MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         Nov 15 2016, 7:09 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
Stacy R. Uliana                                         Gregory F. Zoeller
Bargersville, Indiana                                   Attorney General of Indiana
                                                        Larry D. Allen
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Shawn Towell,                                           November 15, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        01A02-1603-CR-449
        v.                                              Appeal from the Adams Circuit
                                                        Court
State of Indiana,                                       The Honorable Chad Kukelhan,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        01C01-1305-FA-4



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 01A02-1603-CR-449 | November 15, 2016    Page 1 of 17
                                            Case Summary
[1]   Shawn Towell (“Towell”) was convicted of ten criminal offenses, and now

      challenges five of those: his convictions for two counts of Dealing in

      Methamphetamine, as Class A felonies,1 and one count each of Possession of

      Chemical Reagents or Precursors, as a Class C felony,2 Possession of

      Methamphetamine, as a Class B felony,3 and Possession of a Controlled

      Substance, as a Class C felony.4 He also challenges his aggregate forty-year

      sentence. We affirm eight convictions: one count each of Dealing in

      Methamphetamine, Possession of Chemical Reagents or Precursors, Possession

      of a Controlled Substance, Possession of Paraphernalia, Maintaining a

      Common Nuisance, Taking a Minor to a Nuisance, Battery, and Possession of

      Marijuana.5 We affirm the aggregate sentence. We remand to the trial court

      with instructions to vacate the second conviction for Dealing in

      Methamphetamine and the conviction for Possession of Methamphetamine.



                                                     Issues


      1
          Ind. Code § 35-48-4-1.1.
      2
          I.C. § 35-48-4-14.5.
      3
          I.C. § 35-48-4-6.1.
      4
          I.C. § 35-48-4-7.
      5
       Towell does not challenge his convictions for Possession of Paraphernalia, a Class A misdemeanor, I.C. §
      35-48-4-8.3., Maintaining a Common Nuisance, as a Class D felony, I.C. § 35-48-4-13, Taking a Minor to a
      Nuisance, a Class A misdemeanor, I.C. § 35-48-4-13.3, Battery, as a Class B misdemeanor, I.C. § 35-42-2-1,
      or Possession of Marijuana, as a Class A misdemeanor, I.C. § 35-48-4-11.

      Court of Appeals of Indiana | Memorandum Decision 01A02-1603-CR-449 | November 15, 2016        Page 2 of 17
[2]   Towell presents four issues for review:


              I.      Whether Towell was subjected to double jeopardy when
                      he was convicted of Possession of Methamphetamine,
                      Possession of Chemical Reagents or Precursors, and two
                      counts of Dealing in Methamphetamine;


              II.     Whether the statutory definition of youth program center
                      is unconstitutionally vague such that the enhancement of
                      Towell’s drug-related offenses was fundamental error;


              III.    Whether the trial court abused its sentencing discretion by
                      recognizing an improper aggravator; and


              IV.     Whether the aggregate forty-year sentence is
                      inappropriate.


                            Facts and Procedural History
[3]   In May of 2013, Towell and Jayla Currie (“Currie”) were living in a garage

      attached to the residence of Angela Teeter (“Teeter”), Currie’s mother. Towell

      and Currie had obtained guardianship of Towell’s three-year-old niece, S.T.,

      and S.T. was also staying in the garage.


[4]   On May 6, 2013, Towell’s sister, Linda Towell (“Linda”) came to the garage

      and tried to take S.T. An argument ensued, and Towell pushed Linda to the

      ground. Linda summoned police assistance.


[5]   When City of Berne police officers arrived, they obtained permission from

      Teeter to search the garage. During the initial sweep of the garage, Detective


      Court of Appeals of Indiana | Memorandum Decision 01A02-1603-CR-449 | November 15, 2016   Page 3 of 17
      James Newbold and Lieutenant Dean Amstutz made observations that caused

      them to seek and obtain a search warrant. Ultimately, the Indiana State Police

      executed a warrant and a search of the premises yielded drug paraphernalia,

      HCL generators, organic solvents, lithium battery casings, a coffee filter with

      methamphetamine residue, a gallon of acetone, drain cleaner, digital scales,

      Xanax, marijuana, and pseudoephedrine.


[6]   Towell was charged with ten criminal counts and brought to trial before a jury.

