MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             FILED
regarded as precedent or cited before any                    Mar 30 2017, 8:19 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
Cara Schaefer Wieneke                                  Curtis T. Hill, Jr.
Wieneke Law Office                                     Attorney General of Indiana
Brooklyn, Indiana
                                                       Caryn N. Szyper
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert D. Rivard,                                      March 30, 2017
Appellant-Defendant,                                   Court of Appeals Case No.
                                                       84A04-1611-CR-2838
        v.                                             Appeal from the Vigo Superior
                                                       Court
State of Indiana,                                      The Honorable David R. Bolk,
Appellee-Plaintiff.                                    Judge
                                                       Trial Court Cause No.
                                                       84D03-1603-F2-812



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2838 | March 30, 2017   Page 1 of 5
                                      Statement of the Case
[1]   Robert D. Rivard appeals his sentence after he pleaded guilty to dealing in

      methamphetamine, as a Level 2 felony. Rivard raises a single issue for our

      review, namely, whether his sentence is inappropriate in light of the nature of

      the offense and his character. We affirm.


                                 Facts and Procedural History
[2]   On March 17, 2016, the Indiana State Police obtained a search warrant for

      Rivard’s residence after having conducted two controlled drug buys there.

      While executing that warrant, Rivard informed the searching officers that there

      was methamphetamine in the middle drawer of his bedroom dresser. There,

      officers found and seized 37.5 grams of methamphetamine. Officers also found

      and seized a black digital scale with white residue on it, a glass smoking device,

      and more than $5,000 in cash.


[3]   The State charged Rivard with several offenses. On September 16, Rivard

      pleaded guilty, pursuant to a written plea agreement, to dealing in

      methamphetamine, as a Level 2 felony. In exchange, the State agreed to

      dismiss four other charges and an habitual offender allegation. The parties

      further agreed that Rivard would not be sentenced to more than twenty-five

      years executed.


[4]   The trial court accepted Rivard’s plea agreement and held a sentencing hearing.

      At the conclusion of that hearing, the court stated as follows:



      Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2838 | March 30, 2017   Page 2 of 5
        [T]he aggravating factor here is . . . Mr. Rivard’s criminal
        history. [H]e has nine prior felony convictions . . . many of them
        are alcohol and drug related . . . . I find no other statutory
        aggravating . . . factors. . . . [W]ith respect to . . . the mitigating
        factors . . . I’m not go[ing] to give much weight to the fact that he
        ple[aded] guilty because the habitual was dismissed as part of this
        proceeding . . . [,] but he did plead guilty, has taken responsibility
        and ple[aded], and has pl[eaded] to a significant
        and . . . serious . . . offense . . . . [B]ut he received a significant
        benefit because had he been convicted of a Level Two . . . it’s a
        mandatory minimum non-suspendible . . . on . . . the habitual
        portion. . . . Mr. Rivard clearly has some health and medical
        issues that are more significant than . . . the Court usually sees.
        He’s had a stroke, he’s had . . . difficulty reading and writing, has
        difficulty using the right side of his body. . . . He was cooperative
        [during the execution of the search warrant]. . . . Mr. Rivard is
        not addicted to methamphetamine. . . . He’s impoverished.
        He’d make [sic] an economic business decision . . . to sell
        methamphetamine. . . . [H]e’s apologized for it, but it’s clear that
        this is not a person who’s using a little bit, selling a little bit.
        There was a significant amount of methamphetamine
        here . . . and Mr. Rivard . . . wasn’t using. He has substance
        abuse issues . . . I mean, alcohol addiction probably, marijuana
        addiction admittedly . . . . [I]n light of Mr. Rivard’s criminal
        history . . . this requires a slightly aggravated sentence over and
        above the advisory, so I’m go[ing] to impose a sentence of
        nineteen years. I’m going to order that six be executed at the
        Indiana Department of Correction[.] I’m go[ing to] order that
        Mr. Rivard be placed in a Therapeutic Community; specifically
        the Court’s recommending G.R.I.P. or P.L.U.S. That upon
        successful completion of G.R.I.P. or P.L.U.S. . . . the Court will
        immediately suspend the balance of the six years and place him
        on formal probation . . . . With respect to the fourteen years
        suspended, I’m going to order that . . . [six and one-half years] be
        formal [probation], [six and one-half years] informal.



Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2838 | March 30, 2017   Page 3 of 5
      Tr. Vol. IV at 21-24. This appeal ensued.


                                    Discussion and Decision
[5]   Rivard contends that his sentence is inappropriate. Indiana Appellate Rule 7(B)

      permits an Indiana appellate court to “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.” We assess the trial court’s recognition or nonrecognition 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). The principal role of appellate review is to “leaven the

      outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). A defendant

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

      inappropriateness standard of review. Roush v. State, 875 N.E.2d 801, 812 (Ind.

      Ct. App. 2007).


[6]   According to Rivard, his nineteen-year sentence is inappropriate in light of the

      nature of the offense because, while he was in possession of a large amount of

      methamphetamine and cash, he was cooperative with police during the

      execution of the warrant, he was not in possession of firearms or other

      weapons, and he did not act “in a violent or aggressive manner at any time.”

      Appellant’s Br. at 7. And, with respect to his character, Rivard contends that

      his sentence is inappropriate because, while he has a lengthy criminal history,

      he suffers from several health problems, he is impoverished, he cooperated with

      police, and he pleaded guilty.
      Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2838 | March 30, 2017   Page 4 of 5
[7]   We cannot agree with Rivard that his sentence is inappropriate. The trial court,

      having already considered all the factors raised on appeal, balanced them and

      imposed a nuanced sentence. In particular, the court ordered Rivard to serve

      nineteen years total, which is one and one-half years above the advisory term

      for a Level 2 felony. See Ind. Code § 35-50-2-4.5 (2016). But the court ordered

      only six of those nineteen years to be executed—well below the twenty-five

      years the court could have imposed under the plea agreement—and of those six

      years the court instructed Rivard that it would immediately suspend any

      portion of that time that remained once Rivard successfully completed a

      therapeutic community program. Of the other thirteen years, the court ordered

      that they be evenly split between formal and informal probation.


[8]   Considering the amount of methamphetamine discovered in Rivard’s residence,

      which was nearly quadruple the amount needed to convict him of the Level 2

      felony offense, and his extensive criminal history, we cannot say that Rivard’s

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

      The trial court’s carefully crafted sentence is not an “outlier” that requires

      appellate revision. See Cardwell, 895 N.E.2d at 1225. We affirm Rivard’s

      sentence.


[9]   Affirmed.


      Riley, J., and Bradford, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2838 | March 30, 2017   Page 5 of 5
