at 23.

       We disagree. First, like the advisements in Bradtmiller and O’Connor, the

       advisement in this case was given to Smith before the habitual-offender charge

       was filed, in fact, it was given more than a month before the habitual-offender

       charge was filed. See Bradtmiller, 113 N.E.3d at 256 (advisement given four

       days before habitual-offender charge filed); see also O’Connor, 796 N.E.2d at

       1232 (advisement given more than a month before habitual-offender charge

       filed). Furthermore, the language cited by the State neither (1) informed Smith

       of his right to a jury trial on the habitual-offender charge nor (2) clearly

       informed Smith that he was waiving that right. Therefore, like the defendant in

       Bradtmiller, Smith’s waiver was not made with sufficient awareness surrounding

       its entry and consequences. We therefore reverse the trial court’s habitual-

       offender finding and the enhancement imposed thereon and remand this case so

       that the State can decide whether to pursue the habitual-offender enhancement.


                                  IV. Inappropriate Sentence
[28]   Finally, Smith contends that, assuming we reverse the habitual-offender

       sentencing enhancement, his “remaining sentences of thirty (30) years of which

       ten (10) are suspended is excessive . . . [and] unreasonable.” Appellant’s Br. p.

       35. He asks us to revise it pursuant to Indiana Appellate Rule 7(B), which

       provides that an appellate court “may revise a sentence authorized by statute if,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-881 | January 28, 2020   Page 17 of 19
       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.” “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).


[29]   The sentencing range for a Level 2 felony is ten to thirty years, with an advisory

       sentence of seventeen-and-a-half years. Ind. Code § 35-50-2-4.5. As for the

       nature of the offenses, Smith was convicted of dealing in heroin that contained

       fentanyl—an extremely dangerous drug that is very addicting and often life-

       threatening. See Tr. p. 247. And it wasn’t a small amount of heroin and

       fentanyl that was found—but 176.30 grams, and with $50,000 at his disposal,

       it’s clear that Smith was no low-level dealer. Regarding his character, Smith’s

       criminal history supports his sentence. According to the pre-sentence

       investigation report, thirty-one-year-old Smith had been convicted of three

       felonies, including Class B felony dealing in cocaine, seven misdemeanors, and

       four juvenile adjudications, including true findings for dealing in cocaine and

       battery resulting in bodily injury. Appellant’s App. Vol. II pp. 63-69. He was

       also on parole for Class B felony dealing in cocaine when he committed the


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-881 | January 28, 2020   Page 18 of 19
       offense. Therefore, we cannot say that Smith’s sentence of thirty years with ten

       years suspended and two years of probation is inappropriate.


[30]   Affirmed in part, reversed in part, and remanded for further proceedings.


       Riley, J., and Bradford, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-881 | January 28, 2020   Page 19 of 19
