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.
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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
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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
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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
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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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