FOR PUBLICATION
                                                  Sep 11 2014, 8:57 am




ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

LEANNA WEISSMAN                               GREGORY F. ZOELLER
Lawrenceburg, Indiana                         Attorney General of Indiana

                                              KARL M. SCHARNBERG
                                              Deputy Attorney General
                                              Indianapolis, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

BRIAN M. MARLEY,                              )
                                              )
      Appellant-Defendant,                    )
                                              )
         vs.                                  )        No. 15A01-1403-CR-127
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )

                 APPEAL FROM THE DEARBORN SUPERIOR COURT 1
                       The Honorable Jonathan N. Cleary, Judge
                            Cause No. 15D01-1305-FB-20


                                  September 11, 2014
                             OPINION – FOR PUBLICATION

MATHIAS, Judge
       Brian M. Marley (“Marley”) pleaded guilty in Dearborn Superior Court to Class B

felony dealing in oxycodone, a Schedule II controlled substance, and was sentenced to a

term of twelve years, with ten years executed and two suspended to probation. On appeal,

Marley claims that his sentence is inappropriate in light of the nature of the offense and

the character of the offender.

       We affirm.

                                 Facts and Procedural History

       At the time relevant to this appeal, Marley lived with a woman named Kaitlin

Palmer (“Palmer”). Both Palmer and Marley were addicted to heroin. Marley also had a

prescription for oxycodone, an opiate pain-killer and a Schedule II controlled substance.

See Ind. Code § 35-48-2-6(b)(1)(O); see also Toney v. State, 961 N.E.2d 57, 60 (Ind. Ct.

App. 2012) (noting that oxycodone is an opiate). On February 13, 2013, an undercover

police officer in Dearborn County met Palmer through a friend of hers and told her that

he was looking to buy drugs for his cousin. Knowing that Marley was willing to sell his

oxycodone pills to help fund his heroin addiction, Palmer contacted Marley and told him

of the opportunity to sell the pills. Marley met Palmer and sold the undercover officer

ten oxycodone pills for $100. Marley and Palmer then took the proceeds from the sale

and purchased heroin, which they shared.

       Thereafter, Palmer called the undercover officer repeatedly to ask if he wanted to

purchase more pills. Eventually, Palmer arranged two more sales. The first occurred on

March 12, 2013. On that date, Marley drove Palmer to a nearby Walmart parking lot and

met with the undercover officer. Palmer then sold the officer five oxycodone pills for

                                              2
$50. A similar exchange took place on April 16, 2013, when Marley again drove Palmer

to the Walmart parking lot, and she sold eight pills to the undercover officer in exchange

for $80.

         As a result of these events, the State charged Marley on May 10, 2013 with one

count of Class B felony dealing in oxycodone, a Schedule II controlled substance.

Palmer was similarly charged and came to a plea agreement with the State whereby she

would plead guilty and testify against Marley in exchange for receiving a sentence of

fifteen years, with five years to be served in the “Purposeful Incarceration”1 program and

ten years suspended to probation.

         Marley, however, was unable to reach a plea agreement with the State, and on

February 20, 2014, entered into an open plea of guilty. The trial court accepted the plea

and conducted a sentencing hearing. The court found Marley’s criminal history to be an

aggravating circumstance, noting that the State could have charged Marley as an habitual

offender. The court found as mitigating Marley’s poor physical health and that he

seemed willing to participate in therapy to overcome his addiction. The court noted that

Marley had a wife and three children, but gave this little mitigating weight because there

was no evidence that Marley supported his children. The court also noted Marley’s

1
    According to the Indiana Department of Correction’s website:
         In 2009 the Indiana Department of Correction (IDOC) began a cooperative project with
         Indiana Court Systems called Purposeful Incarceration (P.I.). The Department works in
         collaboration with Judges who can sentence chemically addicted offenders and document
         that they will “consider a sentence modification” should the offender successfully
         complete an IDOC Therapeutic community. This supports the Department [of]
         Correction and the Judiciary to get addicted offenders the treatment that they need and
         work collaboratively to support their successful re-entry into society.
Purposeful Incarceration, http://www.in.gov/idoc/2798.htm (last visited Aug. 29, 2014).
                                                    3
guilty plea as mitigating. The trial court then sentenced Marley to twelve years, with ten

years executed and two years suspended to probation. Marley now appeals.

                                        Standard of Review

        Even if a trial court acted within its statutory discretion in imposing a sentence,

Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent appellate

review and revision of a sentence imposed by the trial court.2 Trainor v. State, 950

N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied (citing Anglemyer v. State, 868

N.E.2d 482, 491 (Ind. 2007)). This authority is implemented via Indiana Appellate Rule

7(B), which provides that the court on appeal “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.” Id.

        Still, we must and should exercise deference to a trial court’s sentencing decision,

because Rule 7(B) requires us to give due consideration to that decision and because we

understand and recognize the unique perspective a trial court brings to its sentencing

decisions. Id. Although we have the power to review and revise sentences, the principal

role of our review should be to attempt to level the outliers, and identify some guiding

principles for trial courts and those charged with improvement of the sentencing statutes,

but not to achieve what we perceive to be a “correct” result in each case. Fernbach v.




