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 2020, 6:28 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
Paula M. Sauer                                            Curtis T. Hill, Jr.
Danville, Indiana                                         Attorney General of Indiana

                                                          George P. Sherman
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Nathaniel Baxter,                                         April 24, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2195
        v.                                                Appeal from the Hendricks
                                                          Superior Court
State of Indiana,                                         The Honorable Rhett M. Stuard,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          32D02-1811-F2-23



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2195 | April 24, 2020               Page 1 of 10
[1]   Nathaniel Baxter appeals his two convictions of Level 2 felony dealing in

      methamphetamine. 1 Baxter argues:


                  1. the trial court may have rendered a different sentence but for
                     certain comments made by the State, and


                  2. his sentence is inappropriate in light of the nature of his
                     offense and his character.


      We affirm.



                            Facts and Procedural History
[2]   In October 2018, Anthony Fite, a detective with the Avon Police Department,

      was working as an undercover agent. A confidential informant notified Fite of

      Baxter and the police began investigating him. Fite began to text with Baxter.

      On October 30, 2018, Baxter agreed to sell methamphetamine to Fite. The

      same day, Baxter and Fite met at the Applebee’s in Avon, Indiana. Baxter sold

      13.83 grams of methamphetamine to Fite for $250.00. Fite used marked bills to

      complete the sale.


[3]   On November 6, 2018, Baxter and Fite again communicated by text message.

      Fite asked to purchase pills from Baxter. Baxter informed Fite he did not have

      any pills but could sell him 10 grams of methamphetamine. On November 8,




      1
          Ind. Code § 35-48-4-1.1(a)(1) (2017).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2195 | April 24, 2020   Page 2 of 10
      2018, Baxter sold Fite 10.07 grams of methamphetamine for $150.00. Fite

      again used marked bills to complete the sale. Following the sale, officers pulled

      over Baxter’s car, arrested him, and searched his car. Police found three

      cellphones and approximately $1,000.00, including the money used by Fite to

      purchase the methamphetamine, in Baxter’s car.


[4]   The State charged Baxter with two counts of Level 2 felony dealing in

      methamphetamine. The State also alleged Baxter was a habitual offender. 2

      The trial court held a bifurcated jury trial – the first half concerned the two

      counts of dealing, and the second half concerned the habitual offender

      allegation. The jury returned a guilty verdict on both counts of dealing and also

      determined Baxter was an habitual offender. The trial court sentenced Baxter

      to twenty years in prison for each conviction of Level 2 felony dealing in

      methamphetamine, to be served concurrently. The trial court enhanced

      Baxter’s sentence for the first count by eight years based on his adjudication as

      an habitual offender, for an aggregate sentence of twenty-eight years.



                                    Discussion and Decision
                                          1. Sentencing Allegations
[5]   Baxter argues the trial court may have sentenced Baxter differently, had the

      State: (1) not suggested his sentences are non-suspendible, (2) not suggested




      2
          Ind. Code § 35-50-2-8 (2017).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2195 | April 24, 2020   Page 3 of 10
      consecutive sentences were authorized, and (3) not argued both counts be

      enhanced by the habitual offender finding. Sentencing decisions rest within the

      sound discretion of the trial court, and we review such decisions only for an

      abuse of discretion. Morrell v. State, 118 N.E.3d 793, 796 (Ind. Ct. App. 2019),

      clarified on reh’g on other grounds, 121 N.E.3d 577 (Ind. Ct. App. 2019), trans.

      denied. “An abuse of discretion occurs if the decision is clearly against the logic

      and effect of the facts and circumstances.” Allen v. State, 875 N.E.2d 783, 788

      (Ind. Ct. App. 2007). A trial court may abuse its discretion in imposing a

      sentence by failing to enter a sentencing statement, identifying aggravating and

      mitigating factors the record does not support, omitting reasons clearly

      supported in the record and advanced for consideration, or stating reasons for

      sentence that are improper as a matter of law. Anglemyer v. State, 868 N.E.2d

      482, 494 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007).


[6]   First, Baxter argues the State incorrectly suggested during a pretrial conference

      and at the sentencing hearing that Baxter’s sentences were non-suspendible.