      On January 7, 2016, the jury convicted Towell as charged. On February 2,

      2016, the trial court imposed a sentence of forty years each for two counts of

      Dealing in Methamphetamine, one year for Possession of Paraphernalia, two

      years for Maintaining a Common Nuisance, one year for Taking a Minor to a

      Nuisance, six years for Possession of Chemical Reagents or Precursors, 180

      days for Battery, one year for Possession of Marijuana, ten years for Possession

      of Methamphetamine, and six years for Possession of a Controlled Substance.

      All sentences were to be served concurrently, providing for an aggregate

      sentence of forty years. This appeal ensued.



                                Discussion and Decision
                                          Double Jeopardy
[7]   Towell contends that his convictions for Possession of Methamphetamine,

      Possession of Precursors, and two counts of Dealing in Methamphetamine

      violate the Double Jeopardy Clause of the Indiana Constitution. Article 1,

      Section 14 provides that “[n]o person shall be put in jeopardy twice for the
      Court of Appeals of Indiana | Memorandum Decision 01A02-1603-CR-449 | November 15, 2016   Page 4 of 17
       same offense.” Determining whether multiple convictions violate the

       prohibition against double jeopardy is a question of law that this Court reviews

       de novo. Sloan v. State, 947 N.E.2d 917, 920 (Ind. 2011).


[8]    In Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999), our Supreme Court

       concluded that two or more offenses are the same offense if, with respect to

       either the statutory elements of the challenged crimes or the actual evidence

       used to obtain convictions, the essential elements of one challenged offense also

       establish the essential elements of another challenged offense. According to

       Towell, his convictions violate the actual evidence test.


[9]    Under the actual evidence test, we examine the actual evidence presented at

       trial in order to determine whether each challenged offense was established by

       separate and distinct facts. Id. at 53. To find a double-jeopardy violation under

       this test, we must conclude that there is “a reasonable possibility that the

       evidentiary facts used by the fact-finder to establish the essential elements of

       one offense may also have been used to establish the essential elements of a

       second challenged offense.” Id. There is no double-jeopardy violation under

       the actual evidence test when the evidentiary facts establishing the essential

       elements of one offense also establish only one or even several of the essential

       elements of a second offense. Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002).


[10]   A person commits Dealing in Methamphetamine by knowingly or intentionally

       manufacturing methamphetamine or possessing methamphetamine with intent

       to deliver it. I.C. § 35-48-4-1.1. In Count 1, the State alleged in pertinent part:


       Court of Appeals of Indiana | Memorandum Decision 01A02-1603-CR-449 | November 15, 2016   Page 5 of 17
       “on or about May 6, 2013 in Adams County, State of Indiana, Shawn C.

       Towell did possess, with the intent to manufacture, methamphetamine, pure or

       adulterated, within one thousand feet of a youth program center, to-wit: the

       First Mennonite Church[.]” (App. at 53.) Count 2 alleged that Towell “on or

       about May 6, 2013 … did knowingly or intentionally manufacture

       methamphetamine, pure or adulterated, within one thousand (1000) feet of a

       youth program center, to-wit: the First Mennonite Church[.]” (App. at 53.) In

       Count 6, the State alleged that Towell possessed, with intent to manufacture

       methamphetamine, two or more of: organic solvents (Coleman fuel and

       acetone), sodium hydroxide (lye), ammonium sulfate (fertilizer) and sulfuric

       acid (liquid fire drain cleaner), and possessed those items within 1000 feet of the

       First Mennonite Church youth program center. In Count 9, the State alleged

       that, on or about May 6, 2013, Towell knowingly or intentionally possessed

       methamphetamine within 1000 feet of the First Mennonite Church youth

       program center.


[11]   Concerning the items recovered in Towell’s garage, the State elicited testimony

       from Detective Newbold, Lieutenant Amstutz, and Indiana State Police

       Trooper Tim Myers. The officers collectively testified to the recovery of items

       indicative of methamphetamine manufacture and consumption: folded foil

       burned black on the bottom, plastic vessels typical of HCL generators, a coffee

       filter with methamphetamine residue, acetone and salt in large quantities, drain

       opener, boxes of pseudoephedrine, camping fuel, lithium battery casings, and

       organic solvents. According to Trooper Myers, it appeared that someone “had


       Court of Appeals of Indiana | Memorandum Decision 01A02-1603-CR-449 | November 15, 2016   Page 6 of 17
       cooked” but he could not “tell if they were getting ready to cook.” (Tr. at 408.)

