Mar 06 2015, 9:38 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald E.C. Leicht Gregory F. Zoeller
Kokomo, Indiana Attorney General of Indiana
Graham T. Youngs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John Norris, March 6, 2015
Appellant-Defendant, Court of Appeals Case No.
34A04-1410-CR-499
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable William C. Menges,
Judge
Appellee-Plaintiff.
Case No. 34D01-1312-FA-975
Vaidik, Chief Judge.
Case Summary
[1] John Norris sold ten hydrocodone pills for $6 each to a confidential informant
during a controlled buy. Norris was charged with a Class A felony and pled
guilty to Class B felony dealing in a controlled substance. The trial court
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sentenced him to twenty years, all executed. Norris now appeals his sentence,
arguing that it is inappropriate.
[2] Although Norris has a criminal history and was on probation when he
committed this offense, given the small amount of pills that were sold to a
confidential informant during a controlled buy, we find that a twenty-year
executed sentence is excessive. We therefore remand this case to the trial court
with instructions to impose a sentence of twelve years, with eight years
executed in the Indiana Department of Correction and four years suspended to
supervised probation.
Facts and Procedural History
[3] On October 3, 2013, Kokomo Police Department officers worked with a
confidential informant (“CI”) to set up a controlled buy. The CI contacted
Norris through text messages and telephone calls and told him that he wanted
to purchase “some tabs.” Appellant’s App. p. 15. Norris was on probation at
the time. Norris told the CI that he could sell him ten pills for $6 each. Norris
and the CI met at the Walgreens at the intersection of Washington Street and
Sycamore Street, which was within 1000 feet of Foster Park.
[4] At the meeting place, the CI gave Norris $60, and Norris handed him ten
hydrocodone pills. The controlled buy was videotaped.
[5] In December 2013 the State charged Norris with Count 1: Class A felony
dealing in a controlled substance (within 1000 feet of a public park) for the
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October 3rd controlled buy and Count 2: Class A felony dealing in a controlled
substance (within 1000 feet of school property) for a controlled buy—also
involving ten hydrocodone pills—that occurred the following day with the same
CI.1
[6] Norris and the State entered into a plea agreement. Norris pled guilty to Count
1 as a Class B felony. In exchange, the State agreed to dismiss Count 2 as well
as petitions to revoke Norris’s probation that had been filed in two cause
numbers. Id. at 25, 27. Norris’s sentence was “left to the discretion of the
Court after preparation of a Pre-Sentence Investigation report and argument
from counsel.” Id. at 25.
[7] In October 2014 the trial court held a combined guilty-plea and sentencing
hearing. As for the factual basis of the crime, Norris stipulated to the probable-
cause affidavit. Tr. p. 9-10. The judge accepted Norris’s guilty plea and entered
judgment of conviction for Class B felony dealing in a controlled substance. Id.
at 11.
[8] As for sentencing, Norris explained that he had been treated for a variety of
mental-health issues, including bi-polar disorder, PTSD, antisocial personality
disorder, and schizophrenia. At the time of sentencing, Norris was taking two
1
Under the amendments to our criminal code effective July 1, 2014, significant changes have been made to
the prior enhancement of dealing within 1000 feet of a public park or school property. See Ind. Code § 35-48-
1-16.5(3)(B); Ind. Code § 35-48-4-16 (as one example, the distance is now 500 feet).
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medications through the jail, Zoloft and Effexor. Norris also had physical-
health issues, including being treated for blood clots.
[9] The PSI shows that Norris has the following criminal history: one juvenile
adjudication (1998); Class D felony conspiracy to commit theft (2001); three
convictions for misdemeanor check deception (2004); misdemeanor possession
of marijuana (2005); Class D felony possession of marijuana (2008); Class A
misdemeanor battery resulting in bodily injury (2011); Class D felony
possession of marijuana (2012); and Class D felony possession of marijuana
(2014).