2
  Marley does not claim that the trial court abused its discretion in sentencing him. He claims only that
his sentence is inappropriate.
                                                   4
State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied (citing Cardwell v. State,

895 N.E.2d 1219, 1225 (Ind. 2008)).

       When reviewing the appropriateness of a sentence, we are not “to consider only

the appropriateness of the aggregate length of the sentence without considering also

whether a portion of the sentence is ordered suspended.” Davidson v. State, 926 N.E.2d

1023, 1024. (Ind. 2010).      But “[t]his does not preclude a reviewing court from

determining a sentence to be inappropriate due to its overall sentence length despite the

suspension of a substantial portion thereof. A defendant on probation is subject to the

revocation of probation and may be required to serve up to the full original sentence.” Id.

       The appropriate question is not whether another sentence is more appropriate;

instead, the question is whether the sentence imposed is inappropriate. Former v. State,

876 N.E.2d 340, 344 (Ind. Ct. App. 2007). Although we need not compare the sentences

of codefendants we are not precluded from comparing sentences among those convicted

of the same or similar crimes. Knight v. State, 930 N.E.2d 20, 22 (Ind. 2010). It is the

defendant’s burden on appeal to persuade us that the sentence imposed by the trial court

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

                                Discussion and Decision

       Marley entered an open plea to a Class B felony. The sentencing range for a Class

B felony is six to twenty years, with ten years being the advisory sentence. Here, the trial

court imposed a sentence of two years greater than the advisory, but also eight years less




                                             5
than the maximum. It also ordered two years suspended to probation. Thus, Marley

received an executed sentence equivalent to the advisory sentence, i.e. ten years.3

        A. Revisions to the Criminal Code

        Marley claims that his sentence is inappropriate in light of the recent changes to

the Indiana criminal code that have, under certain circumstances, notably decreased the

sentences for drug offenses. Marley does not claim that the new criminal code statutes

apply directly to his conviction and sentence; he claims instead that we should consider

the public policy set forth in the new criminal code in determining whether his sentence

is inappropriate.

        Under the version of the dealing statue in effect prior to July 1, 2014, which

Marley admits is applicable to his offense, dealing in a Schedule I, II, or III controlled

substance was a Class B felony, with a sentencing range of six to twenty years. Ind.

Code § 35-48-4-2(a) (2013).4 Under the new version of the dealing statute, which

became effective July 1, 2014, dealing in a Schedule I, II, or III controlled substance is a

Level 6 felony, with a sentencing range of six months to one and one-half years. Ind.

Code § 35-48-4-2(a) (2014). Proof of dealing in larger amounts5 can elevate this crime


3
  We also note that the trial court was required to impose an executed sentence of at least six years, the
minimum sentence for a Class B felony, due to Marley’s prior felony convictions. See Ind. Code § 35-
50-2-2(b)(1) (providing that a trial court “may suspend only that part of the sentence that is in excess of
the minimum sentence . . . [if] [t]he crime committed was a Class A felony or Class B felony and the
person has a prior unrelated felony conviction.”).
4
  If certain additional elements were proven, this crime could be elevated to a Class A felony, with a
sentencing range of twenty to fifty years. I.C. § 35-48-4-2(b) (2013).
5
  With regard to elevation based on the amount of the controlled substance, dealing is: a Level 5 felony if
the amount is at least one gram but less than five grams; a Level 4 felony if the amount is at least five
grams but less than ten grams; a Level 3 felony if the amount is at least five grams but less than ten
grams; and a Level 2 felony if the amount is at least twenty-eight grams. Ind. Code § 35-48-4-2(c) – (f)
                                                    6
up to a Level 2 felony. Ind. Code § 35-48-4-2(b) (2014). The sentencing range for a

Level 2 felony is ten to thirty years. Ind. Code § 35-50-2-4.5 (2014). Marley argues that

we should consider this reduction in the penalties for dealing in a controlled substance

when addressing whether his sentence is appropriate.

       Generally speaking, the sentencing statutes in effect at the time the defendant

committed the offense govern the defendant’s sentence. Barber v. State, 863 N.E.2d

1199, 1209 (Ind. Ct. App. 2007). However, the doctrine of amelioration provides an

exception to this general rule where a defendant who is sentenced after the effective date

of a statute providing for more lenient sentencing is entitled to be sentenced pursuant to

that statute rather than the sentencing statute in effect at the time of the commission or

conviction of the crime. Id. Notably, the doctrine of amelioration does not apply where

the legislature, in a specific saving clause, expressly states an intention that crimes

committed before the effective date of the ameliorative amendment should be prosecuted

under prior law. Turner v. State, 870 N.E.2d 1083, 1087 (Ind. Ct. App. 2007).