      Pursuant to Indiana Code section 35-50-2-2.2(a), “the court may suspend any

      part of a sentence for a felony” unless suspension is prohibited by other portions

      of that same statutory section. Baxter was convicted herein of Level 2 felony

      dealing in methamphetamine under Indiana Code section 35-48-4-1.1, making

      relevant the exception in subsection 2.2(c), which provides that if:


              (1) a person has a prior unrelated felony conviction in any
              jurisdiction for dealing in a controlled substance that is not
              marijuana, hashish, hash oil, salvia divinorum, or a synthetic


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2195 | April 24, 2020   Page 4 of 10
              drug, including an attempt or conspiracy to commit the offense;
              and


              (2) the person is convicted of a Level 2 felony under Indiana
              Code § 35-48-4-1.1 or Ind. Code § 35-48-4-1.2;


              the court may suspend only that part of a sentence that is in
              excess of the minimum sentence for the Level 2 felony.


      Ind. Code § 35-50-2-2.2(c).


[7]   Baxter argues the record does not support the State’s suggestion that his

      sentences were non-suspendible under that subsection, because the Pre-

      Sentence Investigation report did not specifically state whether his prior dealing

      conviction was a felony or what controlled substance he was convicted of

      dealing.     However, Baxter did not object to the State’s suggestion at the

      sentencing hearing or direct the trial court to this statute. Thus, the argument

      was waived, and Baxter cannot raise it on appeal. See Durden v. State, 99 N.E.3d

      645, 652 (Ind. 2018) (“A party’s failure to object to an alleged error at trial

      results in waiver.”).


[8]   Waiver notwithstanding, Baxter contends that the trial court relied on the

      State’s erroneous statement. However, when discussing the factors it was

      relying on during sentencing, the trial court made no mention of whether

      Baxter’s sentences were non-suspendible. Baxter has not demonstrated he was

      prejudiced by the State’s argument. See Meyer v. Meyer, 560 N.E.2d 39, 44 (Ind.

      1990) (trial court judgment was proper when it was supported by the record),


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2195 | April 24, 2020   Page 5 of 10
       distinguished on other grounds by Moell v. Moell, 84 N.E.3d 741 (Ind. Ct. App.

       2017).


[9]    Second, Baxter argues the State incorrectly suggested his sentences could be

       served consecutively. Baxter admits “[t]he State did not request consecutive

       sentences.” (Appellant’s Br. at 22.) However, Baxter explains the State

       “suggested they were authorized by saying, ‘I’m not going to ask you to run

       them consecutively.’” (Id.) (quoting Tr. Vol. III at 8). The trial court sentenced

       Baxter to serve his sentences concurrently. Baxter did not raise this issue during

       the sentencing hearing, therefore the issue is waived. See Durden, 99 N.E.3d at

       652 (“A party’s failure to object to an alleged error at trial results in waiver.”).


[10]   Both Baxter and the State requested his sentences be served concurrently, and

       the trial court ultimately sentenced Baxter to serve his sentences concurrently.

       Baxter does not suggest any harm came from the prosecutor’s initial statement,

       nor is it clear any harm was suffered as Baxter received the concurrent

       sentences the he requested. We accordingly cannot find reversible error on this

       basis. See Ind. App. R. 66(A) (no appellate relief when alleged error is

       harmless).


[11]   Third, Baxter argues the State incorrectly suggested both of his sentences could

       be enhanced due to the finding of Baxter being an habitual offender when the

       statute allows only one conviction to be enhanced. Baxter is correct about the

       law. “The court shall attach the habitual offender enhancement to the felony

       conviction with the highest sentence imposed and specify which felony count is


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2195 | April 24, 2020   Page 6 of 10
       being enhanced.” Ind. Code § 35-50-2-8(j). However, Baxter did not object to

       the State’s suggestion to the trial court, and thus it is waived. See Durden, 99

       N.E.3d at 652 (“A party’s failure to object to an alleged error at trial results in

       waiver.”).


[12]   Moreover, Baxter does not indicate, nor does the record show, that the State

       requested both sentences be enhanced. Additionally, the trial court only

       attached the habitual offender enhancement to one of Baxter’s convictions.

       Therefore, Baxter has not demonstrated the trial court erred on this basis. See

       Moyer v. State, 83 N.E.3d 136, 144 (Ind. Ct. App. 2017) (no trial court error

       when habitual offender enhancement attached to just one conviction), trans.

       denied.


[13]   In summary, Baxter has not demonstrated the trial court erred when it

       sentenced him to twenty-eight years in prison. Rather, Baxter suggests “the

       trial court may have imposed a less harsh sentence had it not been misled by the

       State’s sentencing claims.” (Appellant’s Br. at 25) (emphasis added). However,

       “a sheerly speculative argument provides no reason for us to order a new

       sentencing hearing.” May v. State, 578 N.E.2d 716, 725 (Ind. Ct. App. 1991),

       distinguished on other grounds by Voss v. State, 856 N.E.2d 1211 (Ind. 2006).

