MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Nov 20 2018, 8:34 am
court except for the purpose of establishing                             CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
estoppel, or the law of the case.                                         and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jennifer A. Joas                                        Curtis T. Hill, Jr.
Madison, Indiana                                        Attorney General of Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Edward C. Sizemore,                                     November 20, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1707
        v.                                              Appeal from the Ripley Circuit
                                                        Court
State of Indiana,                                       The Honorable Ryan J. King,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        69C01-1709-F4-14



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1707 | November 20, 2018            Page 1 of 5
[1]   Edward Sizemore appeals the sentence imposed by the trial court after he

      pleaded guilty to Level 4 Felony Dealing in Methamphetamine and Level 6

      Felony Possession of a Hypodermic Needle. Sizemore argues that the sentence

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

      that the sentence is not inappropriate, we affirm.


                                                    Facts
[2]   On September 7, 2017, police officers went to Sizemore’s residence to serve an

      arrest warrant on another individual. When the officers arrived, the other

      individual fled on foot. Sizemore allowed officers inside of his house, where

      the officers saw a digital scale with powder residue in plain view. After the

      officers advised Sizemore of his rights, Sizemore admitted that he was a

      methamphetamine dealer and user, explaining that he sold approximately seven

      grams of methamphetamine every three to five days. A gram of

      methamphetamine generally sold for $60 to $100, meaning that Sizemore was

      earning $420 to $700 every three to five days. Officers also found two loaded

      handguns, twenty-eight hypodermic needles, other digital scales, and plastic

      bags containing powdered substances.


[3]   On September 11, 2017, the State charged Sizemore with Level 4 felony dealing

      in methamphetamine, Level 6 felony possession of a hypodermic needle, Level

      6 felony possession of methamphetamine, and Level 6 felony maintaining a

      common nuisance. Sizemore agreed to plead guilty to the dealing in

      methamphetamine and possession of a hypodermic needle charges in exchange


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1707 | November 20, 2018   Page 2 of 5
      for the dismissal of the other charges. On May 3, 2018, the trial court imposed

      a ten-year sentence, with two years suspended to probation, for the dealing

      conviction, to be served concurrently with a two-year sentence for the

      possession of a hypodermic needle conviction. Sizemore now appeals.


                                   Discussion and Decision
[4]   Sizemore’s sole argument on appeal is that the sentence imposed by the trial

      court is inappropriate in light of the nature of the offenses and his character

      pursuant to Indiana Appellate Rule 7(B). In considering an argument under

      Rule 7(B), we must “conduct [this] review with substantial deference and give

      ‘due consideration’ to the trial court’s decision—since the ‘principal role of

      [our] review is to attempt to leaven the outliers,’ and not to achieve a perceived

      ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)

      (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal

      citations omitted).


[5]   Sizemore was convicted of one Level 4 felony, for which he faced a term of two

      to twelve years imprisonment. Ind. Code § 35-50-2-5.5. The trial court

      imposed a ten-year term, which is above the advisory six-year term but less than

      the maximum twelve-year term. Sizemore was also convicted of one Level 6

      felony, for which he faced a term of six months to two and one-half years, with

      an advisory term of one year. I.C. § 35-50-2-7(b). The trial court imposed a

      two-year term but ordered that it be served concurrently with the ten-year

      sentence, for an aggregate ten-year term.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1707 | November 20, 2018   Page 3 of 5
[6]   With respect to the nature of the offenses, Sizemore admitted that he regularly

      sold seven grams of methamphetamine every three to five days, which far

      exceeds the single occasion required to commit dealing in methamphetamine.

      As the trial court noted, Sizemore is “a methamphetamine dealer, period, and a

      serious one.” Tr. p. 61. Moreover, officers found twenty-eight hypodermic

      syringes in his house, which far exceeds the single one required to commit the

      Level 6 felony offense. We do not find that the nature of the offenses renders

      Sizemore’s sentence inappropriate.


[7]   As for the nature of Sizemore’s character, we note that the evidence shows that

      he was earning close to $700 every three to five days. But notwithstanding that

      income, he was nearly $30,000 in arrears on child support payments. Indeed,

      he had not made a single voluntary child support payment since June 2014.

      The last payment he made was in July 2015, which was garnished from a bond

      he had posted for a failure-to-appear warrant issued as part of his child support

      case.


[8]   Sizemore’s criminal history includes a 1993 conviction for illegal consumption

      of alcohol by a minor, for which he served a term of probation. In January

      1998, he was charged with operating a vehicle while intoxicated, but this charge

      was dismissed due to a deferral agreement. In November 2007, he entered into

      a deferral agreement for a charge of misdemeanor battery. And at the time he

      was sentenced in the present case, he was facing a charge of battery resulting in

      bodily injury. While Sizemore’s criminal history is not the worst of the worst, it

      shows that despite first, second, and third chances afforded to him by the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1707 | November 20, 2018   Page 4 of 5
       criminal justice system to reform his behavior, he is either unable or unwilling

       to do so. In light of his child support arrearage and criminal history, we do not

       find that the nature of Sizemore’s character renders the sentence inappropriate.


[9]    Sizemore also emphasizes the fact that he pleaded guilty, arguing that his guilty

       plea warrants a reduced sentence. It is apparent from the record, however, that

       his guilty plea was largely pragmatic rather than a genuine show of remorse,

       given that the evidence of his guilt was overwhelming and the State dismissed

       two felony charges in exchange for the guilty plea. In light of these factors, we

       do not find that the guilty plea renders the sentence inappropriate.


[10]   In sum, the aggregate ten-year sentence imposed by the trial court is not

       inappropriate in light of the nature of the offenses and Sizemore’s character.


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


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1707 | November 20, 2018   Page 5 of 5
