MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jan 28 2020, 10:56 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
Stephen Gerald Gray Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Ian McLean
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jamal R. Smith, January 28, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-881
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff Alicia Gooden, Judge
The Honorable
Richard Hagenmaier, Magistrate
Trial Court Cause No.
49G21-1710-F2-42053
Vaidik, Judge.
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Case Summary
[1] Jamal R. Smith appeals his convictions and sentence for Level 2 felony dealing
in a narcotic drug and Class B misdemeanor possession of marijuana.
Specifically, Smith contends that (1) the trial court erred by admitting evidence
from searches he claims violated the Fourth Amendment to the United States
Constitution, (2) the trial court erred by admitting a recording of his on-scene
interview in violation of the Fifth Amendment to the United States
Constitution, (3) the trial court erred in finding him to be a habitual offender
when he did not personally waive his right to a jury trial for the habitual-
offender charge, and (4) his sentence is inappropriate in light of the nature of
the offenses and his character. We affirm the convictions but reverse the trial
court’s habitual-offender finding and the twenty-year enhancement imposed as
a result and remand this case to the trial court for further proceedings.
Facts and Procedural History
[2] In 2010, Smith was convicted of Class B felony dealing in cocaine and
sentenced to ten years executed in the Department of Correction. In March
2017, the trial court modified Smith’s sentence so that he would be released on
parole. As part of his parole, Smith agreed to abide by several conditions,
including that he would obtain written permission from his parole officer before
changing his residence, that he would not possess controlled substances, and
that he would not engage in conduct prohibited by federal or state law or local
ordinance. See Suppression Hr’g Ex. 1. Smith also agreed
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that my person and residence or property under my control may
be subject to reasonable search by my supervising officer or
authorized official of the Department of Correction if the officer
or official has reasonable cause to believe that the parolee is
violating or is in imminent danger of violating a condition to
remaining on parole.
Id.
[3] Initially, Smith requested to live at a house on White Avenue in Indianapolis,
but his parole officer denied that request. Instead, Smith’s parole officer
approved him to live only at a house on Goodlet Avenue. In October 2017,
Smith’s parole officer received hospital-discharge documents showing that
Smith’s address was on White Avenue. Thereafter, Smith’s parole officer
requested a compliance check of the White Avenue address, suspecting that
Smith was in violation of his parole by living at an unapproved address.
[4] On October 27, four parole officers went to the house on White Avenue. When
they arrived, they knocked on the door and identified themselves as parole
officers. After about five minutes, Smith came to the door. When he opened
the door, the parole officers immediately smelled marijuana. Smith was
dressed only in his underwear and told the parole officers that he had just
woken up. The parole officers explained why they were there, and Smith let
them inside. Once inside, the parole officers went through the house to see if
anyone else was inside. During this sweep, one of the parole officers saw
marijuana and paraphernalia on a table in one of the rooms. After they
completed their sweep and found that no one else was inside the home, the
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parole officers called the Indianapolis Metropolitan Police Department to report
their discovery of marijuana and paraphernalia.
[5] Detective Christopher Cooper responded, and once he arrived, the parole
officers took him to the room where they had seen the marijuana and
paraphernalia. Detective Cooper then went to his police car and began
applying for a search warrant. As Detective Cooper was completing the
application for a search warrant, other IMPD officers arrived and waited
outside the house. Once the search warrant was granted, Detective Cooper
went back inside, turned on his recording device, and read the search warrant
and Smith’s Miranda rights to him. After he finished, the following exchange
occurred:
Detective Cooper: Okay, alright, want to talk to me about
anything in this house right now?
Smith: No.
Detective Cooper: Alright, I’ll come talk to you here in a
minute, if you have any questions just ask
me.
Ex. 25, Int. 3 at 1:24-1:27 (recorded on scene). Detective Cooper then searched
Smith, who is paralyzed and confined to a wheelchair, and his chair. Inside the
wheelchair’s cushion, Detective Cooper found $2,960. Another IMPD officer
felt a large lump inside a different seat cushion in a laundry basket. He opened
the cushion and found bundles of cash totaling approximately $50,000. A third
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IMPD officer searched the front closet. While he was searching, a bag of white
powder, a sock, and a scale fell out of the closet. The powder was later
analyzed and found to be 176.30 grams of heroin and fentanyl. IMPD officers
also found numerous documents belonging to Smith, including a certificate of
title to his car, a bank statement addressed to Smith, his birth certificate, and his
Social Security card. See Exs. 19-22. Throughout the search, Smith told the
officers that the money and marijuana belonged to his brother, Jamil Buchanan,
and that the heroin and fentanyl was not his.
