                                                                FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                              Jan 25 2013, 9:10 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                         CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
                                                                          tax court




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

MATTHEW K. HAGENBUSH                               GREGORY F. ZOELLER
Lawrenceburg, Indiana                              Attorney General of Indiana

                                                   IAN McLEAN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DALE D. ENGLE,                                     )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 58A04-1205-CR-244
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                        APPEAL FROM THE OHIO CIRCUIT COURT
                          The Honorable James D. Humphrey, Judge
                               Cause No. 58C01-0905-FB-8


                                        January 25, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
          Dale D. Engle appeals his twelve-year sentence for Class B felony dealing in a

controlled substance.1 Engle alleges his sentence is inappropriate in light of his character and

offense. We affirm.

                            FACTS AND PROCEDURAL HISTORY

          The State charged Engle with three counts of Class B felony dealing in a controlled

substance and two counts of Class B felony conspiracy to commit dealing in a controlled

substance.2 Engle pled guilty to one count of Class B felony dealing in a controlled

substance, based on his selling sixty-one tablets of hydrocodone to an undercover police

officer for five dollars per tablet on February 2, 2009. In exchange, the State dismissed the

remaining charges under this cause number, which alleged Engle sold hydrocodone tablets to

the same officer on two other occasions, and pending charges under another cause number

alleging other drug crimes. The plea agreement left sentencing to the discretion of the trial

court.

          The court held a sentencing hearing at which Engle testified and the State offered

numerous witnesses and exhibits. The court sentenced Engle in an order that contained the

following findings and conclusions:

          In considering the sentence to be imposed, the Court finds the following
          aggravating factors:
          1.    The Court considers the nature and circumstances of the crime to be an
                aggravating factor. The Court finds that the evidence presented
                indicates that the Defendant was a substantial distributor of illegal
                drugs in the community. The Court considers not only evidence of the
                particular transaction involved in this charge, but also evidence that Mr.

1
    Ind. Code § 35-48-4-2(a)(1)(C); Ind. Code § 35-41-2-4.
2
    Ind. Code § 35-48-4-2(a)(1)(C); Ind. Code § 35-41-5-2.
                                                     2
     Engle was involved in other dealing activity. The Court considers
     statements made to undercover Officer Nicholas Beetz and the
     confidential informant in which Defendant Engle indicated that he sold
     hundreds of pills at a time to some people and that he also dealt in
     pounds of marijuana. The Court also considers that upon execution of
     the search warrant at Mr. Engle’s residence, approximately fifty (50)
     hydrocodone pills were found in his bedroom. The Court also
     considers the large number of pills involved in the drug transactions
     presented in this case, to-wit: which included sixty (60) hydrocodone
     tablets on February 2nd, 2009, an additional eighty (80) hydrocodone
     tablets on February 12, 2009, and an additional sixty (60) hydrocodone
     tablets purchased on March 3, 2009. Although Defendant has not
     entered a plea to each separate offense, the Court considers all this
     evidence as to the extent of Defendant’s dealing activity and danger to
     the community (See State’s Exhibit “7”). The Court also considers
     Defendant’s attitude expressed in his recorded statements that he knows
     people are “crazy for pills”; Defendant shows that he is aware of the
     harm he is causing and shows a lack of concern.
2.   The Court also considers the Defendant’s dishonesty with the Court
     regarding his testimony in the sentencing hearing. Defendant testified
     that all of the pills which he sold came from his business partner’s
     medicine cabinet. The Court finds that this testimony is not credible
     considering the evidence of the number of transactions Defendant
     conducted. The Court also finds that the amount of pills involved in the
     transactions and Defendant’s own statements about this level of dealing
     to the under-cover officer are inconsistent with his testimony. In
     addition, the Court considers that Defendant offered no legitimate
     explanation as to how the proposed dealing changed from a transaction
     for marijuana to pills. Defendant’s testimony regarding the source of
     the pills is inconsistent with the variety of pills sold and found in his
     possession. Defendant also told the under-cover officer that he could
     get any amount of pills that he wished to purchase. Again, the
     Defendant stated that he sold hundreds of pills and sold pounds of
     marijuana. The Court finds that Defendant was being dishonest with
     the Court at the sentencing hearing and that this dishonesty indicates a
     lack of remorse for his actions and his disrespect for the law and the
     authority of the Court.
3.   The Court finds that due to the number of pills involved, that Defendant
     may have been receiving his supply of pills from pharmacy thefts. The
     Court, however, finds that that evidence is insufficient to allow the
     Court to draw this conclusion for purposes of this hearing. The Court
     also finds that where Defendant was receiving his supply is less
                                      3
                 important than the significant level of his dealing activity.

