MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                              Jun 14 2019, 10:07 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
John Kindley                                             Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Samantha M. Sumcad
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Darrell T. Green,                                        June 14, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-418
        v.                                               Appeal from the Randolph Circuit
                                                         Court
State of Indiana,                                        The Honorable Jay L. Toney,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         68C01-1804-F5-264



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-418 | June 14, 2019                    Page 1 of 5
                                       Statement of the Case
[1]   Darrell T. Green appeals his sentence following his conviction for dealing in

      methamphetamine, as a Level 5 felony, pursuant to a guilty plea. Green raises

      one 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 September 21, 2017, Green sold 0.92 gram of methamphetamine to a

      confidential informant (“CI”) for the Randolph County Sheriff’s Department in

      exchange for $100. Green again sold 0.35 gram of methamphetamine to the CI

      in exchange for $40 on September 25. And, on October 4, Green sold 1.26

      grams of methamphetamine to the CI in exchange for $150. As a result, the

      State charged Green with one count of dealing in methamphetamine, as a Level

      4 felony; two counts of dealing in methamphetamine, as Level 5 felonies; three

      counts of possession of methamphetamine, as Level 6 felonies; and three counts

      of maintaining a common nuisance, as Level 6 felonies.


[3]   On October 2, 2018, Green pleaded guilty to one count of dealing in

      methamphetamine, as a Level 5 felony. Pursuant to his guilty plea, the parties

      agreed that Green’s sentence would be three years, but that “[t]he amount of

      any suspended time, if any, as well as any probationary period, if any shall be

      left to the discretion of the Court.” Appellant’s App. Vol. II at 27. In exchange

      for his plea, the State dismissed the remaining charges. Following a hearing,




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-418 | June 14, 2019   Page 2 of 5
      the trial court accepted Green’s guilty plea. The court then sentenced Green to

      three years, all executed in the Department of Correction. This appeal ensued.


                                     Discussion and Decision
[4]   Green contends that his sentence is inappropriate in light of the nature of the

      offense and his character. Indiana Appellate Rule 7(B) provides that “[t]he

      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.” This court

      has recently held that “[t]he advisory sentence is the starting point the

      legislature has selected as an appropriate sentence for the crime committed.”

      Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana

      Supreme Court has recently explained that:


              The principal role of appellate review should be to attempt to
              leaven the outliers . . . but not achieve a perceived “correct”
              result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
              2008). Defendant has the burden to persuade us that the
              sentence imposed by the trial court is inappropriate. Anglemyer v.
              State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007),
              decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).


      Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).


[5]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

      sentence to the circumstances presented, and the trial court’s judgment “should

      receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we

      regard a sentence as inappropriate at the end of the day turns on “our sense of
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-418 | June 14, 2019   Page 3 of 5
      the culpability of the defendant, the severity of the crime, the damage done to

      others, and myriad other facts that come to light in a given case.” Id. at 1224.

      The question is not whether another sentence is more appropriate, but rather

      whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

      268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless

      overcome by compelling evidence portraying in a positive light the nature of the

      offense (such as accompanied by restraint, regard, and lack of brutality) and the

      defendant’s character (such as substantial virtuous traits or persistent examples

      of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[6]   The sentencing range for a Level 5 felony is one year to six years, with an

      advisory sentence of three years. See Ind. Code § 35-50-2-6(b) (2018). Pursuant

      to the plea agreement, the court sentenced Green to a term of three years. The

      court identified as an aggravating factor Green’s criminal history, and the court

      found that there were no mitigating factors. Accordingly, the trial court

      ordered Green to execute all three years in the Department of Correction.


[7]   On appeal, Green asserts that his “executed prison sentence for delivering meth

      to support his own habit is inappropriate for the simple and true reason that

      vices are not crimes[.]” Appellant’s Br. at 4. Specifically, he contends that his

      sentence is inappropriate in light of the nature of the offense because dealing in

      methamphetamine is simply “a vice, rather than a crime.” Reply Br. at 3. And

      Green contends that, because dealing in methamphetamine is a vice rather than

      a crime, his character is “merely vicious” but not criminal. Id. (emphasis

      removed). In essence, Green contends that his sentence is inappropriate

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-418 | June 14, 2019   Page 4 of 5
      because he did not commit a crime. But our legislature has clearly stated that

      dealing in methamphetamine is a crime. See I.C. § 35-48-4-1.1.


[8]   Green has not persuaded us that his sentence is inappropriate. Other than his

      simple assertion that dealing in methamphetamine is not a crime and that his

      character is merely vicious, Green does not make any other argument on appeal

      to explain why his executed sentence is inappropriate in light of the nature of

      the offense or his character. Green received the bargained-for advisory sentence

      despite his extensive criminal history, which includes several felony convictions

      for dealing in marijuana or possession of a controlled substance and a prior

      probation violation. We cannot say that Green’s sentence in inappropriate, and

      we affirm his sentence.


[9]   Affirmed.


      Baker, J., and Robb, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-418 | June 14, 2019   Page 5 of 5