[10] The PSI also shows that Norris has had mixed results with probation. Norris
successfully completed probation in his 2001 conspiracy-to-commit-theft and
2004 check-deception cases. He also successfully completed home detention in
his 2005 possession-of-marijuana case. However, Norris violated probation in
his 2008 possession-of-marijuana case and was on probation in his 2012 and
2014 possession-of-marijuana cases when he committed this offense.
[11] Here, the probation department recommended a sentence of twelve years with
six years suspended to probation, including “participation in a Therap[e]utic
Community Program.” Appellant’s App. p. 52. Defense counsel thought that
the probation department’s recommendation was “fair” and wanted Norris to
“receive some [mental-health] treatment in the [DOC]” despite Norris’s request
that his sentence be served on home detention. Tr. p. 16. Defense counsel
believed that “going to the [DOC], attending their therapeutic program,
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receiving some mental[-]health treatment, not only in there but the drug
treatment in there, and then following up once he’s released with an extended
period of probation” would be in his “best interest.” Id. The State, while “not
opposed to a recommendation of the therapeutic community,” asked the trial
court to “aggravate the sentence further past 12 years.” Id. at 18.
[12] The trial court identified the following aggravators: (1) Norris’s criminal
history; (2) he was on probation in two different cause numbers when he
committed this offense; and (3) he was unsuccessful on community supervision
in the past. Id. The court identified Norris’s “health” as a mitigating factor but
found that it was not entitled to significant weight. Id. Concluding that the
aggravators substantially outweighed the mitigator, the trial court sentenced
Norris to twenty years executed in the DOC. When Norris committed this
offense, a person who committed a Class B felony could “be imprisoned for a
fixed term of between six (6) and twenty (20) years, with the advisory sentence
being ten (10) years.” Ind. Code Ann. § 35-50-2-5 (West 2012).
[13] Norris now appeals his sentence.
Discussion and Decision
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[14] Norris contends that his twenty-year executed sentence is inappropriate.2
“Appellate review of the merits of a sentence may be sought on the grounds
outlined in Appellate Rule 7(B).” Cardwell v. State, 895 N.E.2d 1219, 1223 (Ind.
2008). Under Indiana Appellate Rule 7(B), a reviewing court “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).
[15] Appellate Rule 7(B) leaves much to the discretion of appellate courts, but it
does not detract from the long-recognized principle that “sentencing is
principally a discretionary function in which the trial court’s judgment should
receive considerable deference.” Parks v. State, 22 N.E.3d 552, 555 (Ind. 2014)
(quotation omitted). In conducting review under this standard, our Supreme
Court has acknowledged that “‘reasonable minds may differ’” on the
appropriateness of a sentence based on their “‘sense of the 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. (quoting Buchanan v. State,
767 N.E.2d 967, 970 (Ind. 2002); Cardwell, 895 N.E.2d at 1224). In light of this
understanding, we exercise our authority to revise Norris’s sentence in this case.
[16] As for Norris’s character, we acknowledge that he has a criminal history that
includes four convictions for possession of marijuana and was on probation for
2
Norris also contends that the trial court abused its discretion in sentencing him. But given our resolution of
this case, we need not address that issue.
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two of those convictions when he committed this offense. However, Norris has
not spent a lot of time in the DOC. Many of his previous sentences were
suspended to probation. He has successfully completed probation in some
cases but not others.
[17] But what convinces us that Norris’s sentence is inappropriate and excessive is
the relatively innocuous nature of this offense. That is, Norris sold ten
hydrocodone tablets for $60 to a confidential informant during a controlled buy
that was closely monitored by the police. Given the small amount of drugs, we
find that the maximum twenty-year executed sentence is inappropriate. We
therefore remand this case to the trial court with instructions to impose a
sentence of twelve years, with eight years executed in the DOC and four years
suspended to supervised probation.
[18] Reversed and remanded.
Baker, J., and Riley, J., concur.
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