       Here, the General Assembly, in enacting the new criminal code, also enacted

savings clauses. Specifically, both Indiana Code section 1-1-5.5-21 and section 1-1-5.5-

22 state that the new criminal code “does not affect: (1) penalties incurred; (2) crimes

committed; or (3) proceedings begun” before the effective date of the new criminal code

sections, i.e., July 1, 2014. These sections also provide that “Those penalties, crimes, and

proceedings continue and shall be imposed and enforced under prior law as if [the new


(2014). Dealing in a controlled substance can also be elevated based on the presence of certain
“enhancing circumstances.” These enhancing circumstances are listed in Indiana Code section 35-48-1-
16.5 (2014).
                                                 7
criminal code] had not been enacted.” Id. And, in no uncertain terms, these sections

state: “The general assembly does not intend the doctrine of amelioration (see Vicory v.

State, 400 N.E.2d 1380 (Ind. 1980)) to apply to any SECTION [of the new criminal

code].” Id.

          It is abundantly clear from these statutes that the General Assembly intended the

new criminal code to have no effect on criminal proceedings for offenses committed prior

to the enactment of the new code. We think this is true with regard to considering the

appropriateness of a sentence under Appellate Rule 7(B); we are to proceed as if the new

criminal code had not been enacted. We therefore decline to take into consideration the

lesser penalties of the new criminal code in addressing the appropriateness of Marley’s

sentence. Instead, we consider what Appellate Rule 7(B) requires us to consider: the

nature of the offense and the character of the offender.

          B. Nature of the Offense

          Marley argues that the nature of his offense was not particularly egregious. He

focuses his argument on the fact that Palmer, who he claims was the more culpable of the

two given her more active role in selling the pills to the undercover officer, was given an

executed sentence of only five years. We do not find Marley’s argument to be persuasive

at all.

          Even though Marley was charged with one count of dealing in a Schedule II

controlled substance, there was evidence that he actively participated in three different

sales. And Marley admitted that he made daily trips to Cincinnati to purchase heroin.



                                              8
Although Palmer set up the drug sales, there was no indication that Marley was anything

other than a willing participant in the sales so that he could fund his heroin habit.

          With regard to Marley’s claim that Palmer received a more lenient sentence, we

disagree. It appears that Palmer entered into a plea agreement with a specific sentence,

whereas Marley entered into an open plea with no sentencing limitations or

recommendations. And even though Palmer was sentenced to only five years executed,

she also received a total sentence of fifteen years versus Marley’s twelve years.6 Thus,

after she is released from her executed time, Palmer will be on probation and be subject

to serving an additional ten years if she violates the terms of her probation. See Davidson,

926 N.E.2d at 1024 (“A defendant on probation is subject to the revocation of probation

and may be required to serve up to the full original sentence.”). Therefore, the fact that

Palmer received a different sentence than Marley received does support Marley’s claim

that his sentence is inappropriate.

          C. Character of the Offender.

          Marley’s character also supports the trial court’s sentencing decision. Marley’s

criminal history consists of two prior felony convictions and nine misdemeanor

convictions. Appellant’s App. p. 102. His prior convictions include: domestic violence,

assault, operating while suspended, driving under the influence, disorderly conduct,

resisting arrest, and driving with no license. Id. at 101-02.

          Marley attempts to minimize his criminal history by claiming that, like his instant

offense, his past crimes were all caused by his addiction, and he further notes that he has

6
    There is also no indication in the record that Palmer has a criminal history comparable to Marley’s.
                                                      9
sought treatment for his addiction. While we certainly commend Marley for seeking

treatment, the fact that he has a substance abuse problem is not necessarily a factor that

weighs in favor of a lesser sentence. This is especially so since Marley never sought

treatment until after his arrest for the instant offense. See Hape v. State, 903 N.E.2d 977,

1002 (Ind. Ct. App. 2009) (noting that a history of substance abuse may be a mitigating

circumstance but may also be an aggravating circumstance where the defendant is aware

of a substance abuse problem but has not taken appropriate steps to treat it); Bryant v.

State, 802 N.E.2d 486, 501 (Ind. Ct. App. 2004) (holding that trial court did not err in

finding substance abuse as an aggravating factor where defendant was aware of his

problem with drugs and alcohol yet did not take any positive steps to treat his addiction);

Bennet v. State, 787 N.E.2d 938, 948 (Ind. Ct. App. 2003) (holding that trial court did not

err in failing to find defendant’s alcohol abuse problem as mitigating, and could properly

have considered such as aggravating, where defendant was aware of problem yet never

sought help).

                                       Conclusion

       Because of the clear, unambiguous language of the savings clause statutes, we

decline to take into consideration the lesser penalties of the new criminal code when

addressing the appropriateness of Marley’s sentence. Upon considering the nature of the

offense and the character of the offender, we are unable to say that Marley’s sentence of

ten years executed and two years suspended is inappropriate.

       Affirmed.

RILEY, J., and CRONE, J., concur.

                                            10
