MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                           Oct 07 2015, 9:21 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
Leanna Weissmann                                         Gregory F. Zoeller
Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joshua Comer,                                            October 7, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         15A04-1503-CR-102
        v.                                               Appeal from the Dearborn Circuit
                                                         Court
State of Indiana,                                        The Honorable James D.
Appellee-Plaintiff,                                      Humphrey, Judge
                                                         Trial Court Cause No.
                                                         15C01-1310-FB-41



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A04-1503-CR102 | October 7, 2015   Page 1 of 8
                                          Case Summary
[1]   Appellant-Defendant Joshua Comer was involved in three separate drug

      transactions with an undercover police officer in which the officer purchased

      heroin from Comer and his accomplices. Comer was convicted of Class B

      felony dealing in a narcotic drug (heroin) and sentenced to a fifteen-year term of

      incarceration. Comer requests that this court revise his sentence pursuant to

      Indiana Appellate Rule 7(B). We affirm Comer’s sentence.



                            Facts and Procedural History
[2]   On September 30, 2013, Detective Nicholas Beetz, while working undercover

      with the Dearborn County Special Crimes Unit, bought 5.7 grams of marijuana

      from Mary Jane Smith in the parking lot of a Greendale, Indiana White Castle.

      On October 15, 2013, Detective Beetz again met Smith at the White Castle

      parking lot to conduct a second controlled buy. This time, Smith was

      accompanied by Comer, Lamocres Johnson, and a confidential informant.

      Smith indicated that Comer and Johnson were her suppliers. Detective Beetz

      purchased 1.2 grams of heroin for $300 and 7.5 milligrams of hydrocodone for

      $70 from Smith. The confidential informant later informed Detective Beetz

      that Comer was dealing heroin.


[3]   On October 21, 2013, Detective Beetz again met Comer and the confidential

      informant at the Greendale White Castle. Detective Beetz negotiated with

      Comer over the price of the heroin and ultimately purchased two grams of


      Court of Appeals of Indiana | Memorandum Decision 15A04-1503-CR102 | October 7, 2015   Page 2 of 8
      heroin for $460. The following week, Detective Beetz spoke to Comer on the

      phone several times to set up another heroin buy. On October 29, 2013,

      Detective Beetz, while equipped with a recording device, met Comer and

      Johnson at the Greendale White Castle to carry out the buy. Detective Beetz

      approached Comer’s vehicle and spoke to Comer through the window. Comer

      then handed Detective Beetz a crumpled piece of loose-leaf paper containing a

      mixture of crushed Ibuprofen and heroin which had a net weight of 1.98 grams.

      Detective Beetz then paid Comer $600 and returned to his vehicle. Soon after

      leaving the White Castle, officers stopped and arrested Comer and Johnson.


[4]   The State charged Comer with three counts of Class B felony dealing in a

      narcotic drug (heroin), two counts of Class B felony conspiracy to commit

      dealing in a narcotic drug, Class B felony dealing in a schedule II controlled

      substance (hydrocodone), Class B felony conspiracy to commit dealing in a

      schedule II controlled substance, and Class D felony maintaining a common

      nuisance. A jury found Comer guilty of one count of dealing in a narcotic drug

      and one count of conspiracy to commit dealing in a narcotic drug.


[5]   On December 15, 2014, the trial court sentenced Comer to fifteen years of

      imprisonment for dealing in a narcotic drug and vacated the conspiracy

      conviction to avoid double jeopardy issues. In its pronouncement of sentence,

      the trial court identified the following aggravating circumstances:

              First of all: criminal history. The Court finds that…the
              defendant has a significant criminal history. He’s only 26 years
              of age, has approximately ten prior convictions, including a

      Court of Appeals of Indiana | Memorandum Decision 15A04-1503-CR102 | October 7, 2015   Page 3 of 8
              crime of violence for assault and domestic violence, multiple
              contempt of court findings, which the defendant indicates are for
              failure to appear. In addition, according to the testimony of
              Detective Beetz, defendant was involved in multiple other drug
              deals conducted in Dearborn County….[D]efendant’s
              involvement in these other dealing activities on October 15, 2013,
              October 21, 2013, shows his significant involvement with illegal
              drugs. For example, while co-defendant Smith provided illegal
              drugs to an undercover officer on 10/15/13, Comer
              communicated with Smith and appeared to be directing her
              activities, and Comer and Smith left together after the deal was
              concluded….The Court also considers defendant’s lack of
              remorse and dishonesty with the Court. In addition, the Court
              finds that Defendant Comer has attempted to portray Defendant
              Smith as the “ring leader” in these transactions. The evidence
              does not support Mr. Comer’s statements….Comer’s attempt to
              avoid the truth is consistent with the mental evaluation of Dr.
              Cresci, which was requested by the defendant for the competency
              evaluation. Dr. Cresci stated it might be said Mr. Comer is
              highly manipulative.


      Tr. pp. 674-76. The trial court also considered Comer’s mental health history

      as a potential mitigating factor, however gave it little weight because the mental

      health professionals who evaluated Comer reported no such symptoms and

      suggested that Comer was malingering.



                                 Discussion and Decision
[6]   Comer was convicted of a Class B felony which carried a potential penalty of

      between six and twenty years, with an advisory sentence of ten years. Ind.

      Code § 35-50-2-5 (2014). Comer argues that his fifteen-year sentence is

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

      Court of Appeals of Indiana | Memorandum Decision 15A04-1503-CR102 | October 7, 2015   Page 4 of 8
[7]   “Ind. Appellate Rule 7(B) empowers us to independently review and revise

      sentences authorized by statute if, after due consideration, we find the trial

      court’s decision inappropriate in light of the nature of the offense and the

      character of the offender.” Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App.