       Currie testified that she had observed Towell manufacturing

       methamphetamine.


[12]   In closing argument, the prosecutor directed the jury’s attention to Detective

       Myers’ testimony identifying “a laundry list” of precursors. (Tr. at 602.)

       Otherwise, the prosecutor did not specifically describe the evidence suggesting

       separate methamphetamine-related crimes nor did he argue that there were

       distinct events of cooking or possession. Rather, he advised the jury “the date is

       not an element of our offense here today.” (Tr. at 598.) We agree with Towell

       that the manner in which the State presented its case here is akin to that in

       Caron v. State, where a panel of this Court found a reasonable possibility that the

       jury used the same evidence to establish the essential elements of two offenses,

       observing:


               [T]he State’s theory of separate conduct was not presented to the
               jury through the trial court’s instructions or the State’s closing
               argument. The State chose to charge the crimes broadly, and its
               closing argument was no more specific.


       824 N.E2d 745, 753-54 (Ind. Ct. App. 2005).


[13]   However, we cannot agree with Towell that all four convictions likely rested

       upon the same physical evidence, the collective methamphetamine laboratory

       components. There was testimony and physical evidence from which the jury

       could reasonably conclude that at least one batch of methamphetamine had

       been produced. That is, Currie testified that Towell had cooked

       Court of Appeals of Indiana | Memorandum Decision 01A02-1603-CR-449 | November 15, 2016   Page 7 of 17
       methamphetamine and one coffee filter tested by the Indiana State Police Lab

       was found to contain methamphetamine. Additionally, there were precursors

       present in circumstances where the jury could have reasonably concluded that

       future production was intended. Accordingly, we affirm one conviction for

       Dealing in Methamphetamine and the conviction for Possession of Precursors.

       We instruct the trial court on remand to vacate the second conviction for

       Dealing in Methamphetamine and the conviction for Possession of

       Methamphetamine.


                         Definition of Youth Program Center
[14]   Towell’s drug-related offenses (other than Possession of Marijuana) were

       enhanced because of their commission within 1000 feet of a youth program

       center. See I.C. § 35-31.5-2-357 (defining “youth program center” as a “building

       or structure that on a regular basis provides recreational, vocational, academic,

       social or other programs or services for persons less than eighteen (18) years of

       age” and “the real property on which the building or structure is located.”) In

       each Information for an enhanced offense, the State alleged that Towell’s

       conduct took place within 1000 feet of the First Mennonite Church (“the

       Church”). Towell asks that we vacate the enhanced penalties because they rest

       upon an unconstitutionally vague definition of “youth program center.”


[15]   According to Indiana Code Section 35-34-1-6(a)(3), “[a]n indictment or

       information is defective when … the statute defining the offense charged is

       unconstitutional or otherwise invalid.” Indiana Code Section 35-34-1-4


       Court of Appeals of Indiana | Memorandum Decision 01A02-1603-CR-449 | November 15, 2016   Page 8 of 17
       provides that an indictment or information may be dismissed upon motion from

       the defendant. Generally, the failure to file a proper motion to dismiss a

       charging information raising a constitutional challenge waives the issue on

       appeal. Pittman v. State, 45 N.E.3d 805, 815 (Ind. Ct. App. 2015). An appellant

       who has failed to file such a motion to dismiss must demonstrate fundamental

       error in order to obtain relief. Hayden v. State, 19 N.E.3d 831, 840 (Ind. Ct.

       App. 2014), trans. denied. Fundamental error is error so prejudicial to the rights

       of the accused that he or she could not have received a fair trial. Id. at 841.


[16]   Towell concedes that he filed no motion to dismiss and must demonstrate

       fundamental error. In order to support his assertion that he was denied

       fundamental due process because he was not given reasonable notice of what

       conduct was prohibited, he directs our attention to Whatley v. Zatecky, 833 F.3d

       762, 784 (7th Cir. 2016) (“due process requires that the statute give a person an

       opportunity to conform his conduct to the law, a requirement that applies with

       equal force to the conduct used to enhance a sentence.”)


[17]   Walter Whatley was convicted under a now-repealed Indiana law6 of possessing

       a little more than three grams of cocaine within 1000 feet of a “youth program

       center.” See id. at 765. On direct appeal and in federal habeas corpus

       proceedings, Whatley challenged the Indiana law on grounds that the statutory

       definition of “youth program center” was unconstitutionally vague. See id. In



       6
         I.C. § 35-41-1-29 [repealed July 1, 2012]. The definition of “youth program center” embodied in that
       statute mirrors the definition of I.C. § 35-31.5-2-357 effective July 1, 2013.