       “[T[here is a strong presumption on appeal that a trial court has acted correctly

       and has properly followed the applicable law.” Moran v. State, 622 N.E.2d 157,

       159 (Ind. 1993). Because Baxter has not demonstrated error, we follow that

       presumption and affirm his twenty-eight-year sentence.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2195 | April 24, 2020   Page 7 of 10
                                         2. Appropriate Sentence
[14]   Baxter argues his sentence is inappropriate in light of his character and the

       nature of his offense. Our standard of review on this issue is well settled.


               We “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. Appellate Rule 7(B).
               “Although appellate review of sentences must give due
               consideration to the trial court’s sentence because of the special
               expertise of the trial bench in making sentencing decisions,
               Appellate Rule 7(B) is an authorization to revise sentences when
               certain broad conditions are satisfied.” Shouse v. State, 849
               N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and
               quotation marks omitted). “[W]hether we regard a sentence as
               appropriate 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 factors that come to light in a
               given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
               In addition to the “due consideration” we are required to give to
               the trial court’s sentencing decision, “we understand and
               recognize the unique perspective a trial court brings to its
               sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873
               (Ind. Ct. App. 2007).


       Couch v. State, 977 N.E.2d 1013, 1017 (Ind. Ct. App. 2012), reh’g denied, trans.

       denied. The appellant bears the burden of demonstrating his sentence is

       inappropriate. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011),

       trans. denied. When considering the nature of the offense, the advisory sentence

       is the starting point for determining the appropriateness of a sentence.

       Anglemeyer, 868 N.E.2d at 494.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2195 | April 24, 2020   Page 8 of 10
[15]   The sentencing range for a Level 2 felony is a fixed term between ten and thirty

       years with the advisory sentence being seventeen and one-half years. Ind. Code

       § 35-50-2-4.5 (2014). Baxter was sentenced to twenty years for each Level 2

       felony. If a person has been convicted of a Level 2 felony and is a habitual

       offender, the court shall sentence that person to an additional fixed term

       between six and twenty years. Ind. Code § 35-50-2-8(i)(1). The trial court

       ordered Baxter’s sentence for count two to be served concurrent to his sentence

       for count one and enhanced his sentence for count one by eight years based on

       his adjudication as an habitual offender, for an aggregate sentence of twenty-

       eight years.


[16]   Baxter twice sold methamphetamine to an undercover agent. Baxter

       communicated and set up his deals through text messaging. When he was

       apprehended, Baxter possessed a large sum of cash and multiple cell phones.

       While the nature of his offense is not particularly egregious, our review requires

       us to also examine Baxter’s character.


[17]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct.

       App. 2013). Baxter has a lengthy criminal history including convictions of

       criminal trespass, resisting law enforcement, possession of a controlled

       substance, possession of marijuana, battery, and possession of a controlled

       substance with intent to distribute, and including multiple convictions of

       possession of cocaine, operating a vehicle without ever receiving a license, and

       driving while suspended. Baxter also has juvenile adjudications for possession

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2195 | April 24, 2020   Page 9 of 10
       of marijuana, possession of cocaine, and fleeing from law enforcement. Baxter

       has had his probation and work release revoked for violations six times. (App.

       Vol. II at 35-42.) Baxter argues his difficult childhood should entitle him to a

       more lenient sentence. In light of Baxter’s significant criminal history, his

       difficult childhood is entitled to little, if any, mitigating weight. See Bethea v.

       State, 983 N.E.2d 1134, 1141 (Ind. 2013) (holding sentence above advisory not

       inappropriate even though defendant claimed difficult childhood).


[18]   Given Baxter’s poor character as demonstrated by his many adult convictions

       and juvenile adjudications, we cannot say Baxter’s sentence is inappropriate.

       See Clark v. State, 26 N.E.3d 615, 619 (Ind. Ct. App. 2014) (defendant’s

       extensive criminal history showed bad character and allowed for aggravated

       sentence), trans. denied.



                                               Conclusion
[19]   Baxter failed to demonstrate that the trial court relied on the prosecutor’s

       statements when it sentenced him. Additionally, Baxter’s poor character

       allowed for an aggravated sentence and thus his sentence was not

       inappropriate. Accordingly, we affirm.


[20]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2195 | April 24, 2020   Page 10 of 10