[6] At some point during the search, Buchanan arrived and told the officers that his
mother (who is also Smith’s mother) owns the White Avenue house and that
Buchanan rented it from her. As Buchanan arrived, one of the officers
remarked, in Smith’s presence, “I say you snatch his brother up too since he
said it’s his brother’s weed.” Ex. 25, Int. 4 at 43:25. When Smith again
claimed that the marijuana was his brother’s, the same IMPD officer said, “so
it’s your brother’s? Where’s he at, snatch his ass up.” Id. at 44:49. Detective
Cooper then interviewed Buchanan. After reading him his Miranda rights,
Detective Cooper told him what they had found inside the house. Detective
Cooper also told Buchanan that Smith claimed that neither the drugs nor the
money belonged to Smith. Thereafter, Buchanan and Smith got into an
argument over why Smith did not change his address and, eventually, Smith
admitted that “all the drugs” belonged to him. Ex. 25, Int. 5 at 30:03.
[7] Smith and Buchanan’s mother then arrived at the house. Smith told her that
the police had found drugs and that the drugs were his. His mother began
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crying and told Smith, “you gotta get out of this house.” Id. at 36:35-36:40.
Detective Cooper told Smith’s mother that Smith initially claimed that the
marijuana and money belonged to Buchanan. In response, Smith began
shouting at the officers, claiming that he did not say that the marijuana and
money were Buchanan’s. In the midst of his rant, Smith said, “I ain’t
answering no more questions man cause ya’ll twist around my story. Ya’ll
making me seem like I’m on some b*llsh*t.” Id. at 37:25. Smith continued
shouting that he did not live at the house on White Avenue and that the drugs
and money were not his. See id. at 38:55. Officers then arrested Smith and
allowed Buchanan and their mother to leave.
[8] The State charged Smith with Level 2 felony dealing in a narcotic drug (heroin),
Level 3 felony possession of a narcotic drug (heroin), Class A misdemeanor
dealing in marijuana, and Class B misdemeanor possession of marijuana. In
January 2018, the State filed a Notice of Intent to File Habitual Offender
Enhancement. However, it did not actually file a charge alleging that Smith is a
habitual offender at that time. Before trial, Smith filed a motion to suppress the
evidence found during the searches of the White Avenue house. He argued that
the parole officers’ search of the house (which formed the basis for the warrant
obtained by Detective Cooper) violated the Fourth Amendment to the United
States Constitution. The State responded that the parole officers’ search of the
White Avenue house was permissible because Smith had agreed to such a
search as part of his parole. See Suppression Hr’g Ex. 1. The trial court denied
the motion to suppress. In November 2018, Smith waived his right to a jury
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trial. In December 2018, the State filed the habitual-offender charge. There
was no initial hearing and no waiver of a jury trial on the habitual-offender
charge.
[9] A month later, the case proceeded to a bench trial, where Smith objected to all
of the evidence obtained from the searches of the White Avenue house. He
renewed his argument that the parole officers’ search, which led to a call to
IMPD and an application for a warrant, violated the Fourth Amendment to the
United States Constitution. However, the trial court disagreed and admitted
the evidence. Smith also objected to the recording of his on-scene interview
during which he admitted that all the drugs were his. The trial court overruled
his objection and admitted the recording. The court found Smith guilty of
Level 2 felony dealing in a narcotic drug, Level 3 felony possession of a narcotic
drug, and Class B misdemeanor possession of marijuana. The trial court found
him not guilty of Class A misdemeanor dealing in marijuana. Regarding the
habitual-offender charge, the court asked the parties, “And . . . what are we
doing; is there going to be a second phase[?]” Tr. p. 229. Smith responded that
the State had waived proceeding on the habitual-offender charge because Smith
never had an initial hearing and did not waive his right to a jury trial on his
habitual-offender status. The court then held a brief initial hearing, where it
didn’t advise Smith that he had a right to a jury trial on the habitual-offender
charge. At the bench trial on the habitual-offender charge, Smith stipulated to
his prior convictions and the court found that he is a habitual offender.
