                                                                              FILED
                                                                          Jul 22 2020, 9:03 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      James A. Hanson                                             Curtis T. Hill, Jr.
      Fort Wayne, Indiana                                         Attorney General of Indiana

                                                                  J.T. Whitehead
                                                                  Deputy Attorney General
                                                                  Indianapolis, Indiana


                                                   IN THE
           COURT OF APPEALS OF INDIANA

      Jennifer Turkette,                                          July 22, 2020
      Appellant-Defendant,                                        Court of Appeals Case No.
                                                                  20A-CR-87
              v.                                                  Appeal from the Allen Superior
                                                                  Court
      State of Indiana,                                           The Honorable Wendy W. Davis,
      Appellee-Plaintiff                                          Judge
                                                                  Trial Court Cause Nos.
                                                                  02D05-1802-F4-11
                                                                  02D05-1808-F6-917



      Crone, Judge.


                                               Case Summary
[1]   Jennifer Turkette appeals her ten-year aggregate sentence following her guilty

      plea to level 4 felony dealing in a narcotic drug, level 5 felony dealing in a

      narcotic drug, level 6 felony possession of a narcotic drug, and level 6 felony

      Court of Appeals of Indiana | Opinion 20A-CR-87 | July 22, 2020                             Page 1 of 16
      unlawful possession of a syringe. She contends that her sentence is

      inappropriate based on the nature of the offenses and her character.

      Concluding that Turkette has failed to carry her burden to show that her

      sentence is inappropriate, we affirm.


                                  Facts and Procedural History 1
[2]   On April 20, 2017, a Fort Wayne Police Department detective learned from a

      confidential informant (CI) that the detective could purchase heroin from

      Turkette. Appellant’s App. Vol. 2 at 9-10. The detective and the CI went to

      Turkette’s trailer, where Turkette seated them in her family room, which held

      numerous children’s toys. Turkette told the detective that she was currently on

      home detention and had two children who were sleeping. The presentence

      investigation report (PSI) reveals that Turkette was on home detention for

      driving with a suspended license with a prior conviction. Id. at 84-85. Turkette

      also told the detective that her supplier provided her with pure uncut heroin and

      that three of her buyers had overdosed since the beginning of the year. She

      informed the detective that someone would be coming to the trailer with the

      heroin. When that person arrived, Turkette asked the detective for the money.

      After the detective gave her $200, she went to the front door and stood just

      outside it. A man ran up to the door with a plastic bag and gave it to Turkette,




      1
        We remind Turkette’s counsel that pursuant to Indiana Appellate Rule 46(A), the appellant’s brief is
      required to set forth the statement of the facts before the standard of review.

      Court of Appeals of Indiana | Opinion 20A-CR-87 | July 22, 2020                                  Page 2 of 16
      and she handed him the money. Turkette came back inside and immediately

      handed the detective the plastic bag, which contained .8 grams of heroin.


[3]   On May 2, 2017, the CI informed the detective that he could purchase heroin

      from Turkette, and they went to her trailer. Turkette again seated them in the

      family room, where two children both under the age of ten were playing.

      Turkette had previously told the CI that the heroin was “killer” and that three

      people had already overdosed on it that week. Id. at 7. A different man than

      the one before arrived at the trailer, and Turkette asked the detective and the CI

      who had the money. The detective then paid Turkette $200 for the heroin. The

      man and Turkette went to the back of the trailer to divide the heroin, leaving

      the children alone with the detective and the CI. Turkette came back to the

      family room where the children were still playing and gave the detective .9

      grams of heroin wrapped in yellow paper.


[4]   Based on these incidents, on February 12, 2018, in cause number 02D05-1802-

      F4-11 (Cause 11), the State charged Turkette with level 4 felony dealing in a

      narcotic drug in an amount less than one gram in the presence of a child less

      than eighteen years old and level 5 felony dealing in a narcotic drug in an

      amount less than one gram. On June 4, 2018, Turkette agreed to plead guilty to

      both charges and waived her right to be sentenced within thirty days, and the

      trial court signed an order placing her into the Drug Court Diversion Program.

      Id. at 24-30. Turkette also signed a drug court participation agreement.




      Court of Appeals of Indiana | Opinion 20A-CR-87 | July 22, 2020          Page 3 of 16
[5]   Less than three weeks later, on June 24, 2018, Turkette’s then-eleven-year-old

      child called 911 to report an overdose victim. Tr. Vol. 1 at 19. Medics and

      police were dispatched to a house, where they found Turkette overdosed and

      unconscious with the hypodermic needle still in her arm. Appellant’s App. Vol.