       Court of Appeals of Indiana | Memorandum Decision 01A02-1603-CR-449 | November 15, 2016         Page 9 of 17
       the Seventh Circuit Court of Appeals, Whatley appealed the denial of a habeas

       petition and his claim proceeded under 28 U.S.C. § 2254(d)(2):

               An application for a writ of habeas corpus on behalf of a person
               in custody pursuant to the judgment of a State court shall not be
               granted with respect to any claim that was adjudicated on the
               merits in State court proceedings unless the adjudication of the
               claim … resulted in a decision that was based on an unreasonable
               determination of the facts in light of the evidence presented in the
               State court proceeding.


[18]   In particular, Whatley contended that the statute in question was impermissibly

       vague because it defined “youth program center” as a facility with “regular”

       youth programs and “regular” is a word with multiple, inconsistent

       constructions. Whatley, 833 F.3d at 776. The Seventh Circuit agreed with

       Whatley’s contention:


               In sum, a triad of factors convince us that the state courts were
               not simply wrong but unreasonable in applying federal law on
               vagueness in Whatley’s case: (1) the use of the word “regular” in
               the definition of “youth program center” provides no objective
               standard, and thereby fails to place persons of ordinary
               intelligence on notice of the conduct proscribed and allows for
               arbitrary enforcement; (2) defendants are strictly liable for
               violating the terms of this nebulous sentencing enhancement,
               exacerbating the effect of the subjectivity; and (3) the
               consequences of violating this indeterminate strict liability
               provision are extreme: an increase in the sentencing range from
               2-to-8 years to 20-to-50 years’ imprisonment. The Indiana courts
               failed to narrow the statute by adding an intent element, by
               limiting application to the core cases of facilities such as YMCAs
               or Boys and girls Clubs, or by providing any objective standard to
               the meaning of “regular.” There was no “reasonable basis for the

       Court of Appeals of Indiana | Memorandum Decision 01A02-1603-CR-449 | November 15, 2016   Page 10 of 17
               state court to deny relief.” Richter, 562 U.S. at 98, 131 S.Ct. 770.
               As applied to Whatley, the statute delegated to the police, the
               prosecutor and the jury the task of determining what conduct was
               proscribed. No one in Whatley’s position could have known that
               the Robinson Community Church would fall within the
               definition simply because it hosted a handful of children’s events
               each week and otherwise bore no indicia of the children’s
               activities within. We therefore reverse and remand[.]


       Whatley, 833 F.3d at 784.


[19]   Towell urges that we adopt the entirety of the reasoning in Whatley, a case in

       which the habeas petitioner advanced many specific contentions. However,

       Towell has not likewise developed a record as to the circumstances present in

       his case that would support a conclusion that the enhancement was

       unconstitutional as applied to him. Towell filed no motion to dismiss making a

       claim of facial unconstitutionality and notifying the Indiana Attorney General

       to defend the enactment. Likewise, he made no claim that a criminal statute

       was unconstitutional as applied to him or that he lacked notice that the Church

       operated a youth program center. The Church’s Preschool Director, Greta

       Lehman, testified that the Church operated a preschool mornings and

       afternoons on Tuesday and Thursdays. Sixty children attended on those days,

       but on Wednesday “only the older children” attended.” (Tr. at 426.) In light of

       the lack of a constitutional challenge in the trial court, the record of Towell’s

       knowledge is sparse. When asked if he knew where the Church was located,

       Towell responded: “I knew of it, yes.” (Tr. at 541.)                 Whereas the Whatley

       Court could discern that the Robinson Community Church “hosted a handful


       Court of Appeals of Indiana | Memorandum Decision 01A02-1603-CR-449 | November 15, 2016   Page 11 of 17
       of children’s event each week7 and otherwise bore no indicia of the children’s

       activities within,” 833 F.3d at 784, we are not privy to evidence of signage, pre-

       school enrollment advertisements, or other notice that might be present in this

       case.