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[10] At sentencing, the trial court found no mitigators and the following aggravators:
(1) Smith’s extensive criminal history (eight juvenile proceedings, including true
findings for dealing in cocaine and battery resulting in bodily injury, and ten
convictions as an adult, including seven misdemeanors and three felonies) and
(2) the fact that he was on parole for Class B felony dealing in cocaine when he
committed the offenses in this case. The trial court also noted that Smith had a
significant amount of fentanyl and stated, “Fentanyl is an extremely dangerous
drug . . . It is very addicting and people just flat out die from it.” Tr. p. 247.
The court merged the possession into the dealing count and imposed the
maximum sentence of thirty years, enhanced by twenty years for Smith’s status
as a habitual offender. Of those fifty years, the trial court suspended ten years
and ordered two years of probation, making Smith’s executed sentence forty
years. For the possession-of-marijuana conviction, the trial court sentenced
Smith to 180 days to be served concurrently.
[11] Smith now appeals.
Discussion and Decision
I. Searches of the White Avenue House
[12] Smith renews his argument that the parole officers’ search of the White Avenue
house violated the Fourth Amendment. He also contends that the search
warrant, based on the marijuana and paraphernalia seen by the parole officers,
was invalid and therefore the trial court should have granted his motion to
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suppress. Whether a search was constitutional is a question of law we review
de novo. Kelly v. State, 997 N.E.2d 1045, 1050 (Ind. 2013).
[13] Smith’s parole agreement contained the following condition:
I understand that I am legally in the custody of the Department
of Correction and that my person and residence or property
under my control may be subject to reasonable search by my
supervising officer or authorized official of the Department of
Correction if the officer or official has reasonable cause to believe
that the parolee is violating or is imminent danger of violating a
condition to remaining on parole.
Suppression Hr’g Ex. 1. Smith does not contest the validity of that condition.
Instead, Smith argues that the condition did not justify the parole officers’
search in this case for two reasons: (1) the White Avenue house was not
property under his control and (2) even if it was, there was no reasonable cause
to search it.
A. Control
[14] Smith first argues that the White Avenue house was not under his control. 1
However, there is ample evidence to the contrary. First, Smith was the only
1
Notably, the State does not argue that Smith does not have standing to object to the search of the White
Avenue house based on alleged Fourth Amendment violations. See Bradley v. State, 4 N.E.3d 831, 839 (Ind.
Ct. App. 2014) (“A defendant aggrieved by an illegal search and seizure only through the introduction of
damaging evidence secured by the search of a third person’s premises has not had any of his Fourth
Amendment rights infringed.”), trans. denied. Instead, the State argues only that the White Avenue house
was under Smith’s control and that therefore the parole officers’ search was authorized by the parole
condition.
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person inside the White Avenue house when the parole officers arrived. See Tr.
p. 217. Next, when Smith answered the door, he was wearing only underwear
and told the parole officers that he had just woken up. See id. at 9. Smith then
allowed the parole officers inside the house. See id. at 26. Moreover, he
actually admitted at trial that he was “in control of the house” when the parole
officers arrived. Id. at 218. Finally, there were numerous documents belonging
to Smith found inside the White Avenue house. See Exs. 19-22. All of this
shows that Smith was in control of the White Avenue house when the parole
officers searched it. As such, the trial court did not abuse its discretion by
finding that the White Avenue house was subject to search pursuant to the
parole condition.
B. Reasonable Cause
[15] Smith also argues that there was no reasonable cause to search the White
Avenue house pursuant to the parole condition. Reasonable suspicion is a less
demanding standard than probable cause and requires a showing considerably
less than preponderance of the evidence, but it still requires at least a minimal
level of objective justification and more than an inchoate and unparticularized
suspicion or “hunch” of criminal activity. State v. Schlechty, 926 N.E.2d 1, 7
(Ind. 2010), reh’g denied.