      2 at 177-78. Turkette was in the basement of the house with both of her

      children. Police discovered that Turkette was in possession of .2 grams of

      fentanyl after the older child opened Turkette’s purse to show them where

      “mommy’s dope is.” Tr. Vol. 1 at 19.


[6]   Based on this incident, on August 3, 2018, in cause number 02D05-1808-F6-917

      (Cause 917), the State charged Turkette with level 6 felony possession of a

      narcotic drug and level 6 felony unlawful possession of a syringe. On August

      13, 2018, Turkette agreed to plead guilty to both charges and waived her right

      to be sentenced within thirty days, and the trial court signed an order placing

      her into the Drug Court Diversion Program. Appellant’s App. Vol. 2 at 187-93.

      Turkette also signed a drug court participation agreement.


[7]   On August 22, 2018, in the United States District Court for the Northern

      District of Indiana, Turkette was charged with knowingly selling a firearm to a

      convicted felon. 2 Id. at 226. Turkette was convicted of that offense, and on




      2
        In several footnotes in her brief, Turkette requests that we take judicial notice of the proceedings in the
      federal case. Because she cites no authority for the proposition that state courts may take judicial notice of
      federal proceedings, we deny her request. The information regarding the federal case recited herein is
      provided by the PSI and the transcript.

      Court of Appeals of Indiana | Opinion 20A-CR-87 | July 22, 2020                                      Page 4 of 16
      August 21, 2019, she was sentenced to fifteen months in the bureau of prisons

      and to two years of supervised release. Id.


[8]   On June 18, 2019, Turkette moved to withdraw her guilty pleas in both state

      causes, which the trial court granted, and her cases were returned to the active

      trial docket. Id. at 59, 214. On October 18, 2019, Turkette pled guilty in both

      causes without a plea agreement. Id. at 74, 219.


[9]   On November 15, 2019, a sentencing hearing was held. The trial court

      acknowledged Turkette’s remorse and found it to be a mitigating factor. The

      trial court found that her criminal history, consisting of seven misdemeanors

      and her federal felony conviction for selling a firearm to a convicted felon, was

      an aggravating factor. The trial court further found as aggravating factors that

      she had one suspended sentence that was revoked, was serving a suspended

      sentence and wearing an ankle bracelet for home detention when she

      committed the level 4 felony, 3 and was on bond when she committed the level 6

      felonies; the court explained that such conduct showed a “complete disdain” for

      the court system. Tr. Vol. 1 at 25. The trial court also noted that the PSI

      indicated that Turkette was a high risk to reoffend, which the court would use

      as a tool in determining whether it should execute Turkette’s sentence or place

      her on supervised release. The trial court also found that Turkette bragged

      about people overdosing from the heroin she sold them and that her child



      3
        The trial court misspoke here; Turkette had committed the level 5 felony dealing offense when she was on
      home detention.

      Court of Appeals of Indiana | Opinion 20A-CR-87 | July 22, 2020                                Page 5 of 16
       showed the police where her drugs were. The trial court found that the

       advisory sentence was not appropriate and that the facts and circumstances of

       the offenses and prior failed attempts at rehabilitation warranted a sentence

       above the advisory.


[10]   In Cause 11, the trial court sentenced Turkette to concurrent executed terms of

       eight years for the level 4 felony and four years for the level 5 felony. In Cause

       917, the trial court sentenced Turkette to concurrent terms of two years with

       one year suspended for each conviction. The trial court further ordered that the

       sentence in Cause 917 be served consecutive to the sentence in Cause 11, for an

       aggregate sentence of ten years with one year suspended. This appeal ensued.


                                        Discussion and Decision
[11]   Turkette asks us to revise her sentence pursuant to Indiana Appellate Rule 7(B),

       which states, “The 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.” Turkette has the burden to show that her sentence is inappropriate.

