      MEMORANDUM DECISION
                                                                          Jun 30 2015, 8:00 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be 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
      Elizabeth A. Bellin                                      Gregory F. Zoeller
      Elkhart, Indiana                                         Attorney General of Indiana

                                                               Kelly A. Miklos
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Duane R. Tackett,                                        June 30, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               20A03-1410-CR-368
              v.                                               Appeal from the Elkhart Superior
                                                               Court
      State of Indiana,                                        The Honorable George W.
      Appellee-Plaintiff.                                      Biddlecome, Judge

                                                               Cause No. 20D03-1403-FB-32




      Najam, Judge.


                                         Statement of the Case
[1]   Duane R. Tackett appeals his convictions for two counts of dealing in

      methamphetamine, both as Class B felonies. Tackett presents one issue for our


      Court of Appeals of Indiana | Memorandum Decision 20A03-1410-CR-368| June 30, 2015         Page 1 of 8
      review, namely, whether his sentence is inappropriate in light of the nature of

      his offenses and his character.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In January 2014, a cooperating source (“the CS”) approached the Goshen

      Police Department’s Interdiction and Covert Enforcement Unit (“ICE”)

      regarding Tackett’s girlfriend, Zabrina Brown. Brown had contacted the CS in

      hopes that she could sell methamphetamine to the CS, information that the CS

      relayed to ICE. In response, several undercover officers with ICE—Undercover

      Officer 120 (“UC 120”), Undercover Officer 151 (“UC 151”), and Undercover

      Officer 254 (“UC 254”)—arranged a controlled buy of methamphetamine

      between the CS and Brown to occur on January 27 at a gas station in Goshen.


[4]   On January 27, UC 254 drove the CS to the gas station. UC 120 and UC 151

      monitored the transaction from a second vehicle, parked at a nearby vantage

      point. When the CS and UC 254 arrived at the gas station, the CS identified

      Brown as she exited the gas station. Brown crossed the parking lot and entered

      the passenger side of a blue BMW 525i that belonged to Tackett. At the time,

      Tackett was outside pumping gas into the BMW, and he waved the CS over to

      his vehicle. The CS then approached Tackett’s vehicle and entered on the rear

      passenger side. When the CS entered the BMW, Tackett reentered the vehicle.

      At this point, the CS purchased two grams of methamphetamine for $200 from



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      Tackett and Brown. As a result of Tackett’s involvement in the controlled buy,

      he also became a target in ICE’s investigation of Brown.


[5]   Two days later, on January 29, the same ICE undercover officers arranged a

      second controlled buy of methamphetamine between the CS and Brown to

      occur at a different gas station in Goshen. For the second time, UC 254 drove

      the CS to the gas station, while UC 120 and UC 151 conducted surveillance

      from another vehicle parked nearby. When the CS and UC 254 arrived at the

      gas station, they observed Tackett’s blue BMW already parked there. When

      UC 254’s vehicle came to a stop, Brown exited the BMW’s driver side and

      walked to UC 254’s passenger window. The CS then exchanged $100 for two

      grams of methamphetamine, a gram each contained in two separate plastic

      bags. Believing the transaction to be over, the CS and UC 254 exited the gas

      station’s parking lot and turned onto an adjacent road. Shortly thereafter,

      Tackett ran across the parking lot and along the edge of the road, yelling to UC

      254 and the CS, “You owe me a hundred dollars.” Tr. at 136.


[6]   UC 254 acknowledged Tackett and pulled back into the gas station’s parking

      lot. Brown indicated that she had mistakenly provided two grams of

      methamphetamine, an amount worth $200, for which the CS had paid only

      $100. Thus, the CS returned one gram of the methamphetamine, and the two

      again left the gas station.


[7]   On March 28, the State charged Tackett with two counts of dealing in

      methamphetamine, both as Class B felonies, which corresponded to the sales


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that occurred on January 27 and 29. The trial court held Tackett’s jury trial on

July 21 and 22, at which Brown testified against Tackett. 1 At the conclusion of

his trial, the jury convicted Tackett on both counts. After a sentencing hearing,

held on September 18, the trial court sentenced Tackett to an aggregate term of,

sixteen years executed in the Indiana Department of Correction. In support of

the sentence the court imposed, it stated:


          In arriving at that sentence, the Court notes that the Defendant
          has four prior felony convictions, one previous misdemeanor
          conviction. The Court disputes the argument that the Defendant
          performed well in the community corrections facility setting.
          The Court notes that he violated the terms of his placement in a
          community corrections setting with respect to his 2005 sentences
          for Possession of Marijuana[,] as a Class D felony[,] and
          Maintaining a Common Nuisance[,] as a Class D Felony.

          The Court further notes that the Indiana RISK Assessment
          System deems the Defendant a high risk to re-offend.[2] If the
          Defendant’s incarceration places a hardship on his mother, that
          was the Defendant’s choice . . . . So . . . if his mother suffers a
          hardship, he has no one to blame but himself.

          He is clearly addicted to illicit drugs; however, the court notes
          that he was given the opportunity to address that addiction while
          at the Indiana Department of Correction facility. He either failed
          or refused to do so in a responsible manner.




