Edward C. Sizemore v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 20, 2018
• Docket: 18A-CR-1707
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 20 2018, 8:34 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 Jennifer A. Joas Curtis T. Hill, Jr. Madison, Indiana Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Edward C. Sizemore, November 20, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1707 v. Appeal from the Ripley Circuit Court State of Indiana, The Honorable Ryan J. King, Appellee-Plaintiff Judge Trial Court Cause No. 69C01-1709-F4-14

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1707 | November 20, 2018 Page 1 of 5 [1] Edward Sizemore appeals the sentence imposed by the trial court after he

pleaded guilty to Level 4 Felony Dealing in Methamphetamine and Level 6

Felony Possession of a Hypodermic Needle. Sizemore argues that the sentence

is inappropriate in light of the nature of the offenses and his character. Finding

that the sentence is not inappropriate, we affirm.

Facts [2] On September 7, 2017, police officers went to Sizemore’s residence to serve an

arrest warrant on another individual. When the officers arrived, the other

individual fled on foot. Sizemore allowed officers inside of his house, where

the officers saw a digital scale with powder residue in plain view. After the

officers advised Sizemore of his rights, Sizemore admitted that he was a

methamphetamine dealer and user, explaining that he sold approximately seven

grams of methamphetamine every three to five days. A gram of

methamphetamine generally sold for $60 to $100, meaning that Sizemore was

earning $420 to $700 every three to five days. Officers also found two loaded

handguns, twenty-eight hypodermic needles, other digital scales, and plastic

bags containing powdered substances.

[3] On September 11, 2017, the State charged Sizemore with Level 4 felony dealing

in methamphetamine, Level 6 felony possession of a hypodermic needle, Level

6 felony possession of methamphetamine, and Level 6 felony maintaining a

common nuisance. Sizemore agreed to plead guilty to the dealing in

methamphetamine and possession of a hypodermic needle charges in exchange

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1707 | November 20, 2018 Page 2 of 5 for the dismissal of the other charges. On May 3, 2018, the trial court imposed

a ten-year sentence, with two years suspended to probation, for the dealing

conviction, to be served concurrently with a two-year sentence for the

possession of a hypodermic needle conviction. Sizemore now appeals.

Discussion and Decision [4] Sizemore’s sole argument on appeal is that the sentence imposed by the trial

court is inappropriate in light of the nature of the offenses and his character

pursuant to Indiana Appellate Rule 7(B). In considering an argument under

Rule 7(B), we must “conduct [this] review with substantial deference and give

‘due consideration’ to the trial court’s decision—since the ‘principal role of

[our] review is to attempt to leaven the outliers,’ and not to achieve a perceived

‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)

(quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal

citations omitted).

[5] Sizemore was convicted of one Level 4 felony, for which he faced a term of two

to twelve years imprisonment. Ind. Code § 35-50-2-5.5. The trial court

imposed a ten-year term, which is above the advisory six-year term but less than

the maximum twelve-year term. Sizemore was also convicted of one Level 6

felony, for which he faced a term of six months to two and one-half years, with

an advisory term of one year. I.C. § 35-50-2-7(b). The trial court imposed a

two-year term but ordered that it be served concurrently with the ten-year

sentence, for an aggregate ten-year term.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1707 | November 20, 2018 Page 3 of 5 [6] With respect to the nature of the offenses, Sizemore admitted that he regularly

sold seven grams of methamphetamine every three to five days, which far

exceeds the single occasion required to commit dealing in methamphetamine.

As the trial court noted, Sizemore is “a methamphetamine dealer, period, and a

serious one.” Tr. p. 61. Moreover, officers found twenty-eight hypodermic

syringes in his house, which far exceeds the single one required to commit the

Level 6 felony offense. We do not find that the nature of the offenses renders

Sizemore’s sentence inappropriate.

[7] As for the nature of Sizemore’s character, we note that the evidence shows that

he was earning close to $700 every three to five days. But notwithstanding that

income, he was nearly $30,000 in arrears on child support payments. Indeed,

he had not made a single voluntary child support payment since June 2014.

The last payment he made was in July 2015, which was garnished from a bond

he had posted for a failure-to-appear warrant issued as part of his child support

case.

[8] Sizemore’s criminal history includes a 1993 conviction for illegal consumption

of alcohol by a minor, for which he served a term of probation. In January

1998, he was charged with operating a vehicle while intoxicated, but this charge

was dismissed due to a deferral agreement. In November 2007, he entered into

a deferral agreement for a charge of misdemeanor battery. And at the time he

was sentenced in the present case, he was facing a charge of battery resulting in

bodily injury. While Sizemore’s criminal history is not the worst of the worst, it

shows that despite first, second, and third chances afforded to him by the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1707 | November 20, 2018 Page 4 of 5 criminal justice system to reform his behavior, he is either unable or unwilling

to do so. In light of his child support arrearage and criminal history, we do not

find that the nature of Sizemore’s character renders the sentence inappropriate.

[9] Sizemore also emphasizes the fact that he pleaded guilty, arguing that his guilty

plea warrants a reduced sentence. It is apparent from the record, however, that

his guilty plea was largely pragmatic rather than a genuine show of remorse,

given that the evidence of his guilt was overwhelming and the State dismissed

two felony charges in exchange for the guilty plea. In light of these factors, we

do not find that the guilty plea renders the sentence inappropriate.

[10] In sum, the aggregate ten-year sentence imposed by the trial court is not

inappropriate in light of the nature of the offenses and Sizemore’s character.

[11] The judgment of the trial court is affirmed.

May, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1707 | November 20, 2018 Page 5 of 5