Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the May 09 2013, 8:41 am purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARIELENA DUERRING GREGORY F. ZOELLER Duerring Law Offices Attorney General of Indiana South Bend, Indiana KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
ELDON E. HARMON, ) ) Appellant-Defendant, ) ) vs. ) No. 20A05-1212-CR-634 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ELKHART CIRCUIT COURT The Honorable George W. Biddlecome, Judge Cause No. 20D03-0910-FA-47
May 9, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge Case Summary and Issues
Eldon E. Harmon appeals the trial court’s sentence of sixteen years for a Class B
felony conviction of dealing in methamphetamine. Harmon raises two expanded and
restated issues on appeal: 1) whether the trial court wrongly increased his sentence on
remand, and 2) whether the sentence was inappropriate in light of the nature of the
offense and Harmon’s character. Concluding that the sentence was neither wrongly
increased nor inappropriate, we affirm.
Facts and Procedural History
In 2009, Harmon was charged with dealing in methamphetamine as a Class A
felony. In 2011, a jury convicted Harmon of the offense, and Harmon was sentenced to
forty years with ten years suspended to probation, for a total of thirty executed years.
Harmon filed a direct appeal challenging the sufficiency of the evidence that elevated his
charge from a Class B felony to a Class A felony. We found the evidence to be
insufficient, and reversed and remanded with instructions for the trial court to enter a
conviction for dealing in methamphetamine as a Class B felony and to resentence
Harmon accordingly. Harmon v. State, 971 N.E.2d 674, 682 (Ind. Ct. App. 2012), trans.
denied.
In November 2012, following a resentencing hearing, the trial court sentenced
Harmon to sixteen years on the Class B felony. This appeal followed. Additional facts
will be supplied as necessary.
Discussion and Decision
I. Increased Sentence
Harmon first argues that his sentence was wrongly increased on remand. 2 It is well-established that when a defendant successfully challenges his conviction, the trial court may not impose a harsher sentence on remand absent changed circumstances. The rule is intended to curb the possible chilling effect upon a defendant’s right to appeal his conviction if he were faced with the prospect of a more severe sentence after retrial.
Barnett v. State, 599 N.E.2d 232, 233 (Ind. Ct. App. 1992) (citations and internal
quotation marks omitted). Harmon’s original sentence was for a Class A felony, for
which the potential range is between twenty and fifty years, with the advisory sentence
being thirty years. Ind. Code § 35-50-2-4. Upon remand, Harmon was sentenced for a
Class B felony, for which the potential range is between six and twenty years, with an
advisory sentence of ten years. Ind. Code § 35-50-2-5. Harmon argues that his sixteen
year sentence on remand is proportionally higher than his original thirty year executed
sentence because his sentence on remand was enhanced six years above the advisory
sentence, while his original Class A felony sentence was for an executed time equal to the
advisory sentence.
Firstly, as the State correctly points out, Harmon’s total sentence in each case was
eighty percent of the statutory maximum (forty years is eighty percent of fifty, and
sixteen years is eighty percent of twenty). Aside from proportionality, and most
importantly, Harmon’s new sentence of sixteen years is quantitatively less than his
original sentence of thirty years executed, and therefore could have no chilling effect on
the right to appeal. See Misztal v. State, 620 N.E.2d 37, 38-39 (Ind. Ct. App. 1993)
(holding, where the resentencing was proportionally greater, that there could be no
chilling effect because the sentence was nonetheless reduced to a fewer number of years
on resentencing).
3 Harmon also argues that the new sentence indicates that the court was vindictive.
Here Harmon conflates the prosecution and the court, arguing that misrepresentation of
facts, and a request of the maximum allowable sentence, by the State at the sentencing
hearing underscore a vindictive motive in sentencing. We note that any
misrepresentations appear to be relatively minor and there is no indication that they were
intentional. Further, zealous prosecution does not implicate the court in vindictive
sentencing. Here, the court declined to impose the maximum sentence of twenty years as
requested by the State, which counters Harmon’s implication.