1
  Brown entered an open plea to three counts of dealing in methamphetamine, all as Class B felonies. In her
plea agreement, Brown agreed to testify against Tackett. Ultimately, Brown received concurrent sentences of
twelve years in the Indiana Department of Correction, with six years suspended to probation.
2
    As Tackett correctly points out on appeal, he was actually deemed a moderate risk to reoffend.



Court of Appeals of Indiana | Memorandum Decision 20A03-1410-CR-368| June 30, 2015                   Page 4 of 8
              I do not agree with counsel’s assessment that Miss Brown is the
              more culpable of these two people. . . . He was clearly involved
              in this sale from the testimony of the officers, not Miss Brown.
              When the second transaction occurred, apparently the
              undercover officer didn’t pay for all of the drugs that were sold to
              him. Who tried to collect the extra money? It wasn’t Miss
              Brown. It was Mr. Tackett.


      Tr. at 251-53. This appeal ensued.


                                     Discussion and Decision
[8]   Tackett contends that his sentence is inappropriate in light of the nature of his

      offenses and his character. Article 7, Sections 4 and 6 of the Indiana

      Constitution “authorize[] independent appellate review and revision of a

      sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind.

      Ct. App. 2007) (alteration in original). This appellate authority is implemented

      through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule

      7(B) requires the appellant to demonstrate that his sentence is inappropriate in

      light of the nature of his offenses and his character. Ind. Appellate Rule 7(B);

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

      Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a

      defendant must persuade the appellate court that his or her sentence has met

      th[e] inappropriateness standard of review.” Roush, 875 N.E.2d at 812

      (alteration original).


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[9]    Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224

       (Ind. 2008). The principal role of appellate review is to attempt to “leaven the

       outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

       end of the day turns on “our sense of the culpability of the defendant, the

       severity of the crime, the damage done to others, and myriad other facts that

       come to light in a given case.” Id. at 1224.


[10]   Specifically, Tackett argues that his sentence is inappropriate because (1)

       Brown, whom Tackett characterizes as being more culpable than he is, received

       a lesser sentence than he received; (2) he suffers from schizophrenia; (3) he has

       a substance abuse problem; and (4) he was actually deemed a moderate, and

       not a high, risk to reoffend under the Indiana Risk Assessment standards. We

       cannot, however, state that Tackett’s sentence is inappropriate.


[11]   Tackett’s first contention relates to the nature of his offenses, in support of

       which he points us to Cardwell. Particularly, Tackett relies on Cardwell in an

       effort to portray his own offense as an outlier. He compares his executed

       sentence of sixteen years to Brown’s executed sentence of six years and argues,

       as he did to the trial court, that he “was the ‘less culpable’ participant [in their

       crimes], as [he] did not actively participate in either of the controlled buys for

       which he was charged and found guilty.” Appellant’s Br. at 9. But the trial

       court expressly rejected this argument, and we cannot say that the court erred

       when it did so. Indeed, at the January 27 sale of methamphetamine, Tackett

       Court of Appeals of Indiana | Memorandum Decision 20A03-1410-CR-368| June 30, 2015   Page 6 of 8
       waved to the CS, and the sale did did not occur until Tackett reentered his

       BMW. And as noted by the trial court, when the CS neglected to pay the full

       price for the methamphetamine purchased on January 29, Tackett, not Brown,

       attempted to “collect the extra money.” Tr. at 253.


[12]   Further, Cardwell is inapposite here. First, Cardwell held that the trial court was

       not required to compare two defendants’ sentences to each other. See 895

       N.E.2d at 1226. Second, Tackett’s situation is unlike that present in Cardwell.

       There, Cardwell received a thirty-four year sentence, and his co-defendant

       received only an eighteen-month sentence, despite the fact that Cardwell was

       either equally “or even less culpable.” Id. Here, Brown’s executed term is ten

       years less than Tackett’s sentence, but Brown’s entire sentence is only four years

       less than Tackett’s sentence, which is much different from the disparity present

       in Cardwell. Moreover, Tackett ignores the fact that Brown pleaded guilty and

       he did not. Therefore, Tackett’s sentence is not an outlier. The nature of his

       offenses do not support a revision of his sentence, and we affirm in this respect.


[13]   Tackett’s next three contentions—his schizophrenia, his substance abuse, and

       his risk assessment—all relate to his character. Although, as noted above, the

       trial court did err when it stated that Tackett was deemed a high risk to

       reoffend, nevertheless we cannot say that Tackett’s character requires revision

       of his sentence. As the trial court noted, Tackett has four prior felony

       convictions, several of which are drug related, and one prior misdemeanor

       conviction. Further, Tackett previously violated the terms of his community



       Court of Appeals of Indiana | Memorandum Decision 20A03-1410-CR-368| June 30, 2015   Page 7 of 8
       corrections placement. Thus, Tackett’s sentence also is not inappropriate in

       light of his character.


[14]   Affirmed.




       Baker, J., and Friedlander, J., concur.




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