                                                                              Apr 08 2015, 10:02 am




      ATTORNEY FOR APPELLANT                                          ATTORNEYS FOR APPELLEE
      Cara Schaefer Wieneke                                           Gregory F. Zoeller
      Wieneke Law Office, LLC                                         Attorney General of Indiana
      Plainfield, Indiana
                                                                      Justin F. Roebel
                                                                      Deputy Attorney General
                                                                      Indianapolis, Indiana



                                                      IN THE
           COURT OF APPEALS OF INDIANA

      Bruce Schaadt,                                                 April 8, 2015

      Appellant-Defendant,                                           Court of Appeals Case No.
                                                                     33A05-1409-CR-428
               v.                                                    Appeal from the Henry County Court
                                                                     2
                                                                     The Honorable Kit C. Dean Crane,
      State of Indiana,                                              Judge
      Appellee-Plaintiff                                             Cause No. 33C02-1307-FA-39




      Friedlander, Judge.

[1]   Bruce Schaadt was convicted of two counts of class A felony Dealing in

      Methamphetamine Within 1000 Feet of a Family Housing Complex1 and one



      1
        The version of the dealing statute in effect at the time the offense was committed classified the charged
      offense as a class A felony. Ind. Code Ann. § 35-48-4-1.1 (West, Westlaw 2013). This statute has been
      substantially revised and in its current form reclassifies this offense as a Level 5 felony. See I.C. § 35-48-4-1.1
      (West, Westlaw current with all legislation of the 2015 1st Regular Session of the 119th General Assembly
      effective through February 23, 2015).

      Court of Appeals of Indiana | Opinion 33A05-1409-CR-428 | April 8, 2015                                 Page 1 of 7
      count of class D felony Maintaining a Common Nuisance.2 The trial court

      sentenced him to an aggregate term of forty years in prison. Schaadt challenges

      his sentence on appeal, raising the following restated issues:

               1.       Does the savings clause of the 2014 criminal code revision
                        violate the Equal Privileges and Immunities Clause of the
                        Indiana Constitution?
               2.       Is Schaadt’s forty-year sentence inappropriate in light of his
                        character and the nature of his offenses?
      We affirm.

[2]   On April 16 and 17, 2013, a confidential informant (CI) working with the

      Henry County Drug Task Force bought methamphetamine in two separate

      controlled buys from Schaadt and his girlfriend, Jessica Rinehart. The buys

      took place at the New Castle Inn, in a room where Schaadt and Rinehart were

      staying. The female CI contacted Rinehart to arrange the buys before arriving

      at the motel. Although the CI handed the buy money to Rinehart each time,

      Rinehart immediately turned it over to Schaadt. Moreover, in each exchange,

      Schaadt retrieved methamphetamine from a bag and gave it to Rinehart, who

      then handed it to the CI. The first buy involved .38 grams of

      methamphetamine and the second was .13 grams.

[3]   On July 26, 2013, the State charged Schaadt with two counts of dealing in

      methamphetamine within 1000 feet of a family housing complex, a class A

      felony, and one count of maintaining a common nuisance, a class D felony.


      2
        I.C. § 35-48-4-13(b) (2013). Under the revised statute, the offense has been reclassified as a Level 6 felony.
      I.C. § 35-48-4-13(b) (West, Westlaw current with all legislation of the 2015 1st Regular Session of the 119th
      General Assembly effective through February 23, 2015).

      Court of Appeals of Indiana | Opinion 33A05-1409-CR-428 | April 8, 2015                               Page 2 of 7
      Following a jury trial, which concluded on July 31, 2014, Schaadt was found

      guilty as charged. The trial court subsequently sentenced him to concurrent

      terms of forty years for each class A felony and three years for the class D

      felony. Schaadt appeals his sentence.

                                                            1.

[4]   Schaadt initially mounts a constitutional challenge, claiming the savings clause

      of the 2014 criminal code revision violates the Equal Privileges and Immunities

      Clause, article 1, section 23 of the Indiana Constitution.3 Specifically, he

      observes that under the revised criminal code, his dealing conviction would

      constitute a Level 5 offense subject to a maximum prison term of six years. See

      Ind. Code Ann. § 35-50-2-6(b) (West, Westlaw current with all legislation of the

      2015 1st Regular Session of the 119th General Assembly effective through

      February 23, 2015). He argues that the ameliorative sentencing provisions

      should apply retroactively to defendants who had not yet been convicted and

      sentenced when the revision took effect on July 1, 2014.

[5]   After the commission of Schaadt’s offense but while his case was still pending,

      an overhaul of our criminal code went into effect pursuant to P.L. 158-2013 and

      P.L. 168-2014. This revision resulted in, among other things, a drastic

      reduction of the sentencing ranges for most drug offenses. The General

      Assembly, however, made it abundantly clear that the new criminal code was


      3
        The State argues that Schaadt waived this issue by failing to raise the constitutional challenge below. We
      choose to exercise our discretion and address the constitutional claim on the merits. See Plank v. Cmty. Hosp.
      of Ind., Inc., 4 N.E.3d 797 (Ind. Ct. App. 2014).

