Jerome Smith v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 5, 2019
• Docket: 19A-CR-205
• 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 Jun 05 2019, 9:59 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 A. David Hutson Curtis T. Hill, Jr. HUTSON LEGAL Attorney General of Indiana Jeffersonville, Indiana Josiah J. Swinney Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jerome Smith, June 5, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-205 v. Appeal from the Clark Circuit Court State of Indiana, The Honorable Bradley B. Jacobs, Appellee-Plaintiff. Judge Trial Court Cause No. 10C02-1701-F3-3

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-205 | June 5, 2019 Page 1 of 5 Case Summary [1] Jerome Smith (“Smith”) pled guilty to Dealing in Methamphetamine, as a

Level 3 felony.1 He presents a single issue on appeal: whether his seven-year

sentence, with two years suspended to probation, is inappropriate. We affirm.

Facts and Procedural History [2] On January 4, 2017, Smith called a Jeffersonville, Indiana undercover police

officer and agreed to deliver methamphetamine to a local motel. Smith arrived

at the designated meeting place and, in exchange for $350.00, produced five

individual packages that contained methamphetamine in the aggregate amount

of eight grams. Smith was subsequently arrested and charged with dealing in

methamphetamine and possession of methamphetamine.

[3] On November 28, 2018, Smith pled guilty to dealing in methamphetamine and

the possession charge was dismissed. On January 17, 2019, the trial court

sentenced Smith to seven years imprisonment, with two years suspended to

probation. Smith now appeals.

1 Ind. Code § 35-48-4-1.1.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-205 | June 5, 2019 Page 2 of 5 Discussion and Decision [4] Pursuant to Indiana Code Section 35-50-2-5, the sentencing range for a Level 3

felony is three to sixteen years, with an advisory sentence of nine years. Smith

received a sentence that is two years less than the advisory, with an additional

two years suspended to probation. He asks that we revise his sentence to three

years, entirely suspended to probation, in light of his guilty plea, medical issues,

and difficult childhood. He focuses primarily upon his diagnoses of congestive

heart failure and chronic kidney disease, arguing that his sentence is a de facto

life sentence.

[5] 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 character of the offender.” Ind.

Appellate Rule 7(B). We assess the trial court’s recognition or non-recognition

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). Here, the trial court recognized as aggravators that Smith has a

significant criminal history and he was charged with crimes under other cause

numbers in Kentucky and Indiana while on bond for this case. In mitigation,

the trial court found that Smith pled guilty to the highest charge against him, he

has poor health, and incarceration would cause him significant hardship. In

imposing the less-than-advisory sentence, the trial court found that the

mitigators slightly outweighed the aggravators.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-205 | June 5, 2019 Page 3 of 5 [6] 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 v. State, 895 N.E.2d 1219, 1224 (Ind.

2008). The principal role of appellate review is to attempt to “leaven the

outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

end of the day turns on “our sense of culpability of the defendant, the severity

of the crime, the damage done to others, and myriad other factors that come to

light in a given case.” Id. at 1224. 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).

[7] As to the nature of the offense, Smith contacted an undercover police officer to

arrange a methamphetamine sale at a local motel, and then produced eight

grams of methamphetamine. Dealing in methamphetamine is a Level 3 offense

if the amount of methamphetamine involved is more than five grams and less

than ten grams. I.C. § 35-48-4-1.1(d). Thus, Smith sold three grams more than

the minimum amount qualifying as a Level 3 felony.

[8] As to Smith’s character, the decision to plead guilty indicates some acceptance

of responsibility for his actions. However, he has a significant criminal history,

consisting of thirteen misdemeanors and two felonies. Some of these

convictions occurred while Smith was released on bond in this case; that is, he

was charged with and convicted in Kentucky of fourth degree domestic assault,

Court of Appeals of Indiana | Memorandum Decision 19A-CR-205 | June 5, 2019 Page 4 of 5 an unlawful taking, and two counts of terroristic threatening. Also while on

bond, he was convicted in Clark County, Indiana, of theft as a Level 6 felony.

Finally, he was arrested on August 4, 2017, on Kentucky charges of second

degree burglary and violating an emergency protective order or a domestic

violence order.

[9] Smith does, as the trial court found, suffer from medical conditions that will

increase the hardship of incarceration. The trial court imposed a lenient

sentence of two years less than the advisory sentence, and suspended two years

to probation. The nature of Smith’s offense and his character do not militate

toward further leniency. To the extent that Smith suggests the costs of

incarcerating a terminally ill person outweigh any benefit to the public, or that

his sentence should be reviewable on compassionate release grounds, these

considerations are more properly directed to other branches of government.

Conclusion [10] Smith has not demonstrated that his sentence is inappropriate in light of the

nature of his offense and his character.

[11] Affirmed.

Riley, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-205 | June 5, 2019 Page 5 of 5