Finally, Harmon argues that only changed circumstances may justify an increased
sentence on remand, and that no such circumstances were present here. We have already
determined that the sentence on remand was not in fact increased, but we take this
opportunity to note that the court largely reiterated the mitigating and aggravating factors
from the original Class A felony, but did take into consideration Harmon’s participation
in various programs while in jail and the Department of Correction in the interim; being
unfamiliar with the programs, the court was not able to assign them much value. We
have said before, under a previous sentencing scheme that made more overt use of
mitigating and aggravating factors, that there was no authority “for the proposition that a
resentencing court does not have the discretion to consider mitigating and aggravating
factors in light of the conviction on a lesser or different charge.” Misztal, 620 N.E.2d at
39. We see no reason here why the court could not re-evaluate factors in light of the
Class B felony when determining a sentence, especially where the overall resulting
sentence was shorter than the original. Harmon has clearly benefited from his original
appeal, and we find no error in the court’s sentence of sixteen years on remand. 4 II. Appropriateness of Sentence
A. Standard of Review
We are empowered by Indiana Appellate Rule 7(B) to revise a sentence “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.” The
burden is on the defendant to persuade us that his sentence has met this inappropriateness
standard of review. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). When
conducting this inquiry, we may look to any factors appearing in the record. Roney v.
State, 872 N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied.
B.
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the May 09 2013, 8:41 am purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARIELENA DUERRING GREGORY F. ZOELLER Duerring Law Offices Attorney General of Indiana South Bend, Indiana KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
ELDON E. HARMON, ) ) Appellant-Defendant, ) ) vs. ) No. 20A05-1212-CR-634 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ELKHART CIRCUIT COURT The Honorable George W. Biddlecome, Judge Cause No. 20D03-0910-FA-47
May 9, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge Case Summary and Issues
Eldon E. Harmon appeals the trial court’s sentence of sixteen years for a Class B
felony conviction of dealing in methamphetamine. Harmon raises two expanded and
restated issues on appeal: 1) whether the trial court wrongly increased his sentence on
remand, and 2) whether the sentence was inappropriate in light of the nature of the
offense and Harmon’s character. Concluding that the sentence was neither wrongly
increased nor inappropriate, we affirm.
Facts and Procedural History
In 2009, Harmon was charged with dealing in methamphetamine as a Class A
felony. In 2011, a jury convicted Harmon of the offense, and Harmon was sentenced to
forty years with ten years suspended to probation, for a total of thirty executed years.
Harmon filed a direct appeal challenging the sufficiency of the evidence that elevated his
charge from a Class B felony to a Class A felony. We found the evidence to be
insufficient, and reversed and remanded with instructions for the trial court to enter a
conviction for dealing in methamphetamine as a Class B felony and to resentence
Harmon accordingly. Harmon v. State, 971 N.E.2d 674, 682 (Ind. Ct. App. 2012), trans.
denied.
In November 2012, following a resentencing hearing, the trial court sentenced
Harmon to sixteen years on the Class B felony. This appeal followed. Additional facts
will be supplied as necessary.
Discussion and Decision
I. Increased Sentence
Harmon first argues that his sentence was wrongly increased on remand. 2 It is well-established that when a defendant successfully challenges his conviction, the trial court may not impose a harsher sentence on remand absent changed circumstances. The rule is intended to curb the possible chilling effect upon a defendant’s right to appeal his conviction if he were faced with the prospect of a more severe sentence after retrial.
Barnett v. State, 599 N.E.2d 232, 233 (Ind. Ct. App. 1992) (citations and internal
quotation marks omitted). Harmon’s original sentence was for a Class A felony, for
which the potential range is between twenty and fifty years, with the advisory sentence
being thirty years. Ind. Code § 35-50-2-4. Upon remand, Harmon was sentenced for a
Class B felony, for which the potential range is between six and twenty years, with an
advisory sentence of ten years. Ind. Code § 35-50-2-5. Harmon argues that his sixteen
year sentence on remand is proportionally higher than his original thirty year executed
sentence because his sentence on remand was enhanced six years above the advisory
sentence, while his original Class A felony sentence was for an executed time equal to the
advisory sentence.
Firstly, as the State correctly points out, Harmon’s total sentence in each case was
eighty percent of the statutory maximum (forty years is eighty percent of fifty, and
sixteen years is eighty percent of twenty). Aside from proportionality, and most
importantly, Harmon’s new sentence of sixteen years is quantitatively less than his
original sentence of thirty years executed, and therefore could have no chilling effect on
the right to appeal. See Misztal v. State, 620 N.E.2d 37, 38-39 (Ind. Ct. App. 1993)
(holding, where the resentencing was proportionally greater, that there could be no
chilling effect because the sentence was nonetheless reduced to a fewer number of years
on resentencing).
