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                           Apr 09 2014, 6:16 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

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

                                                 RICHARD C. WEBSTER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

MATTHEW McKINNEY,                                )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 15A01-1309-CR-399
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE DEARBORN SUPERIOR COURT
                         The Honorable Sally A. Blankenship, Judge
                               Cause No. 15D02-1302-FA-8



                                       April 9, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Appellant-defendant Matthew McKinney appeals the thirty-year aggregate

sentence imposed by the trial court after he pleaded guilty to Count I, Dealing in a

Schedule II Controlled Substance,1 a class A felony, Count II, Dealing in a Schedule II

Controlled Substance,2 a class B felony, and Count III, Dealing in Marijuana,3 a class C

felony.        More particularly, McKinney argues that the cumulative sentence was

inappropriate in light of the nature of his offense and his character. Concluding that

McKinney’s sentence was not inappropriate, we affirm the judgment of the trial court.

                                                     FACTS

          In April 2012, the Dearborn County Special Crimes Unit received tips that

McKinney was dealing drugs from his apartment and at a park in Lawrenceburg.

Consequently, an undercover officer made contact with McKinney and purchased

hydrocodone and marijuana from him on several occasions, including January 3, 2013,

January 4, 2013, January 8, 2013, January 11, 2013, January 17, 2013, January 24, 2013,

and February 6, 2013. On February 13, 2013, the State charged McKinney with Count I,

dealing in a schedule II controlled substance within 1,000 feet of a family housing

complex as a class A felony; Count II dealing in a schedule II controlled substance as a

class B felony; and Count III dealing in marijuana within 1,000 feet of a family housing

complex as a class C felony.


1
    Ind. Code § 35-48-4-2(a)(1)(C), (b)(2)(B)(iii)
2
    I.C. § 35-48-4-2(a)(1)(C)
3
    I.C. § 35-48-4-10(b)(2)(B)(ii)
                                                       2
       On July 10, 2013, McKinney pleaded guilty to all counts. The trial court held a

sentencing hearing on August 20, 2013. At the hearing, McKinney testified that he could

neither read nor write, and that, while he had been able to briefly work at jobs where

reading was not required, he had trouble holding down a job. McKinney and his mother

both testified that his literacy difficulties might be the result of a childhood injury to his

head caused by a two-story fall. McKinney further testified that he was injured while

working at Midwest Cylinder and that the injury led to his addiction to painkillers, as he

was prescribed Vicodin for pain, though McKinney never sought effective treatment for

his drug addiction. Additionally, McKinney had prior convictions for possession of

marijuana in 2004 and possession of paraphernalia in 2006.              McKinney received

probation for both convictions.

       On August 21, 2013, the trial court held a pronouncement of sentencing hearing.

At the hearing, the trial court considered McKinney’s limited I.Q. and learning

disabilities as mitigating factors. However, the trial court also found that McKinney’s

ability to participate in an ongoing illegal drug operation showed an ability to plan,

coordinate, and communicate. The trial court believed this ability showed that McKinney

did indeed have the ability to pursue a legal vocational career and instead chose to

participate in illegal activities. The court considered as aggravating factors McKinney’s

criminal history, that he sold illegal substances in a family housing complex, and that

McKinney failed to effectively seek drug treatment. After weighing the mitigating and

aggravating factors, the trial court sentenced McKinney to thirty years of incarceration

                                              3
with ten years suspended and the final two years to be served on probation on Count I, to

ten years on Count II, and to four years on Count III with all sentences to be served

concurrently for an aggregate of thirty years with ten years suspended.

       McKinney now appeals.

                             DISCUSSION AND DECISION

       McKinney argues that the sentence imposed by the trial court is inappropriate in

light of the nature of his offenses and his character pursuant to Indiana Appellate Rule

7(B). More particularly, McKinney argues that, as his longest sentence is for dealing in a

schedule II controlled substance within 1,000 feet of a family housing complex as a class

A felony, this court should consider the fact that the legislature has revised the criminal

code concerning drug offenses. McKinney points the Court to revised Indiana Code

section 38-48-4-2(a), effective July 1, 2014, which classifies the sale of a schedule II

controlled substance, absent enhancing circumstances, as a Level 5 felony with an

advisory sentence of two years. Additionally, McKinney argues that the trial court did

not adequately consider his level of mental functioning when it decided to give him the

advisory sentence.    McKinney asks that this Court reverse the trial court’s order

sentencing him to the advisory terms for each of his offenses and resentence him to the

minimum term of imprisonment to be served concurrently.

       On appeal, 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.” Ind.

                                             4
Appellate Rule 7(B). However, this court does not substitute its judgment for that of the

trial court.   Foster v. State, 795 N.E.2d 1078, 1092 (Ind. Ct. App. 2003).          Under

Appellate Rule 7(B), the question is not whether it is more appropriate to impose a

different sentence upon the defendant, but whether the defendant’s sentence is

appropriate.   Steinberg v. State, 941 N.E.2d 515, 535 (Ind. Ct. App. 2011).           The

defendant bears the burden of persuasion on appeal that the sentence he received is

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

       We start by noting that, when considering the nature of the offense, “the advisory

sentence is the starting point the Legislature has selected as an appropriate sentence for

the crime committed.” Anglemyer v. State, 868 N.E2d 482, 494 (Ind. 2007). McKinney

pleaded guilty to Count I, II, and III, and on each was given the advisory sentence: thirty

years is the advisory sentence for a class A felony under Indiana Code section 35-50-2-4,

ten years is the advisory sentence for a class B felony under Indiana Code section 35-50-

2-5, and four years is the advisory sentence for a class C felony under Indiana Code

section 35-50-2-6.

       McKinney argues that these advisory sentences should be eschewed by this Court

as a result of the recent revisions the legislature has made concerning drug offenses.

However, McKinney committed his crimes and was sentenced before the legislature

made these revisions, and while McKinney is correct that, “had McKinney committed his

crime after July 1, 2014, he would no longer be eligible” for the enhancement for selling

within 1,000 feet of a housing complex, he fails to note that he might still be eligible for

                                             5
an enhancement for selling within 500 feet of a public park while a person under eighteen

years of age was reasonably expected to be present under the Indiana Code section 35-48-

1-16.5, effective July 1, 2014. Appellant’s Br. p. 11. Regardless, Courts must generally

sentence defendants under the sentencing statutes in effect at the time the defendant

committed the offense.4 Barber v. State, 863 N.E.2d 1199, 1209 (Ind. Ct. App. 2007).

Therefore, McKinney’s argument concerning the nature of his offenses avails him of

nothing.

        McKinney also contends that his sentence is inappropriate in light of his character

and avers that the trial court did not give apt consideration to the possibility of a lesser

rehabilitative sentence in light of McKinney’s mental struggles. However, the record

shows that the court did indeed consider McKinney’s mental problems and that it

recognized his educational struggles and low I.Q. Tr. p. 71. However, after considering

McKinney’s criminal history and his extensive pattern of selling illegal controlled

substances, the trial court determined that he was “not likely to respond to short term

incarceration.” Id. at 72. In light of McKinney’s criminal history and pattern of selling

drugs, we do not find that the trial court’s sentence was inappropriate.

        The judgment of the trial court is affirmed.

BAILEY, J., and MATHIAS, J., concur.

4
  An exception to this rule exists. The doctrine of amelioration provides that “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.” Richards v. State, 681 N.E.2d 208, 213 (Ind. 1997). However, McKinney
was sentenced before the effective date of the revised Indiana Code section 38-48-4-2(a), which is
effective July 1, 2014. Thus, the doctrine of amelioration does not apply.
                                                     6
