MEMORANDUM DECISION
Jul 06 2015, 10:40 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Leeman Gregory F. Zoeller
Leeman Law Offices Attorney General of Indiana
Logansport, Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ronald Lambert, July 6, 2015
Appellant-Defendant, Court of Appeals Case No.
25A03-1412-CR-462
v. Appeal from the Fulton Superior
Court
State of Indiana, The Honorable Wayne E. Steele,
Judge
Appellee-Plaintiff
Case Nos. 25D01-1311-FB-728 and
25D01-1203-FB-185
Vaidik, Chief Judge.
Case Summary
[1] Ronald Lambert pled guilty to Class B felony dealing in a schedule II controlled
substance; the plea agreement provided that the trial court would determine the
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sentence. The trial court sentenced Lambert to eighteen years, with fifteen
years executed in the Indiana Department of Correction and three years
suspended to probation. Lambert now appeals his sentence, arguing that the
trial court abused its discretion in not identifying two mitigating factors and that
his sentence is inappropriate under Indiana Appellate Rule 7(B). We affirm.
Facts and Procedural History
[2] In early March 2012, Deputy Travis Heishman of the Fulton County Sheriff’s
Department was contacted by concerned citizens who had observed “vehicular
traffic and possible activity going on at the Lamberts’ residence.” Tr. p. 56.
Following a controlled buy at the Lambert house by a confidential informant, a
search warrant was issued. The search uncovered 125 firearms, 1400 pills that
were classified as controlled substances, 3600 other miscellaneous pills, and
$4000 in cash. Lambert was charged under Cause No. 25D01-1203-FB-185
(“FB-185”) with Count I – Class B felony dealing in a controlled substance and
Count II – Class D felony possession of a controlled substance. Lambert posted
a $40,000 surety bond and was released.
[3] Then, in the spring of 2013, the Sheriff’s Department began receiving calls
again about the Lambert house – “traffic going in and out, basically just
consistent with what we had in 2012.” Id. at 11. In November, several
controlled buys were conducted at the Lambert residence, including one on
November 13 in which a confidential informant was provided with a recording
device and $100.00. The informant went to the Lambert residence and
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purchased 5 IR-15s from Lambert. 1 Appellant’s App. p. 122. Five days later a
search warrant was obtained to search the Lambert residence. The search
uncovered, from Lambert’s bedroom, several firearms, two twenty-dollar bills
that were identified as buy money from a previous controlled buy, and
prescription medications – including morphine sulphate extended release, a
schedule II controlled substance, and 30 mg Oxycontin. The pills were located
inside of prescription bottles, some of which were missing their labels.
[4] In November 2013, before his trial in FB-185, Lambert was charged under
cause number 25D01-1311-FB-728 (“FB-728”) with Count I - Class B felony
dealing in a schedule II controlled substance and Count II – Class D felony
possession of a schedule II controlled substance. Lambert’s bond in FB-185
was revoked, and Lambert was held without bail in FB-728. Lambert and the
State entered into a written plea agreement that covered the charges in both
cases: Lambert pled guilty to Class B felony dealing in a schedule II controlled
substance—Oxycodone—under FB-728, in exchange for which the State agreed
to dismiss all remaining counts in both FB-185 and FB-728. The plea
agreement provided that the trial court would determine Lambert’s sentence.
[5] A sentencing hearing was held in December 2014. At this hearing, the trial
court accepted Lambert’s guilty plea and entered judgment of conviction for
Class B felony dealing in a schedule II controlled substance. In sentencing
1
An “IR-15” refers to a 15 mg pill of Oxycodone, a schedule II controlled substance. The CI purchased five
IR-15s with the $100.00.
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Lambert, the trial court gave a lengthy explanation for its sentencing decision
and discussed the aggravating and mitigating circumstances it identified in
detail. The court identified the following aggravating circumstances: (1) the
nature and circumstances of the offense, specifically the quantity of drugs
recovered, the presence of firearms, and evidence that this was an organized
business enterprise with far-reaching consequences; (2) Lambert’s prior criminal
history, including a felony conviction for burglary; and (3) Lambert was out on
bond for the same offense when he committed this offense. Tr. p. 77-78. As to
the third aggravator, the trial court remarked, “I don’t think [there] can be any
more blatant disregard of the law than to do something like that.” Id. at 78. As
mitigators, the trial court noted Lambert’s age (seventy-four years old), health
issues, and that he pled guilty, though the trial court found that to be “more of a
pragmatic decision on his behalf.” Id. at 77.
[6] Following the sentencing hearing, Lambert received a sentence of eighteen
years, with fifteen years executed in the Department of Correction and three
years suspended to probation.
[7] Lambert now appeals his sentence.
Discussion and Decision
[8] On appeal, Lambert contends that the trial court abused its discretion in
sentencing him and that his sentence is inappropriate in light of his character
and the nature of his offense.
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I. Abuse of Discretion
[9] Lambert argues first that the trial court abused its discretion when it failed to
consider as mitigating circumstances that Lambert was a good candidate for
alternative forms of punishment and that he was unlikely to reoffend.
Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal for an abuse of discretion. Anglemyer v. State, 868 N.E.2d
482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of
discretion occurs if the decision is clearly against the logic and effect of the facts
and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom. Id. For instance, an abuse of discretion has
been found where the trial court: fails to enter a sentencing statement at all;
enters a sentencing statement that explains the reasons for imposing a
sentence—including a finding of aggravating and mitigating factors, if any—but
the record does not support the reasons; enters a sentencing statement that
omits reasons that are clearly supported by the record and advanced for
consideration; or where the reasons given are improper as a matter of law. Id.
at 490-91. An allegation that the trial court failed to identify or find a
mitigating factor requires the defendant to establish that the mitigating evidence
is both significant and clearly supported by the record. Id. at 493.
[10] On appeal, Lambert asserts that the trial court abused its discretion when it
failed to identify as mitigators that he was unlikely to reoffend based on his low
to moderate scores on the Indiana Risk Assessment System Tool and that he
was a poor candidate for incarceration. The State argues that Lambert has
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waived this argument by failing to proffer these mitigating circumstances to the
trial court.
[11] At the sentencing hearing, defense counsel stated the following:
If we look at your own probation officer’s statement, the substance
abuse, peer associations, criminal attitude, behavior under the IRIS is
low in those particular areas; and as far as criminal history, education,
does not exceed moderate. . . . I have his daughter here today who is
willing to allow him to stay at her location on in-home detention until
such time as arrangements can be made to take him outside of his
property where this is at. . . . The question here today, Judge, is what
is appropriate. What is appropriate for a person who has lived the last
forty-five years a law-abiding life up until this particular arrest, what is
appropriate for a 74-year-old individual?
Tr. p. 75-76. So Lambert did mention the IRIS results and he did inform the
court that he could stay with his daughter on home-detention. We find that
Lambert did not waive these arguments. Nonetheless, the trial court did not
abuse its discretion by failing to consider them because Lambert has failed to
show that these factors are both significant and clearly supported by the record.
See Anglemyer, 868 N.E.2d at 493. Indeed, given that Lambert was out on bond
for possession and dealing in a controlled substance when he committed the
very same offenses a year later, the record would not seem to support these
arguments at all. As articulated by the State,
[Lambert]’s conduct clearly evinces that he is highly likely to reoffend
if given the opportunity because he has a blatant disregard for the law.
Alternative forms of punishment will not deter [Lambert] because he
has previously committed the very same offenses repeatedly from
inside his home. There is only one way to ensure that [Lambert] does
not resume dealing in illegal prescription pills again from any location
and that is incarceration.
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Appellee’s Br. p. 14. We find that the trial court did not abuse its discretion in
not identifying these as mitigators.
II. Inappropriate Sentence
[12] Next Lambert contends that his eighteen-year sentence with fifteen years
executed and three years suspended to probation is inappropriate in light of his
character and the nature of his offense, and he asks us to revise it to a ten-year
sentence with four years suspended to probation. The Indiana Constitution
authorizes independent appellate review and revision of a trial court’s
sentencing decision. Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014). We implement
this authority through Indiana Appellate Rule 7(B), which provides that we
may revise a sentence authorized by statute if, after due consideration of the
trial court’s decision, we find the sentence is inappropriate in light of the nature
of the offense and the character of the offender. Id. Sentencing is principally a
discretionary function in which the trial court’s judgment should receive
considerable deference. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).
As such, in reviewing a sentence, this Court seeks to “leaven the outliers . . . but
not to achieve a perceived ‘correct’ result in each case.” Id. at 1225. Lambert
bears the burden on appeal of showing us that his sentence is inappropriate.
Brock v. State, 983 N.E.2d 636, 642 (Ind. Ct. App. 2013), reh’g denied.
[13] When Lambert committed this offense, the sentencing range for a Class B
felony was between six and twenty years, with an advisory sentence of ten
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years. Ind. Code Ann. § 35-50-2-5(a) (West 2012). Thus, Lambert was ordered
to serve five years executed above the advisory sentence.
[14] Concerning the nature of the offense, Lambert possessed and sold large
quantities of prescription drugs as an ongoing business enterprise.
[15] Concerning the character of the offender, Lambert in FB-728 committed the
same offense for which he was out on bond in FB-185. As argued by the State
at the sentencing hearing, “Even though he had major felony cases pending
against him for that exact same thing, he goes right back in business and
commits the same offenses and dumps the same poison into the community.
So that, to me, is his character.” Tr. p. 73. Although he pled guilty, the trial
court found that to be “more of a pragmatic decision on his behalf” than a true
recognition of culpability. Id. at 77. Indeed, at his initial hearing in FB-728,
Lambert stated, “I’d swear on my momma’s grave that it wasn’t nothing there
in my house.” Id. at 3. In the presentence investigation report, Lambert’s
version of the offense was as follows: “People came to me ill & claim that there
[sic] medication was not working well for them. I was asked if I could be of
help & I offered & gave them some of my medication to assist them with their
pain.” Appellant’s App. p. 150. Thus, he still seems unwilling to accept
responsibility for his behavior and the damage he has likely caused through his
criminal activity. The trial court also noted Lambert’s prior criminal history,
including a 1959 burglary conviction and 1962 parole violation: “The
convictions are many years ago but still reflect on his character.” Id. at 66.
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[16] In light of the nature of the offense and his character, Lambert has failed to
persuade us that his eighteen-year sentence, with fifteen years executed and
three years suspended to probation, is inappropriate.
Affirmed.
Kirsch, J., and Bradford, J., concur.
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