Nicholas J. Schlueter v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 31, 2018
• Docket: 18A-CR-1259
• 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 Oct 31 2018, 10:41 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 R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General Madison, Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Nicholas J. Schlueter, October 31, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1259 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable James D. Worton, Appellee-Plaintiff Judge Trial Court Cause No. 03D01-1609-F2-5231

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1259 | October 31, 2018

Page 1 of 5 Case Summary [1] Nicholas Schlueter appeals the thirteen-year sentence imposed following his

guilty plea to level 3 felony dealing in methamphetamine. He contends that his

sentence is inappropriate in light of the nature of the offense and his character.

Concluding that he has not met his burden to demonstrate that his sentence is

inappropriate, we affirm.

Facts and Procedural History [2] On January 6, 2016, Schlueter sold ten grams or more of methamphetamine to

a confidential informant. On January 11, 2016, he again sold ten grams or

more of methamphetamine to the same informant. The State charged Schlueter

with two counts of level 2 felony dealing in methamphetamine. The State and

Schlueter subsequently entered into a plea agreement whereby Schlueter agreed

to plead guilty to one count of the lesser included offense of level 3 felony

dealing in methamphetamine in exchange for dismissal of the second count.

Following a sentencing hearing, the trial court sentenced Schlueter to thirteen

years executed in the Department of Correction. This appeal ensued.

Discussion and Decision [3] Schlueter invites this Court to reduce his sentence pursuant to Indiana

Appellate Rule 7(B), which provides that we may revise a sentence authorized

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1259 | October 31, 2018

Page 2 of 5 by statute if, after due consideration of the trial court’s decision, we find that the

sentence is “inappropriate in light of the nature of the offense and the character

of the offender.” The defendant bears the burden to persuade this Court that

his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

2006). As we assess the nature of the offense and character of the offender, “we

may look to any factors appearing in the record.” Boling v. State, 982 N.E.2d

1055, 1060 (Ind. Ct. App. 2013). 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, 1222 (Ind. 2008).

[4] 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 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. In conducting our review, we do not look to see “if another

sentence might be more appropriate; rather, the question is whether the sentence

imposed is inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App.

2007).

[5] Regarding the nature of the offense, the advisory sentence is the starting point

that the legislature has selected as an appropriate sentence for the crime

committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The advisory

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1259 | October 31, 2018

Page 3 of 5 sentence for a level 3 felony is between three and sixteen years with the

advisory being nine years. Ind. Code § 35-50-2-5. The trial court here imposed

a thirteen-year sentence which, although above the advisory, is still several

years below the maximum allowable sentence.

[6] Schlueter asserts that he is not deserving of “an aggravated sentence” because

no one “was physically injured in the commission” of his offense and there was

no indication that his “offense involved firearms, threats, or other egregious

behavior.” Appellant’s Br. at 12. However, the record indicates that he sold

more than ten grams of methamphetamine to a confidential informant. The

sale of this much methamphetamine would generally be a level 2 felony, which

carries a maximum sentence of thirty years. See Ind. Code § 35-50-2-4.5.

Schlueter received less than half that time, and we are unpersuaded by his

attempts to downplay the seriousness of his crime with his self-serving claim

that he was only the “middle man” for a larger distributor. Id. at 12. Nothing

about the nature of this offense warrants a sentence reduction.

[7] Schlueter does not fare any better when his character is considered. We note

that the character of the offender is found in what we learn of the offender’s life

and conduct. Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). Included

in that assessment is a review of an offender’s criminal history. Garcia v. State,

47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied (2016). Schlueter has

an extensive criminal history including both misdemeanor and felony

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1259 | October 31, 2018

Page 4 of 5 convictions. He has been granted probation on multiple occasions, only to

violate that probation and have it revoked. Despite his current claims that he is

in need of drug rehabilitative treatment rather than incarceration, the trial court

specifically noted that he has had prior opportunities for treatment outside a

penal facility to no avail. Accordingly, the trial court determined that any

rehabilitative treatment should occur in the Department of Correction. We are

inclined to agree. In sum, Schlueter has not met his burden to demonstrate that

the sentence imposed by the trial court is inappropriate in light of the nature of

his offense or his character. Accordingly, we affirm.

[8] Affirmed.

Najam, J., and Pyle, J., concur.

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