MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                             Apr 24 2019, 9:01 am

court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Leanna Weissmann                                         Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                         Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Bruce L. Thomas,                                         April 24, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2774
        v.                                               Appeal from the Switzerland
                                                         Circuit Court
State of Indiana,                                        The Honorable W. Gregory Coy,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         78C01-1804-F4-164



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2774| April 24, 2019                 Page 1 of 7
                                       Statement of the Case

[1]   Bruce Thomas (“Thomas”) appeals the sentence imposed after he pled guilty to

      Level 5 felony dealing in methamphetamine1 and to being an habitual offender.2

      Thomas argues that his sentence is inappropriate in light of the nature of the

      offense and his character. Concluding that Thomas’ sentence is not

      inappropriate, we affirm his sentence.


[2]   We affirm.


                                                     Issue

                               Whether Thomas’ sentence is inappropriate.


                                                     Facts

[3]   On April 24, 2018, the Switzerland County Sheriff’s Office received a

      complaint from a woman accusing Thomas of selling methamphetamine to her

      husband. Law enforcement questioned the husband, and he informed them

      that he had seen Thomas with a “bunch” of methamphetamine at his apartment

      that day. (App. Vol. 2 at 26).




      1
          IND. CODE § 35-48-4-1.1.
      2
          I.C. § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2774| April 24, 2019   Page 2 of 7
[4]   Based on this information, law enforcement officials obtained a search warrant

      for Thomas’ apartment and executed it the following day. In executing the

      search warrant, law enforcement discovered methamphetamine “packaged in

      plastic in a manner to be sold.” (App. Vol. 2 at 29). They also found pills,

      marijuana, syringes, digital scales, glass smoking pipes, and a handgun and

      ammunition in Thomas’ apartment. Thomas admitted that he had possessed

      and sold methamphetamine out of his apartment on “multiple occasions.”

      (App. Vol. 2 at 29).


[5]   The State charged Thomas with two counts of Level 4 felony dealing in

      methamphetamine, Level 5 felony possession of methamphetamine, two counts

      of Level 6 felony possession of a controlled substance, Level 6 felony unlawful

      possession of a syringe, Level 6 felony maintaining a common nuisance, Level

      6 felony theft, Class B misdemeanor possession of marijuana, and Class C

      misdemeanor possession of paraphernalia. The State also alleged that Thomas

      was an habitual offender.


[6]   Thomas entered into an open plea agreement with the State wherein nine of the

      ten counts were dropped in exchange for Thomas’ admission to Level 5 felony

      dealing in methamphetamine and the habitual offender allegation. The

      agreement left sentencing to the trial court’s discretion with a maximum term of

      ten (10) years, and the State agreed not to contest a sentence modification after

      Thomas served half of his sentence.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2774| April 24, 2019   Page 3 of 7
[7]   At the sentencing hearing, the trial court found both mitigating and aggravating

      factors present. The trial court identified the following mitigating factors: (1)

      Thomas’ guilty plea saved the expense of a jury trial; (2) the undue hardship

      that imprisonment would yield to him or his family; (3) he was a victim of a

      violent crime, which led him to battle depression and turn to using

      methamphetamine; (4) his completion of an eight-week substance abuse course

      while in jail; (5) his remorse; (6) his attitude indicated that he is less likely to

      commit another crime in the future; and (7) his good behavior while

      incarcerated in jail. The trial court identified the following aggravating factors:

      (1) Thomas’ prior criminal history of five misdemeanor convictions and two

      felony convictions; (2) all of his convictions involved alcohol and/or drugs; (3)

      he has been placed on probation seven times and had his probation revoked at

      least once. The trial court then found that the aggravating factors outweighed

      the mitigating factors and that Thomas was not likely to respond affirmatively

      to probation. The trial court sentenced Thomas to six (6) years for the Level 5

      felony conviction and enhanced that sentence by four (4) years for his habitual

      offender adjudication, for a total executed term of ten (10) years in the

      Department of Correction. Thomas now appeals.