[20]   It is noteworthy that, in granting Whatley relief, the Court stated: “It is the

       particular language of the Indiana statute that is at issue here, and more

       importantly the unique circumstances of its application to Whatley.” Id. at 782

       (emphasis added). Essentially, Towell wants to piggyback his claim onto

       Whatley’s demonstration of statutory vagueness as applied to Whatley. Towell

       asserts that we should apply persuasive authority to find fundamental error in

       his case although he filed no motion to dismiss and testified that he was aware

       of the Church; and he further urges that we should vacate the enhancements

       because the Seventh Circuit might theoretically do so in the future. According

       to Towell, this would promote judicial economy. However, based upon the

       instant record, we cannot conclude that Towell was denied a fair trial.


                                        Sentencing Discretion
[21]   Upon conviction of a Class A felony, Towell faced a sentencing range of twenty

       years to fifty years, with the advisory sentence being thirty years. I.C. § 35-50-2-

       4. Upon conviction of a Class B felony, he faced a sentencing range of six to




       7
        The Robinson Community Church apparently hosted children’s events for a few hours at a time, a few days
       each week. Whatley, 833 F.3d at 776.

       Court of Appeals of Indiana | Memorandum Decision 01A02-1603-CR-449 | November 15, 2016    Page 12 of 17
       twenty years, with the advisory sentence being ten years. I.C. § 35-50-2-5.

       Upon conviction of a Class C felony, he faced a sentencing range of two years

       to eight years, with the advisory sentence being four years. I.C. § 35-50-2-6.

       Upon conviction of a Class D felony, Towell faced a sentencing range of

       between six months and three years, with the advisory sentence being one and

       one-half years. I.C. § 35-50-2-7. Upon conviction of a Class A misdemeanor,

       he faced a sentence of not more than one year. I.C. § 35-50-2-3. Upon

       conviction of a Class B misdemeanor, he faced a sentence of not more than 180

       days. I.C. § 35-50-3-3. In imposing an aggregate sentence of ten years above

       the advisory sentence for the most serious offense, the trial court referred to

       Towell’s criminal history, violation of bond, likelihood to re-offend, and family

       circumstances.


[22]   Towell argues that the trial court abused its discretion by considering a

       courtroom encounter outside the instant trial and sentencing hearing.

       Specifically, the trial court referenced an earlier parenting time hearing at which

       the trial court had presided. According to Towell, the trial court considered

       Towell’s earlier conduct to be an aggravating circumstance. According to the

       State, the trial court was instead discussing its reasoning to support rejection of

       Towell’s proffered mitigator, undue hardship to his dependent.


[23]   “So long as the sentence is within the statutory range, it is subject to review

       only for abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

       2007), clarified on other grounds, 875 N.E.2d 218 (Ind. 2007). This includes the

       finding of an aggravating circumstance and the omission to find a proffered

       Court of Appeals of Indiana | Memorandum Decision 01A02-1603-CR-449 | November 15, 2016   Page 13 of 17
       mitigating circumstance. Id. at 490-91. When imposing a sentence for a felony,

       the trial court must enter “a sentencing statement that includes a reasonably

       detailed recitation of its reasons for imposing a particular sentence.” Id. at 491.


[24]   The trial court’s reasons must be supported by the record and must not be

       improper as a matter of law. Id. However, a trial court’s sentencing order may

       no longer be challenged as reflecting an improper weighing of sentencing factors.

       Id. A trial court abuses its discretion if its reasons for imposing a particular

       sentence are clearly against the logic and effect of the facts and circumstances

       before the court, or the reasonable, probable, and actual deductions to be drawn

       therefrom. Hollin v. State, 877 N.E.2d 462, 464 (Ind. 2007).


[25]   Here, the trial court made an oral sentencing statement expressing its rationale

       and commingling the discussion of aggravating and mitigating circumstances.

       In relevant part, the trial court stated:


               I had to take [a]way your visitation with your daughter cause you
               came in here high. I know you were high that day. The
               testimony that day from the woman you had the child with was
               that she wanted you to see that child, but you were choosing to
               be a junky instead and that she was at one point, but she is not
               any longer and you questioned me sitting there, questioned me
               for that. You’re a junky. That’s why I kept you away from your
               daughter. You were going to hurt her. Anyway, that’s another
               hearing for another time, Mr. Towell. But anyway when I see
               people here I want to remind everybody that my memory is not
               so short.


       (Tr. at 663.)


       Court of Appeals of Indiana | Memorandum Decision 01A02-1603-CR-449 | November 15, 2016   Page 14 of 17
[26]   It is not readily apparent whether the trial court found the prior conduct to be

       an aggravating circumstance relative to the instant aggregate sentence or was

       explaining why undue hardship was not found. Nonetheless, even if a trial

       court has relied upon an improper factor as an aggravating circumstance, the

       sentence may be upheld so long as other valid aggravating circumstances exist.

