Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
Mar 15 2012, 9:13 am
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata, CLERK
of the supreme court,
collateral estoppel, or the law of the case. court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LEANNA WEISSMANN GREGORY F. ZOELLER
Lawrenceburg, Indiana Attorney General of Indiana
GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CHARLES R. SMITH, )
)
Appellant-Defendant, )
)
vs. ) No. 78A04-1110-CR-585
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE SWITZERLAND CIRCUIT COURT
The Honorable W. Gregory Coy, Judge
Cause No. 78C01-1003-FB-107
March 15, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Charles R. Smith pleaded guilty pursuant to a plea agreement to class B felony dealing
in a Schedule II controlled substance. The trial court sentenced him to a ten-year sentence,
with one year suspended. The court also ordered that this sentence be served consecutively
to the sentence imposed for a separate criminal conviction emanating from Ohio County.
Smith contends on appeal that the sentence is inappropriate.
We affirm.
The facts are that on March 25, 2010, Smith knowingly possessed with intent to
deliver 180 tablets of oxycodone, a Schedule II controlled substance. Police also discovered
a quantity of methodone hydrochloride pills. A search warrant was executed on Smith’s
home on that date, resulting in the discovery not only of the aforementioned oxycodone, but
also of $10,700, $4000 of which Smith admitted were the proceeds of drug sales. He
admitted to the officers on the scene that he had been selling drugs for approximately two
years and that he purchased oxycodone from a source in Detroit, Michigan and methadone
hydrochloroide from a source in Cincinnati, Ohio.
Following his arrest, Smith was charged with three counts of dealing in a Schedule II
controlled substance as class B felonies, two counts of possession of a controlled substance
as class D felonies, and maintaining a common nuisance, also as a class D felony. He
entered into a plea agreement in which he pleaded guilty to one count of dealing in a
Schedule II controlled substance in exchange for the State’s agreement to drop the remaining
charges. The parties further agreed that the sentence would be capped at ten years. Smith
was sentenced on October 4, 2011, by which time he was incarcerated and serving a twenty-
year sentence imposed for his November 9, 2010 conviction in Ohio County, Indiana of
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dealing in a Schedule II controlled substance. The sentence for the Ohio County offense was
imposed on March 18, 2011. The court imposed a ten-year sentence with one year suspended
and ordered that the sentence be served consecutively to the sentence imposed for the Ohio
County conviction.
Smith contends his ten-year sentence with one year suspended is inappropriate in light
of his character and the nature of his offense. Article 7, section 4 of the Indiana Constitution
grants our Supreme Court the power to review and revise criminal sentences. Pursuant to
Ind. Appellate Rule 7, the Supreme Court authorized this court to perform the same task.
Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008). Per App. R. 7(B), we may 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.” Wilkes
v. State, 917 N.E.2d 675, 693 (Ind. 2009), cert. denied, 131 S.Ct. 414 (2010). “[S]entencing
is principally a discretionary function in which the trial court’s judgment should receive
considerable deference.” Cardwell v. State, 895 N.E.2d at 1223. Smith bears the burden on
appeal of persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d
1073 (Ind. 2006).
With regard to the nature of the offense, Smith had been dealing drugs for
approximately two years at the time he was arrested for the instant offense. Smith’s illegal
drug enterprise regularly crossed two state lines, as his identified sources were located in
Michigan and Ohio. When the search warrant was executed, police discovered more than
$10,000 hidden in a baseboard in the home in which he lived, $4000 of which he admitted
were the proceeds of drug sales. Moreover, he admitted that if he had sold the oxycodone
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then found in his possession he would have realized an additional $15,000 in proceeds. It
appears, therefore, that his drug enterprise was not a small one.
Turning now to the character of the offender, we note that Smith pleaded guilty to the
instant offense. The trial court accorded this some mitigating weight because it saved
taxpayers the expense of a trial. We agree, although we are also mindful that the evidence of
guilt was strong and Smith received a significant benefit for his guilty plea by virtue of the
State’s agreement to dismiss the remaining charges and cap his sentence at the advisory
amount. This tends to diminish the mitigating value of the plea. See Wells v. State, 836
N.E.2d 475, 479 (Ind. Ct. App. 2005) (“a guilty plea does not rise to the level of significant
mitigation ... where the evidence against him is such that the decision to plead guilty is
merely a pragmatic one”), trans. denied. We note Smith’s argument that we should consider
the fact that he has behaved well while in prison. Our Supreme Court has rejected this
proffered mitigating factor by observing that “this is expected of persons who are
incarcerated.” Corcoran v. State, 774 N.E.2d 495, 500 (Ind. 2002).
We note also Smith’s argument that we should find mitigating weight in the fact that
he became “very addicted” to prescription pain medicine as a result of a painful back
condition he experienced while in high school, and that “he required more and more of the
pills to keep the pain at bay.” Appellant’s Brief at 11. Although we might consider such as a
factor in mitigation for an offense involving the use of a Schedule II controlled substance, we
are not inclined to view it that way when the offense involved is a multi-state drug dealing
operation. We also note Smith’s criminal history, which includes a juvenile true finding for
criminal mischief when he was sixteen years old, an adult conviction for reckless driving as a
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B misdemeanor, and the Ohio County dealing in a Schedule II controlled substance as a class
B felony. This is certainly not an extensive criminal history but the recent drug conviction in
Ohio County is troubling because of what it reflects about the scope of Smith’s drug dealing
operation. Considering all of these factors together, we agree with the trial court that in light
of the circumstances of this offense and Smith’s character, the advisory ten-year sentence is
appropriate.
Finally, we address Smith’s claim that the imposition of the sentence consecutively to
the sentence for the Ohio County conviction resulted in an inappropriate aggregate sentence.
We note that Smith does not challenge the imposition of this sentence consecutively to the
Ohio County sentence on grounds that it is unauthorized by statute or is not supported by
aggravating circumstances. Rather, he contends that the aggregate thirty-year sentence
effectively resulting therefrom is inappropriate. We reject this challenge to appropriateness
on the same grounds we cited to reject the challenge to the appropriateness of the ten-year
sentence. That is, Smith masterminded an ongoing, multi-state drug-dealing enterprise
involving both oxycodone and methadone hydrochloride pills. The enterprise, which had
been active for one and one-half to two years at the time of his arrest, apparently made
thousands of dollars per week. We cannot say that the aggregate sentence resulting from the
consecutive imposition of the instant sentence is inappropriate.
Judgment affirmed.
RILEY, J., and MATHIAS, J., concur.
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