MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 05 2019, 9:59 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
A. David Hutson Curtis T. Hill, Jr.
HUTSON LEGAL Attorney General of Indiana
Jeffersonville, Indiana
Josiah J. Swinney
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jerome Smith, June 5, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-205
v. Appeal from the Clark Circuit
Court
State of Indiana, The Honorable Bradley B. Jacobs,
Appellee-Plaintiff. Judge
Trial Court Cause No.
10C02-1701-F3-3
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-205 | June 5, 2019 Page 1 of 5
Case Summary
[1] Jerome Smith (“Smith”) pled guilty to Dealing in Methamphetamine, as a
Level 3 felony.1 He presents a single issue on appeal: whether his seven-year
sentence, with two years suspended to probation, is inappropriate. We affirm.
Facts and Procedural History
[2] On January 4, 2017, Smith called a Jeffersonville, Indiana undercover police
officer and agreed to deliver methamphetamine to a local motel. Smith arrived
at the designated meeting place and, in exchange for $350.00, produced five
individual packages that contained methamphetamine in the aggregate amount
of eight grams. Smith was subsequently arrested and charged with dealing in
methamphetamine and possession of methamphetamine.
[3] On November 28, 2018, Smith pled guilty to dealing in methamphetamine and
the possession charge was dismissed. On January 17, 2019, the trial court
sentenced Smith to seven years imprisonment, with two years suspended to
probation. Smith now appeals.
1
Ind. Code § 35-48-4-1.1.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-205 | June 5, 2019 Page 2 of 5
Discussion and Decision
[4] Pursuant to Indiana Code Section 35-50-2-5, the sentencing range for a Level 3
felony is three to sixteen years, with an advisory sentence of nine years. Smith
received a sentence that is two years less than the advisory, with an additional
two years suspended to probation. He asks that we revise his sentence to three
years, entirely suspended to probation, in light of his guilty plea, medical issues,
and difficult childhood. He focuses primarily upon his diagnoses of congestive
heart failure and chronic kidney disease, arguing that his sentence is a de facto
life sentence.
[5] We “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). We assess the trial court’s recognition or non-recognition
of aggravators and mitigators as an initial guide to determining whether the
sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind.
Ct. App. 2006). Here, the trial court recognized as aggravators that Smith has a
significant criminal history and he was charged with crimes under other cause
numbers in Kentucky and Indiana while on bond for this case. In mitigation,
the trial court found that Smith pled guilty to the highest charge against him, he
has poor health, and incarceration would cause him significant hardship. In
imposing the less-than-advisory sentence, the trial court found that the
mitigators slightly outweighed the aggravators.
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[6] 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, 1224 (Ind.
2008). 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 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. at 1224. Deference to the trial court “prevail[s] unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[7] As to the nature of the offense, Smith contacted an undercover police officer to
arrange a methamphetamine sale at a local motel, and then produced eight
grams of methamphetamine. Dealing in methamphetamine is a Level 3 offense
if the amount of methamphetamine involved is more than five grams and less
than ten grams. I.C. § 35-48-4-1.1(d). Thus, Smith sold three grams more than
the minimum amount qualifying as a Level 3 felony.
[8] As to Smith’s character, the decision to plead guilty indicates some acceptance
of responsibility for his actions. However, he has a significant criminal history,
consisting of thirteen misdemeanors and two felonies. Some of these
convictions occurred while Smith was released on bond in this case; that is, he
was charged with and convicted in Kentucky of fourth degree domestic assault,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-205 | June 5, 2019 Page 4 of 5
an unlawful taking, and two counts of terroristic threatening. Also while on
bond, he was convicted in Clark County, Indiana, of theft as a Level 6 felony.
Finally, he was arrested on August 4, 2017, on Kentucky charges of second
degree burglary and violating an emergency protective order or a domestic
violence order.
[9] Smith does, as the trial court found, suffer from medical conditions that will
increase the hardship of incarceration. The trial court imposed a lenient
sentence of two years less than the advisory sentence, and suspended two years
to probation. The nature of Smith’s offense and his character do not militate
toward further leniency. To the extent that Smith suggests the costs of
incarcerating a terminally ill person outweigh any benefit to the public, or that
his sentence should be reviewable on compassionate release grounds, these
considerations are more properly directed to other branches of government.
Conclusion
[10] Smith has not demonstrated that his sentence is inappropriate in light of the
nature of his offense and his character.
[11] Affirmed.
Riley, J., and Pyle, J., concur.
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