        The Court also considers possible mitigating circumstances:

        1.       The Court considers that Defendant does not have a significant criminal
                 or juvenile history as a mitigating factor and provides some weight.
                 The Court also considers this finding in the context of other illegal
                 activity cited herein.
         2.      The Court has also considered Defendant’s medical condition as a
                 possible mitigating factor and provides some weight. However, the
                 Court has allowed considerable time to allow the Defendant to have his
                 medical condition resolved prior to sentencing and pronouncement of
                 sentence.
        3.       The Court considers the fact that Defendant has entered a plea of guilty
                 as a mitigating circumstance and provides some weight. The Court
                 does not place significant weight on the guilty plea, in that, pursuant to
                 the plea agreement, charges are dismissed against Defendant in Cause
                 No. 15D02-0905-FB-003, Count I, Dealing in a Schedule I Controlled
                 Substance, 35-38-4-2, a Class A Felony; Count II, Conspiracy to
                 Commit dealing Methamphetamine, a Class B Felony; and that, also,
                 remaining counts in this cause of action were dismissed including, two
                 (2) additional allegations of Dealing in a Controlled Substance, Class B
                 Felony under Counts III and V.

               The Court has considered the evidence and finds no other possible
        mitigating circumstances exist.
               The Court considers the balance between aggravating and mitigating
        factors to be that aggravating factors outweigh mitigating factors.

(Appellant’s App. at 154-7.) Based thereon, the court pronounced a twelve-year sentence,

with no time suspended.

                                  DISCUSSION AND DECISION

        Engle alleges his sentence is inappropriate based on his character and offense.3 We


3
  The State also addresses why the trial court did not abuse its discretion when entering Engle’s sentence.
Although the State correctly asserts a defendant should not co-mingle an argument alleging abuse of discretion
in sentencing with an argument under Appellate Rule 7(B), see, e.g., Anglemyer v. State, 868 N.E.2d 482, 490
(Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007), we disagree with the State’s assertion that Engle’s
                                                      4
may revise a sentence if it is inappropriate in light of the nature of the offense and the

character of the offender. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008) (citing

Ind. Appellate Rule 7(B)). We consider not only the aggravators and mitigators found by the

trial court, but also any other facts appearing in the record. Roney v. State, 872 N.E.2d 192,

206 (Ind. Ct. App. 2007), trans. denied. The appellant bears the burden of demonstrating his

sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

        When considering the nature of the offense, the advisory sentence is the starting point

to determine the appropriateness of a sentence. Anglemyer v. State, 868 N.E.2d 482, 494

(Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). The advisory sentence for a

Class B felony is ten years, with a possible range of six to twenty years. Ind. Code § 35-50-

2-5. Engle received a twelve-year sentence, and he claims that is inappropriate because the

evidence does not demonstrate he is a “substantial dealer.” (Appellant’s Br. at 6.) Engle

acknowledges evidence he sold, on three separate occasions, sixty, eighty, and sixty tablets of

hydrocodone; he had fifty additional pills in his bedroom when police searched it; and he

bragged to undercover officers that he sold pounds of marijuana.4 The statute defining

Engle’s crime did not require a minimum amount of hydrocodone, see Ind. Code § 35-48-4-

2(a)(1)(C), so sale of a single tablet would permit a conviction. See Harkrader v. State, 553


Brief raises such issue. If Engle, in fact, intended to raise such issue, we hold it is waived for failure to present
cogent argument as required by Indiana Appellate Rule 46(A)(8)(a).
4
  Engle asserts the court erred by accepting his “mere sales puffery as truth.” (Appellant’s Br. at 6.) As a trial
court is entitled to assess the credibility of a witness, we decline to find error in the court’s decision to believe
certain of Engle’s statements over others. See Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (“We do not
reweigh the evidence or judge the credibility of witnesses. . . . These evaluations are for the trier of fact, not
appellate courts.”).

                                                         5
N.E.2d 1231, 1233 (Ind. Ct. App. 1990) (upholding dealing conviction based on two capsules

of schedule II substance), trans. denied. Thus, regardless whether illegal possession of 250

hydrocodone tablets, and sale of 200 thereof, was “substantial” dealing, and we are unwilling

to find a sentence two years greater than the advisory sentence inappropriate for his crime.

        As for Engle’s character, one relevant fact is a defendant’s criminal history.

Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance of a

criminal history in assessing a defendant’s character varies based on the gravity, nature, and

number of prior offenses in relation to the current offense. Id. Engle’s criminal history

consists of three misdemeanor convictions – battery of his wife, intimidation, and criminal

mischief – in 2000. Although Engle correctly notes he successfully completed probation for

those crimes, those three convictions did not dissuade Engle from committing additional

crimes.

        The court also found Engle’s “dishonesty indicates a lack of remorse for his actions

and his disrespect for the law and the authority of the court.”5 (App. at 156.) Dishonesty

with the court, along with lack of respect for the law and legal system, are not character traits

that suggest a twelve-year sentence is inappropriate.

        Because Engle has not demonstrated a twelve-year sentence is inappropriate for his

character and crime, we affirm.




5
 The language of the court’s finding disposes of Engle’s assertion that the court found he lacked remorse
based solely on his comment about how people react over prescription pills. (See Appellant’s Br. at 6.)
                                                   6
      Affirmed.

ROBB, C.J., and PYLE, J., concur.




                                    7