[16] One condition of Smith’s parole was that he would not change his residence
without notifying his parole officer. The record reveals that Smith’s supervising
parole officer received hospital-discharge documents that showed Smith’s
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address was on White Avenue—an unapproved residence. His parole officer
therefore requested a compliance check, and four parole officers went to the
White Avenue house. When the parole officers arrived, Smith answered the
door. His presence corroborated the hospital-discharge documents showing
that Smith’s address was on White Avenue and gave the parole officers
reasonable cause to believe that Smith was living there. Therefore, both the
hospital-discharge documents and Smith’s presence gave the parole officers
reasonable cause to go inside and look for further evidence that Smith was
living at the White Avenue house.
[17] Smith also agreed not to possess controlled substances or engage in conduct
prohibited by federal or state law or local ordinance. See Suppression Hr’g Ex.
1. When Smith opened the door of the White Avenue house, the parole officers
immediately smelled marijuana. The smell of marijuana by itself would have
given the parole officers reasonable cause to go inside the house and see if
Smith was violating a condition of his parole or engaged in conduct prohibited
by state law.
[18] Based on the totality of the circumstances, we find that the parole officers had
reasonable cause to believe that Smith was (1) violating or in imminent danger
of violating a condition to remaining on parole—based on the hospital-
discharge documents showing White Avenue as his address and (2) engaged in
criminal activity—based on the odor of marijuana the parole officers smelled
when Smith opened the door.
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[19] For all of these reasons, we reject Smith’s argument that the searches of the
White Avenue house violated the Fourth Amendment. 2
II. Smith’s Admission
[20] Smith next argues that the trial court erred in admitting the recording of his on-
scene interview, during which he admitted that “all the drugs” were his. A trial
court has broad discretion in ruling on the admission or exclusion of evidence.
Palilonis v. State, 970 N.E.2d 713, 731 (Ind. Ct. App. 2012), trans. denied. The
trial court’s ruling on the admissibility of evidence will be disturbed on review
only upon a showing of an abuse of discretion. Id. An abuse of discretion
occurs when the trial court’s ruling is clearly against the logic, facts, and
circumstances presented. Id. We do not reweigh the evidence, and we consider
conflicting evidence most favorable to the trial court’s ruling. Id. at 731-32.
A. Fifth Amendment
[21] Smith first argues that the incriminating statements he made were taken in
violation of his right to remain silent and that therefore the trial court should
have excluded the recording of his on-scene interview. An assertion of the right
to remain silent must be clear and unequivocal, and in determining whether a
2
Smith also contends that the searches violated Article 1, Section 11 of the Indiana Constitution. In its brief,
the State claims that Smith waived this issue by failing to challenge the searches under the Indiana
Constitution in the trial court. Smith did not respond to the State’s claim in his reply brief. Even if we found
that this issue was not waived, the searches were reasonable under the Indiana Constitution. See Litchfield v.
State, 824 N.E.2d 356, 361 (Ind. 2005) (setting forth three-part reasonableness test for searches and seizures
under the Indiana Constitution).
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person has asserted their rights, the defendant’s statements are considered as a
whole. Clark v. State, 808 N.E.2d 1183, 1190 (Ind. 2004). A person must do
more than express reluctance to talk to invoke his right to remain silent. Id. A
statement that “I’m through with this,” followed by continued dialogue without
pausing or indicating that the defendant would no longer respond, does not
unambiguously assert the right to remain silent. Haviland v. State, 677 N.E.2d
509, 514 (Ind. 1997).
[22] Smith alleges that he made two requests for the on-scene interview to end:
(1) Detective Cooper: Okay, alright, want to talk to me about
anything in this house right now?
Smith: No.
Detective Cooper: Alright, I’ll come talk to you here in a
minute, if you have any questions just
ask me.
(2) Smith: I ain’t answering no more questions
man cause ya’ll twist around my story.
Ya’ll making me seem like I’m on
some b*llsh*t.
Ex. 25, Int. 3 at 1:24-1:27, Int. 5 at 37:25. Smith argues that each of these
statements constituted an assertion of his right to remain silent.
[23] Smith’s statements did not expressly invoke his right to remain silent.
Regarding the first statement, when heard in context, Smith’s statement is an
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answer to Detective Cooper’s question of whether there is anything in the house
that Smith wanted to tell him about before the police officers began their search.