       Bacher v. State, 722 N.E.2d 799, 803 (Ind. 2000). Here, other valid aggravators

       exist. Towell had a criminal history, had violated the terms of his release on

       bond, and was facing several new criminal charges. Towell has not

       demonstrated that the trial court abused its sentencing discretion.


                               Inappropriateness of Sentence
[27]   Under Indiana Appellate Rule 7(B), this “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.” In performing our review, we assess “the

       culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other factors that come to light in a given case.” Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of such review is

       to attempt to leaven the outliers. Id. at 1225.


[28]   When considering whether a sentence is inappropriate, we need not be

       “extremely” deferential to a trial court’s sentencing decision, but we accord due

       consideration to that decision, recognizing the unique perspective of the trial

       court. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007).


       Court of Appeals of Indiana | Memorandum Decision 01A02-1603-CR-449 | November 15, 2016   Page 15 of 17
       Accordingly, a defendant ‘“must persuade the appellate court that his or her

       sentence has met th[e] inappropriateness standard of review.”’ Anglemyer, 868

       N.E.2d at 494 (quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).

       We “should focus on the forest – the aggregate sentence – rather than the trees –

       consecutive or concurrent, number of counts, or length of the sentence on any

       individual count.” Cardwell, 895 N.E.2d at 1225.


[29]   As for the nature of Towell’s offenses, there is nothing remarkable in the

       acquisition of the precursors and the amount of methamphetamine seized was

       minimal. However, the potential for harm was great, as Towell’s activities took

       place in a garage where he resided with his girlfriend and a three-year-old child.

       The garage was attached to a residence where two adults and two minors lived.


[30]   As for Towell’s character, he was admittedly a long-term substance abuser. He

       had prior criminal convictions for Forgery, Escape, and Operating While

       Intoxicated. While awaiting trial on the instant charges, he violated his bond

       and was re-arrested. At the time of sentencing, he faced new charges for

       Dealing in Methamphetamine, Resisting Law Enforcement with a deadly

       weapon, and Possession of marijuana, paraphernalia, and methamphetamine

       precursors.


[31]   Having reviewed the matter, we conclude that the trial court did not impose an

       inappropriate sentence under Appellate Rule 7(B), and the sentence does not




       Court of Appeals of Indiana | Memorandum Decision 01A02-1603-CR-449 | November 15, 2016   Page 16 of 17
       warrant appellate revision. Accordingly, we decline to disturb the sentence

       imposed by the trial court.8



                                                   Conclusion
[32]   Towell was subjected to double jeopardy when he was convicted of two counts

       of Dealing in Methamphetamine and one count of Possession of

       Methamphetamine. We remand with instructions to vacate one Dealing in

       Methamphetamine conviction and the conviction for Possession of

       Methamphetamine. Towell has not demonstrated that he was denied a fair

       trial. He has not demonstrated an abuse of sentencing discretion, and his forty-

       year aggregate sentence is not inappropriate.


[33]   Affirmed in part, reversed in part, and remanded with instructions.


       Riley, J., and Barnes, J., concur.




       8
        Towell briefly argues that his sentence is an “outlier” with reference to the reduced penalty for Dealing in
       Methamphetamine after revisions to Indiana’s Criminal Code effective July 1, 2014. However, our Supreme
       Court’s guidance regarding attempts to “leaven the outliers” is with reference to reviewing the nature of the
       offense and the character of the offender with respect to a particular statutory crime. Cardwell, 895 N.E.2d at
       1224. It does not provide a mechanism for comparing one statutory scheme to another.
       We also observe that this Court has declined to take into account lesser penalties of the new criminal code
       when addressing the appropriateness of a sentence for a crime committed under prior law “because of the
       clear, unambiguous language of the savings clause statutes.” Marley v. State, 17 N.E.3d 335, 341 (Ind. Ct.
       App. 2014). See also Schaadt v. State, 30 N.E.3d 1 (Ind. Ct. App. 2015), Ellis v. State, 29 N.E.3d 792, 801 (Ind.
       Ct. App. 2015).

       Court of Appeals of Indiana | Memorandum Decision 01A02-1603-CR-449 | November 15, 2016            Page 17 of 17