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

       218. Although Rule 7(B) requires us to consider both the nature of the offense

       and the character of the offender, the appellant is not required to prove that

       each of those prongs independently renders her sentence inappropriate. Connor

       v. State, 58 N.E.3d 215, 218 (Ind. Ct. App. 2016); see also Moon v. State, 110

       N.E.3d 1156, 1163-64 (Ind. Ct. App. 2018) (disagreeing with majority’s

       statement that Rule 7(B) “plainly requires the appellant to demonstrate that his
       Court of Appeals of Indiana | Opinion 20A-CR-87 | July 22, 2020           Page 6 of 16
       sentence is inappropriate in light of both the nature of the offenses and his

       character.”) (quotation marks omitted) (Crone, J., concurring in part and

       concurring in result in part). Rather, the two prongs are separate inquiries that

       we ultimately balance to determine whether a sentence is inappropriate.

       Connor, 58 N.E.3d at 218.


[12]   When reviewing a sentence, our principal role is to leaven the outliers rather

       than necessarily achieve what is perceived as the correct result in each case.

       Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We review sentences in

       their entirety to avoid overlooking the forest by focusing on the trees. Id. “We

       do not look to determine if the sentence was appropriate; instead we look to

       make sure the sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864,

       876 (Ind. 2012). “[S]entencing is principally a discretionary function in which

       the trial court’s judgment should receive considerable deference.” Cardwell, 895

       N.E.2d at 1222. “Such deference should prevail unless overcome by

       compelling evidence portraying in a positive light the nature of the offense (such

       as accompanied by restraint, regard, and lack of brutality) and the defendant’s

       character (such as substantial virtuous traits or persistent examples of good

       character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). As we assess

       the nature of the offenses and character of the offender, “we may look to any

       factors appearing in the record.” Boling v. State, 982 N.E.2d 1055, 1060 (Ind.

       Ct. App. 2013). Ultimately, whether a sentence should be deemed

       inappropriate “turns on our sense of the culpability of the defendant, the




       Court of Appeals of Indiana | Opinion 20A-CR-87 | July 22, 2020           Page 7 of 16
       severity of the crime, the damage done to others, and myriad other factors that

       come to light in a given case.” Cardwell, 895 N.E.2d at 1224. 4


[13]   Turning first to the nature of the offenses, we observe that “the advisory

       sentence is the starting point the Legislature selected as appropriate for the

       crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). In Cause

       11, Turkette was convicted of possession of a narcotic as a level 4 felony

       because she committed the offense in the presence of children. Ind. Code § 35-

       48-4-1. The advisory sentence for a level 4 felony is six years, with a range of

       two to twelve years. Ind. Code § 35-50-2-5.5. Turkette was given two years

       above the advisory with no time suspended. She was also convicted of level 5

       felony possession of a narcotic. The advisory sentence for a level 5 felony is




       4
          Although Turkette seeks our review pursuant to Appellate Rule 7(B), she asserts that the trial court’s
       failure to properly recognize and weigh aggravating and mitigating factors resulted in an inappropriate
       sentence. We note that appellate review under Rule 7(B) is not a review of the trial court’s consideration of
       aggravators and mitigators, but rather, as the rule states, an examination of the appellant’s sentence based on
       the nature of the offense and the character of the offender, which we may undertake even if there is no
       irregularity in the trial court’s sentencing decision. See Childress v. State, 848 N.E.2d 1073, 1079-80 (Ind.
       2006) (discussing application of Rule 7(B)); see also Buchanan v. State, 767 N.E.2d 967, 972 (Ind. 2002)
       (“Although a trial court may have acted within its lawful discretion in determining a sentence, Article 7, § 4
       of the Indiana Constitution authorizes independent appellate review and revision of a sentence imposed by
       the trial court.”). We further note that prior to 2005, when the legislature amended our sentencing statutes,
       the trial court’s weighing of aggravating and mitigating factors was reviewed under an abuse of discretion
       standard. See Anglemyer, 868 N.E.2d at 487-91 (discussing amendment of sentencing statutes). Since the
       2005 amendments, as our supreme has explained, “[b]ecause the trial court no longer has any obligation to
       ‘weigh’ aggravating and mitigating factors against each other when imposing a sentence, ... a trial court can
       not now be said to have abused its discretion in failing to ‘properly weigh’ such factors.” Id. at 491. Although
       there remain other ways that a trial court can abuse its discretion in sentencing, id. at 490-91, Turkette does
       not articulate a cogent argument in that regard. Accordingly, she has waived any claims that the trial court
       abused its discretion in sentencing her. See Ind. Appellate Rule 46(A)(8)(a) (requiring that contentions in
       appellant’s brief be supported by cogent reasoning and citations to authorities, statutes, and the appendix or
       parts of the record on appeal); Casady v. State, 934 N.E.2d 1181, 1190 (Ind. Ct. App. 2010) (concluding that
       defendant waived claim that trial court improperly admitted evidence by failing to cite rules of evidence and
       case law), trans. denied (2011).