                                                  Decision

[8]   Thomas argues that his sentence of ten years is inappropriate in light of the

      nature of the offense and his character. This Court may revise a sentence if it is

      inappropriate in light of the nature of the offense and the character of the

      offender. Ind. Appellate Rule 7(B). “The 7(B) ‘appropriateness’ inquiry is a
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2774| April 24, 2019   Page 4 of 7
      discretionary exercise of the appellate court’s judgment, not unlike the trial

      court’s discretionary sentencing determination.” Knapp v. State, 9 N.E.3d 1274,

      1291-92 (Ind. 2014), cert. denied. “On appeal, though, we conduct that 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.” Id. at 1292 (internal

      quotation marks, internal bracket, and citation omitted). “Appellate Rule 7(B)

      analysis is not to determine whether another sentence is more appropriate but

      rather whether the sentence imposed is inappropriate.” Conley v. State, 972

      N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted),

      reh’g denied. The defendant has the burden of persuading the appellate court

      that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080

      (Ind. 2006).


[9]   “‘[R]egarding the nature of the offense, the advisory sentence is the starting

      point the Legislature has selected as an appropriate sentence for the crime

      committed.’” Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016) (quoting

      Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d

      218 (Ind. 2007)). Here, Thomas was convicted of a Level 5 felony and found to

      be an habitual offender. The sentencing range for a Level 5 felony is “for a

      fixed term of between one (1) and six (6) years, with the advisory sentence

      being three (3) years.” I.C. § 35-50-2-6(b). IND. CODE § 35-50-2-8 states in

      relevant part that, where a person has been convicted of a Level 5 felony and

      found to be an habitual offender, the court shall sentence him to an additional

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2774| April 24, 2019   Page 5 of 7
       fixed term that is between two (2) and six (6) years. I.C. § 35-50-2-8(i)(2). The

       trial court sentenced Thomas to six (6) years for the Level 5 conviction and an

       additional four (4) years for the habitual offender enhancement, for a total

       sentence of ten (10) years.


[10]   Thomas argues that the nature of the offense does not support his ten-year

       sentence. Specifically, he argues that his offense “tips towards the less serious

       side of the spectrum.” (Thomas’ Br. 10). We disagree. The nature of Thomas’

       offense involves him not only possessing, but also dealing methamphetamine

       “multiple times” out of his apartment. (App. Vol. 2 at 29). As the trial court

       noted, “any time a drug is dealt, there is a potential for harm to another human

       being.” (Tr. 17). Law enforcement also discovered a substantial quantity of

       other drugs and paraphernalia in his apartment. Additionally, this offense is

       more serious since it is his second conviction for dealing drugs.


[11]   When considering the character-of-the-offender prong of our inquiry, one

       relevant consideration is the defendant’s criminal history. Rutherford v. State,

       866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance of a defendant’s

       prior criminal history will vary “based on the gravity, nature and number of

       prior offenses as they relate to the current offense.” Smith v. State, 889 N.E.2d

       261, 263 (Ind. 2008) (internal quotation marks and citation omitted).


[12]   Thomas has a significant history of criminal convictions for alcohol and drug

       related offenses. This history includes seven prior convictions, made up of five

       misdemeanors and two felonies. One of his felony convictions was for dealing


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2774| April 24, 2019   Page 6 of 7
       a controlled substance and the other was for maintaining a common nuisance.

       Thomas has been placed on probation seven times and had his probation

       revoked once. While we recognize that he has taken advantage of rehabilitative

       opportunities in the instant case, his continued drug related behavior is

       indicative of a failure to do so in the past and reflects poorly on his character.

       See, e.g., Phelps v. State, 969 N.E.2d 1009, 1021 (Ind. Ct. App. 2012) (stating that

       the defendant’s refusal to take advantage of rehabilitative efforts offered to him

       reflected poorly on his character), trans. denied.


[13]   Thomas has not persuaded us that the nature of the offense and his character

       make his sentence inappropriate. Therefore, we affirm the sentence imposed by

       the trial court.


[14]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2774| April 24, 2019   Page 7 of 7