3 Harmon also argues that the new sentence indicates that the court was vindictive.
Here Harmon conflates the prosecution and the court, arguing that misrepresentation of
facts, and a request of the maximum allowable sentence, by the State at the sentencing
hearing underscore a vindictive motive in sentencing. We note that any
misrepresentations appear to be relatively minor and there is no indication that they were
intentional. Further, zealous prosecution does not implicate the court in vindictive
sentencing. Here, the court declined to impose the maximum sentence of twenty years as
requested by the State, which counters Harmon’s implication.
Finally, Harmon argues that only changed circumstances may justify an increased
sentence on remand, and that no such circumstances were present here. We have already
determined that the sentence on remand was not in fact increased, but we take this
opportunity to note that the court largely reiterated the mitigating and aggravating factors
from the original Class A felony, but did take into consideration Harmon’s participation
in various programs while in jail and the Department of Correction in the interim; being
unfamiliar with the programs, the court was not able to assign them much value. We
have said before, under a previous sentencing scheme that made more overt use of
mitigating and aggravating factors, that there was no authority “for the proposition that a
resentencing court does not have the discretion to consider mitigating and aggravating
factors in light of the conviction on a lesser or different charge.” Misztal, 620 N.E.2d at
39. We see no reason here why the court could not re-evaluate factors in light of the
Class B felony when determining a sentence, especially where the overall resulting
sentence was shorter than the original. Harmon has clearly benefited from his original
appeal, and we find no error in the court’s sentence of sixteen years on remand. 4 II. Appropriateness of Sentence
A. Standard of Review
We are empowered by Indiana Appellate Rule 7(B) to revise a sentence “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.” The
burden is on the defendant to persuade us that his sentence has met this inappropriateness
standard of review. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). When
conducting this inquiry, we may look to any factors appearing in the record. Roney v.
State, 872 N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied.
B. Nature of the Offense and Character of the Offender
The headings of Harmon’s brief relate to our review of a sentence for
inappropriateness. However, the body of his argument does not address this review, but
instead focuses only on the increased sentence detailed above. In a single sentence
relating to Harmon’s character, Harmon appears to argue that his character has changed
for the better since his original sentencing, apparently relying on his participation in
programs while in the Department of Correction, and Harmon’s statement at the 2012
resentencing that, if given a second chance, he would like to be a father to his children
and a productive member of society. We disagree that Harmon’s overall character, or the
nature of the offense, render his sixteen year sentence inappropriate.
The trial court’s judgment of conviction in 2011, reiterated at the 2012 sentencing,
included the following factors:
[Harmon] manufactured methamphetamine in a residential neighborhood, thus putting large numbers of people at risk from the deleterious effects of methamphetamine production. The court also notes that [Harmon] suffered 5 four adjudications of delinquency as a juvenile, one of which was for delivery of controlled substance; eleven misdemeanor convictions, several of which were controlled substance offenses; and two felony convictions, both of which involved substance abuse. In addition, [Harmon] has suffered multiple probation violations and community corrections violations, and has failed to appear for court proceedings on numerous occasions in the past. . . . In looking at [Harmon’s] substance abuse history, the court acknowledges that it is clear that [Harmon] has a substance abuse problem; however, [Harmon] was given the opportunity to address that problem at least twice—once through the Center for Problem Resolution, and later through Oaklawn Hospital. He either failed or refused to responsibly address his addiction; therefore, the court ascribes little weight to that circumstance.
Appellant’s Appendix at 45. These factors are still relevant, and support Harmon’s
enhanced Class B felony sentence of sixteen years. Harmon has failed to meet the
standard of review on this issue. Despite Harmon’s assertion that he now hopes to be a
better person, the overall nature of both his character and the offense leads us to conclude
that his sentence was not inappropriate.
Conclusion
Concluding that the trial court did not wrongly increase Harmon’s sentence on
remand, and that the sentence is not inappropriate in light of his character or the nature of
the offense, we affirm.
Affirmed.
FRIEDLANDER, J., and CRONE, J., concur.