      2013), trans. denied. “An appellant bears the burden of showing both prongs of

      the inquiry favor revision of [his] sentence.” Id. (citing Childress v. State, 848

      N.E.2d 1073, 1080 (Ind. 2006)). In conducting a Rule 7(B) analysis, “[t]he

      principal role of appellate review should be to attempt to leaven the

      outliers…not to achieve a perceived ‘correct’ result in each case.” Cardwell v.

      State, 895 N.E.2d 1219, 1225 (Ind. 2008). “We must give ‘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.’” Gil v. State,

      988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013) (quoting Trainor v. State, 950

      N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied.).


[8]   Comer argues that the nature of his offense is less reprehensible because the

      substance he sold to Detective Beetz on October 29, 2013 was heavily cut with

      Ibuprofen, contained very little heroin, and that “it is arguably worse to deal

      1.98 grams of pure heroin than 1.98 grams of crushed up ibuprofen with a trace

      amount of heroin.” Appellant’s Br. p. 9. Comer also argues that the

      legislature’s recent amendments to the Indiana criminal code have reduced the

      punishments for drug-related crimes and that, although his crimes were




      Court of Appeals of Indiana | Memorandum Decision 15A04-1503-CR102 | October 7, 2015   Page 5 of 8
      committed before those changes took effect, leniency in sentencing is

      nevertheless appropriate here in light of those changes.


[9]   In regards to Comer’s second argument requesting leniency in light of the

      revised Indiana criminal code, this court has previously addressed the same

      argument and found it without merit.


              Generally speaking, the sentencing statutes in effect at the time
              the defendant committed the offense govern the defendant’s
              sentence. However, the doctrine of amelioration provides an
              exception to this general rule where a defendant who is sentenced
              after the effective date of a statute providing for more lenient
              sentencing is entitled to be sentenced pursuant to that statute
              rather than the sentencing statute in effect at the time of the
              commission or conviction of the crime. Notably, the doctrine of
              amelioration does not apply where the legislature, in a specific
              saving clause, expressly states an intention that crimes committed
              before the effective date of the ameliorative amendment should
              be prosecuted under prior law.


              Here, the General Assembly, in enacting the new criminal code,
              also enacted savings clauses. Specifically, both Indiana Code
              section 1-1-5.5-21 and section 1-1-5.5-22 state that the new
              criminal code “does not affect: (1) penalties incurred; (2) crimes
              committed; or (3) proceedings begun” before the effective date of
              the new criminal code sections, i.e., July 1, 2014. These sections
              also provide that “Those penalties, crimes, and proceedings
              continue and shall be imposed and enforced under prior law as if
              [the new criminal code] had not been enacted.” Id. And, in no
              uncertain terms, these sections state: “The general assembly does
              not intend the doctrine of amelioration…to apply to any
              SECTION [of the new criminal code].” Id.




      Court of Appeals of Indiana | Memorandum Decision 15A04-1503-CR102 | October 7, 2015   Page 6 of 8
               It is abundantly clear from these statutes that the General
               Assembly intended the new criminal code to have no effect on
               criminal proceedings for offenses committed prior to the
               enactment of the new code. We think this is true with regard to
               considering the appropriateness of a sentence under Appellate
               Rule 7(B); we are to proceed as if the new criminal code had not
               been enacted.


       Marley v. State, 17 N.E.3d 335, 340 (Ind. Ct. App. 2014) trans. denied (citations

       omitted).


[10]   Comer’s first argument, that his dilution of the heroin mitigates the seriousness

       of his offense, is undercut by the fact that this was not a single, isolated

       transaction. During a one-month period, Comer was involved in three separate

       heroin deals with Detective Beetz in which Beetz purchased a total of

       approximately five grams of heroin from Comer and his accomplices. Had

       Comer sold this amount to Detective Beetz in one transaction, he would have

       been guilty of a Class A felony and subject to considerably more jail time. 1

       Furthermore, we do not consider Comer’s deceit as to the purity of the heroin

       sold to Detective Beetz to be meaningfully mitigating.


[11]   With regard to the nature of his character, Comer states that he “has mental

       health issues,” appellant’s br. p. 11, but offers no details on those issues or why

       they justify a reduced sentence. In fact, the mental health professionals who




       1
        Under Indiana Code section 35-48-4-1 (2014), the offense of dealing in a narcotic drug becomes an A felony
       when the amount of the drug involved weighs three grams or more.

       Court of Appeals of Indiana | Memorandum Decision 15A04-1503-CR102 | October 7, 2015            Page 7 of 8
       evaluated Comer found no symptoms of mental health problems and suggested

       that Comer was malingering.


[12]   As the trial court noted in its sentencing statement, Comer’s character justified

       an enhanced sentence. Although Comer has no prior felony convictions, he has

       ten prior misdemeanor convictions in a span of just five years. Those

       convictions include assault and domestic battery, possession of marijuana,

       providing a false name or address to a police officer, and several convictions for

       criminal trespass. The trial court also found that Comer lacked remorse for his

       crimes and was dishonest with the court on several occasions. Comer

       attempted to portray Smith as the ring leader despite the fact that he “appeared

       to be directing her activities” with regards to the drug deals. Tr. p. 674.


[13]   Comer’s fifteen-year sentence falls between the advisory ten-year term and the

       maximum twenty-year term. As explained above, there were several

       aggravating circumstances and no significant mitigating circumstances.

       Accordingly, a sentence in excess of the advisory term is warranted. Comer has

       failed to meet his burden of showing that his sentence is inappropriate in light

       of his character or the nature of his offense.


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


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A04-1503-CR102 | October 7, 2015   Page 8 of 8