       Court of Appeals of Indiana | Opinion 20A-CR-87 | July 22, 2020                                    Page 8 of 16
       three years, with a range of one to six years. Ind. Code § 35-50-2-6. She was

       sentenced to four years executed.


[14]   In Cause 917, she was convicted of two level 6 felonies. The advisory sentence

       for a level 6 felony is one year, with a range of six months to two and a half

       years. Ind. Code § 35-50-2-7. She was sentenced to two years, with one year

       suspended. We note that the sentence in Cause 917 is required to be

       consecutive to the sentence in Cause 11 because Turkette committed the

       offenses in Cause 917 when she was on bond in Cause 11. Appellant’s App.

       Vol. 2 at 89; Ind. Code § 35-50-1-2. Overall, an aggregate sentence based on the

       advisory would have been seven years, and she was sentenced to ten years,

       three years over the advisory sentence.


[15]   Turning now to the specific facts and circumstances of Turkette’s offenses, we

       observe that her children were with her or nearby during their commission.

       Although this is accounted for in one count of dealing by its elevation to a level

       4 felony offense, the children were in the trailer during the other dealing

       offense, and they were with her when she overdosed and went unconscious

       with the syringe still stuck in her arm. In fact, it appears that one of the

       children called 911. This would have been a very traumatic experience for the

       child. Also very troubling is that Turkette’s child knew where Turkette’s

       fentanyl was and had ready access to it. Thus, Turkette’s actions have exposed

       her children to potentially dangerous individuals who were buying and selling

       drugs and to very dangerous, life-threatening substances.



       Court of Appeals of Indiana | Opinion 20A-CR-87 | July 22, 2020            Page 9 of 16
[16]   As for Turkette’s character, she has shown a lack of concern for the safety and

       security of her children. 5 Her boasting that her heroin was “killer” and about

       the number of people who have overdosed from her drugs shows a lack of

       regard for the lives of others. Appellant’s App. Vol. 2 at 7. Her criminal




       5
         Turkette cites Reis v. State, 88 N.E.3d 1099 (Ind. Ct. App. 2017), for the proposition that “[t]he analysis of
       the ‘character of the offender’ begins with an assessment of ‘the trial court’s recognition or non-recognition of
       aggravators and mitigators as an initial guide to determining whether the sentence was inappropriate.’”
       Appellant’s Br. at 23 (quoting Reis, 88 N.E.3d at 1105). We note that the statement in Reis can be traced back
       to Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006), which was handed down while Anglemyer was
       up on transfer. The Gibson court acknowledged the uncertainty surrounding appellate review of a trial court’s
       sentencing decision in light of the 2005 sentencing amendments and anticipated that our supreme court
       would soon provide guidance when it handed down Anglemyer:
              Until [our supreme] court issues an opinion in Anglemyer, we will assume that it is necessary to
              assess the accuracy of a trial court’s sentencing statement if, as here, the trial court issued one,
              according to the standards developed under the ‘presumptive’ sentencing system …. We will
              assess the trial court’s recognition or nonrecognition of aggravators and mitigators as an initial
              guide to determining whether the sentence imposed here was inappropriate.
       Id. at 146-47 (citations omitted).
       Anglemyer clarified appellate review of sentencing decisions in light of the 2005 sentencing amendments by
       setting forth the manner in which a trial court may be said to abuse its discretion in sentencing and then
       conducting a separate analysis under Rule 7(B) that did not involve an assessment of the trial court’s
       recognition or non-recognition of aggravators and mitigators. 868 N.E.2d at 487-93. Based on Anglemyer, we
       do not believe that a Rule 7(B) analysis should begin with an assessment of the trial court’s recognition or
       non-recognition of aggravators and mitigators. Therefore, we do not believe that the statement in Reis, and
       the other cases listed below, accurately represents appellate review under Rule 7(B). See Custance v. State, 128
       N.E.3d 8, 10 (Ind. Ct. App. 2019) (“We assess the trial court’s recognition or non-recognition of aggravators
       and mitigators as an initial guide to determining whether the sentence imposed was inappropriate.”); Henson
       v. State, 86 N.E.3d 432, 441 (Ind. Ct. App. 2017) (same); Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App.
       2017) (same), trans. denied; Green v. State, 65 N.E.3d 620, 637 (Ind. Ct. App. 2016) (same), trans. denied (2017);
       Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016) (same); Stephenson v. State, 53 N.E.3d 557, 561
       (Ind. Ct. App. 2016) (same); Grundy v. State, 38 N.E.3d 675, 683 (Ind. Ct. App. 2015) (same), trans. denied;
       Ellis v. State, 29 N.E.3d 792, 800 (Ind. Ct. App. 2015) (same), trans. denied; Sandleben v. State, 22 N.E.3d 782,
       797 (Ind. Ct. App. 2014) (same), trans. denied (2015); Caraway v. State, 977 N.E.2d 469, 472 (Ind. Ct. App.
       2012) (same), trans. denied (2013); Rhoton v. State, 938 N.E.2d 1240, 1248 (Ind. Ct. App. 2010) (same), trans.
       denied (2011); Ruiz v. State, 926 N.E.2d 532, 537 (Ind. Ct. App. 2010) (same), trans. denied; Stokes v. State, 908
       N.E.2d 295, 304 (Ind. Ct. App. 2009) (same), trans. denied; Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct.
       App. 2008) (same); Taylor v. State, 879 N.E.2d 1198, 1206 (Ind. Ct. App. 2008) (same); Lemond v. State, 878
       N.E.2d 384, 394 (Ind. Ct. App. 2007) (same), trans. denied (2008); Roush v. State, 875 N.E.2d 801, 812 (Ind.
       Ct. App. 2007) (same); Phillips v. State, 875 N.E.2d 480, 483 (Ind. Ct. App. 2007) (same), trans. denied (2008);
       Long v. State, 865 N.E.2d 1031, 1035 (Ind. Ct. App. 2007) (same), trans. denied.