      Court of Appeals of Indiana | Opinion 33A05-1409-CR-428 | April 8, 2015                             Page 3 of 7
      not intended to have any effect on criminal proceedings for offenses committed

      prior its enactment. Marley v. State, 17 N.E.3d 335 (Ind. Ct. App. 2014), trans.

      denied. In this regard, the General Assembly enacted the following specific

      savings clause:

              (a) A SECTION of P.L.158-2013 or P.L.168-2014 does not affect:
                       (1) penalties incurred;
                       (2) crimes committed; or
                       (3) proceedings begun;
              before the effective date of that SECTION of P.L.158-2013 or P.L.168-
              2014. Those penalties, crimes, and proceedings continue and shall be
              imposed and enforced under prior law as if that SECTION of P.L.158-
              2013 or P.L.168-2014 had not been enacted.
              (b) 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 P.L.158-2013 or P.L.168-2014.
[6]   Ind. Code Ann. § 1-1-5.5-21 (West, Westlaw current with all legislation of the

      2015 1st Regular Session of the 119th General Assembly effective through

      February 23, 2015).

[7]   Schaadt argues that the savings clause unconstitutionally and arbitrarily creates

      “two classes of drug offenders: those who committed their offenses before the

      change in law and those who committed their offenses after the change in law.”

      Appellant’s Brief at 4. We find nothing arbitrary about the savings clause.


[8]   The Indiana Constitution provides that the “General Assembly shall not grant

      to any citizen, or class of citizens, privileges or immunities, which, upon the

      same terms, shall not equally belong to all citizens.” Ind. Const. art. 1, § 23.


      Court of Appeals of Indiana | Opinion 33A05-1409-CR-428 | April 8, 2015         Page 4 of 7
       Our courts have consistently held that “a change in penal statutes which applies

       only to those who commit their crimes after its effective date does not violate

       one’s equal protection rights.” Rondon v. State, 711 N.E.2d 506, 513 (Ind.

       1999). See also State v. Alcorn, 638 N.E.2d 1242 (Ind. 1994); Vicory v. State, 400

       N.E.2d 1380 (Ind. 1980); Rivera v. State, 385 N.E.2d 455 (Ind. Ct. App. 1979).

       This is so because the “the time of a crime is selected as an act of free will by

       the offender.” Rondon v. State, 711 N.E.2d at 513 (quoting State v. Alcorn, 638

       N.E.2d at 1245). The offender, not the State, chooses which statute applies.

       Rondon v. State, 711 N.E.2d 506. Schaadt has no viable equal privileges and

       immunities claim. See id.


                                                           2.


[9]    As an alternative argument, Schaadt contends that his sentence is inappropriate

       in light of the nature of his offenses and his character. He also asks that we take

       into account the considerable disparity between his sentence and what he would

       have received under the revised code.

[10]   Article 7, section 4 of the Indiana Constitution grants our Supreme Court the

       power to review and revise criminal sentences. See Knapp v. State, 9 N.E.3d

       1274 (Ind. 2014). Pursuant to Ind. Appellate Rule 7, the Supreme Court

       authorized this court to perform the same task. Cardwell v. State, 895 N.E.2d

       1219 (Ind. 2008). Per App. R. 7(B), 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


       Court of Appeals of Indiana | Opinion 33A05-1409-CR-428 | April 8, 2015      Page 5 of 7
       character of the offender.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014)

       (quoting App. R. 7(B)). “Sentencing review under Appellate Rule 7(B) is very

       deferential to the trial court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012).

       Schaadt bears the burden on appeal of persuading us that his sentence is

       inappropriate. Conley v. State, 972 N.E.2d 864.


[11]   The statutory sentencing range for a class A felony is twenty to fifty years, with

       an advisory sentence of thirty years. I.C. § 35-50-2-4(a) (West, Westlaw current

       with all legislation of the 2015 1st Regular Session of the 119th General

       Assembly effective through February 23, 2015). Thus, Schaadt received an

       aggravated sentence midway between the advisory and maximum sentence for

       a class A felony.

[12]   As recognized above, the General Assembly intended the new criminal code to

       have no effect on criminal proceedings for offenses, like Schaadt’s, committed

       prior to July 1, 2014. “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.” Marley v. State, 17 N.E.3d at

       340. Accordingly, we decline Schaadt’s invitation to take into consideration the

       lesser penalties of the new criminal code in addressing the appropriateness of

       his sentence. Instead, we consider what App. R. 7(B) requires us to consider:

       the nature of the offense and the character of the offender.

[13]   With respect to the nature of the offense, Schaadt claims that his involvement in

       the drug transactions was minor and that the total amount of


       Court of Appeals of Indiana | Opinion 33A05-1409-CR-428 | April 8, 2015     Page 6 of 7
       methamphetamine dealt was a small amount. The record does not support

       Schaadt’s claim regarding his role in the transactions. In both instances, he was

       the one supplying the drugs and ultimately obtaining the money. Regardless,

       we acknowledge that the nature of Schaadt’s offenses were not particularly

       aggravating and alone might not support the sentence imposed.

[14]   Schaadt’s character, however, is significantly aggravating. His prior criminal

       history is extensive with ten misdemeanor convictions (including, OWI, theft,

       fraud, check deception, and driving offenses), four felony convictions (theft,

       drug possession, and driving offenses), and a number of probation violations

       over the last twenty plus years. His convictions span two states and despite

       serving lengthy sentences, Schaadt has remained generally undeterred in his

       criminal pursuits when not in prison.

[15]   Upon considering the nature of the offense and the character of the offender, we

       are unable to say that Schaadt’s aggregate sentence of forty years for two class

       A felonies and one class D felony is inappropriate.


[16]   Judgment affirmed.

       Baker, J., and Najam, J., concur.




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