       Court of Appeals of Indiana | Opinion 20A-CR-87 | July 22, 2020                                      Page 10 of 16
history, though many of her convictions are minor, shows a chronic disrespect

for the law and a continuing unwillingness or inability to abide by it. In the

year 2000, she was convicted of class B misdemeanor possession of marijuana,

class A misdemeanor driving while suspended, and class C misdemeanor

leaving the scene of an accident. In 2004, she was convicted of class B

misdemeanor reckless driving. In 2016, she was convicted of class A

misdemeanor driving while suspended, and her suspended sentence was

revoked. She was on home detention for that offense when she committed the

level 5 felony dealing offense in April 2017. In 2017, she was convicted of class

A misdemeanor driving while suspended and was serving her suspended

sentence for this crime when she committed the level 4 felony dealing offense.

In 2018, she received her fourth conviction for class A misdemeanor driving

while suspended and was arrested for knowingly selling a firearm to a convicted

felon, a federal felony. She was ultimately convicted of that federal offense,

which involved her purchasing a gun for her boyfriend, a convicted felon and a

large-scale drug dealer. When the police obtained a warrant to search his

home, they found methamphetamine, heroin, fentanyl, cocaine, crack cocaine,

marijuana, edibles, twenty-six guns, and two bombs. We recognize that her

actions are related to her drug addiction, but she was given a chance in drug

court and did not or could not take advantage of it. We conclude that based on

the nature of the offenses and Turkette’s character, Turkette has failed to carry




Court of Appeals of Indiana | Opinion 20A-CR-87 | July 22, 2020         Page 11 of 16
       her burden to show that her ten-year aggregate sentence for four felony drug

       crimes is inappropriate. 6 Therefore, we affirm her sentence.


[17]   Affirmed.


       Altice, J., concurs.


       Bailey, J., concurs with separate opinion.




       6
         Turkette asserts that during the sentencing hearing, the police detective and prosecutor demonstrated
       animus towards her and the trial court made disparaging comments about her. These assertions do little to
       advance her argument that her sentence is inappropriate.

       Court of Appeals of Indiana | Opinion 20A-CR-87 | July 22, 2020                               Page 12 of 16
                                                        IN THE
              COURT OF APPEALS OF INDIANA

       Jennifer Turkette,                                               Court of Appeals Case No.
                                                                        20A-CR-87
       Appellant-Defendant,

                  v.

       State of Indiana,
       Appellee-Plaintiff.




       Bailey, Judge, concurring.


[18]   I fully concur with the majority view that Turkette failed to show that her ten-

       year aggregate sentence, with one year suspended, is inappropriate. However, I

       write separately to address the focus of footnote five–whether the trial court’s

       findings of aggravators and mitigators provide this court with initial guidance in

       our review–as well as the current split on this Court as to whether, under

       Indiana Appellate Rule 7(B), an appellant must satisfy one or two prongs to

       obtain revision of a sentence as inappropriate.


[19]   As the majority observes, panels of this Court have often cited a pre-Anglemyer 7

       case for the proposition that a trial court’s findings of aggravators and

       mitigators serve as an “initial guide” in our Rule 7(B) review for



       7
           Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.


       Court of Appeals of Indiana | Opinion 20A-CR-87 | July 22, 2020                              Page 13 of 16
       inappropriateness. Indeed, this author has done so. See Custance v. State, 128

       N.E.3d 8, 10 (Ind. Ct. App. 2019) (“We assess the trial court’s recognition or

       non-recognition of aggravators and mitigators as an initial guide to determining

       whether the sentence imposed was inappropriate” (quoting Gibson v. State, 856

       N.E.2d 142, 147 (Ind. Ct. App. 2006)). Although such nomenclature has been

       frequent, I would now be inclined to reject it, because it serves as a shorthand

       phrase suggesting that we are directly reviewing the trial court’s work. We are

       not.


[20]   In Anglemyer, the Court summarized the sentencing review framework:


               The imposition of sentence and the review of sentences on appeal
               should proceed as follows:


               1. The trial court must enter a statement including reasonably
               detailed reasons or circumstances for imposing a particular
               sentence.


               2. The reasons given, and the omission of reasons arguably
               supported by the record, are reviewable on appeal for abuse of
               discretion.


               3. The relative weight or value assignable to reasons properly
               found or those which should have been found is not subject to
               review for abuse.


               4. Appellate review of the merits of a sentence may be sought on
               the grounds outlined in Appellate Rule 7(B).




       Court of Appeals of Indiana | Opinion 20A-CR-87 | July 22, 2020          Page 14 of 16
       868 N.E.2d at 491. The language employed by our Supreme Court makes plain

       that we are “reviewing the merits of a sentence” and not the comprehensiveness

       of the sentencing statement, which need only be “reasonably detailed.” See id.

       In short, although we give “due consideration” to the trial court’s decision,

       App. R. 7(B), we are not conducting a line-item review of the articulated

       aggravators and mitigators. Because the “initial guidance” language might be

       read to suggest that we consider the trial court’s sentencing statement as a

       pronouncement of findings and conclusions, perhaps in some manner

       constraining our 7(B) review akin to a search for clear error, I agree that we are

       not well served by continuing to repeat it.


[21]   The focus of our 7(B) review is succinctly defined: “The 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.” But within this Court there

       exists a split of opinion as to whether sentence revision may be obtained only

       upon showing inappropriateness under both prongs. In Stephenson v. State, 29

       N.E.3d 111, 122 (Ind. 2015), our Indiana Supreme Court offered the following

       guidance: “Such deference [to the trial court judgment] should prevail unless

       overcome by compelling evidence portraying in a positive light the nature of the

       offense (such as accompanied by restraint, regard, and lack of brutality) and the

       defendant’s character (such as substantial virtuous traits or persistent examples

       of good character).”




       Court of Appeals of Indiana | Opinion 20A-CR-87 | July 22, 2020           Page 15 of 16
[22]   Some judges construe the Court’s use of the word “and” in the governing Rule

       and in caselaw to mean that a successful appellant must identify compelling

       positivity related to both the nature of the offense and to the appellant’s

       character. See Landske v. State, WL 2479704 (Ind. Ct. App. 2020). Other judges

       are persuaded that an appellant is not required to independently show revision

       is warranted with reference to each prong, because the role of this Court is to

       “ultimately balance” what is known of the nature of the offense and the

       character of the offender. Connor v. State, 58 N.E.3d 215, 218 (Ind. Ct. App.

       2016). I, like the majority here, view this ultimate balancing as our role in 7(B)

       review. Although we must consider the evidence relative to each prong, the

       appellant need not necessarily prove inappropriateness as to each prong.

       Indeed, the statutory definition of certain offenses (such as simple possession)

       may not allow for portrayal of the offense in a positive light. That said, we

       await and invite further guidance from our Supreme Court.




       Court of Appeals of Indiana | Opinion 20A-CR-87 | July 22, 2020          Page 16 of 16