Although Smith answered “no,” he did not hesitate to answer Detective
Cooper’s questions when Detective Cooper comes back to interview him after
searching the White Avenue house. As to the statement, “I ain’t answering no
more questions man cause ya’ll twist around my story,” Smith made this
statement while yelling profanities at the officers and seemed to be making the
statement because he was agitated that the officers were telling his mother a
story that he believed to be untrue. Furthermore, after both statements, Smith
continued talking to the officers without pausing or indicating in any manner
that he would no longer respond. For all of these reasons, the trial court did not
err by admitting the recording of Smith’s on-scene interview.
B. Voluntariness of Admission
[24] Smith also argues that “his entire [on-scene interview] was the product of a
coercive atmosphere, designed to overcome his free will which rendered his
statement involuntary.” Appellant’s Br. p. 30. To be admissible, a suspect’s
confession must also be voluntarily given. Palilonis, 970 N.E.2d at 732. A
confession is voluntary if it is the product of a rational intellect and not the
result of physical abuse, psychological intimidation, or deceptive interrogation
tactics that have overcome the defendant’s free will. Id. Under the United
States Constitution, the State must prove by a preponderance of the evidence
that the defendant’s confession was voluntary. Clark, 808 N.E.2d at 1191. The
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voluntariness of a defendant’s confession is determined from the totality of the
circumstances. Palilonis, 970 N.E.2d at 732.
[25] The record does not support Smith’s claim of coercion. Detective Cooper read
Smith his Miranda rights, and Smith said that he understood those rights. Smith
did not ask for a lawyer, nor did he refuse to answer questions. The portions of
the on-scene interview which Smith believes show coercion are the following:
(1) When Buchanan arrived and one of the officers remarked, in
Smith’s presence, “I say you snatch his brother up too since
he said its brother’s weed.”
(2) When the same IMPD officer said to Smith, “so it’s your
brother’s? Where’s he at, snatch his ass up.”
Ex. 25, Int. 4 at 43:25, 44:49. The statements implying that Smith’s brother
would be arrested were not coercive because Smith told officers that the drugs
belonged to Buchanan. Smith also alleges that the police officers “deliberately
ha[d] his mother hysterically confront [him].” Appellant’s Br. p. 31. However,
when heard in its entirety, the recording shows that Smith’s mother was upset
by his drug activities and by the fact that he initially told the police that the
drugs belonged to Buchanan. It is clear from context that Smith’s mother was
not upset by Detective Cooper’s interrogation. Finally, when heard in its
entirety, the recording reveals that Detective Cooper did not intimidate Smith
into making his admission. There is no evidence of violence, threats, promises,
or other improper influences. Rather, through repeated questioning and
encouragement to tell the truth, Detective Cooper elicited an admission. As
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such, we find that the record supports the trial court’s conclusion that Smith’s
admission was voluntary.
III. Habitual-Offender Enhancement
[26] Smith also argues that he did not personally waive his right to a jury trial for the
later-filed habitual-offender charge and asks us to vacate the twenty-year
enhancement. The State argues that Smith’s November 20, 2018 personal
waiver on the underlying felonies included a waiver of his right to a jury trial on
the habitual-offender charge. The Indiana Constitution’s right to a jury trial
may be waived by one, and only one, person—the defendant. Horton v. State, 51
N.E.3d 1154, 1155 (Ind. 2016). Unless the defendant personally communicates
to the judge a desire to waive that right, he must receive a jury trial. Id. This
Court recently dealt with this issue in Bradtmiller v. State, 113 N.E.3d 255, 257
(Ind. Ct. App. 2018), where we held that a jury-trial waiver on the underlying
charges did not apply to the later-filed habitual-offender enhancement. See also
O’Connor v. State, 796 N.E.2d 1230, 1234 (Ind. Ct. App. 2003) (“O’Connor’s
waiver of her right to a jury trial was not made with sufficient awareness of the
relevant circumstances surrounding its entry and its consequences so as to be
deemed a voluntary, knowing, and intelligent waiver of her right to a jury trial
as to the habitual offender determination.”).
[27] The State contends that this case is distinguishable from Bradtmiller and
O’Connor. See Appellee’s Br. p. 23. Specifically, it says that the advisement
Smith signed stated that he waived his right to a jury trial as to all “facts, such
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as a prior criminal conviction that would . . . increase the potential penalties for
the charged offense,” that this “is a description of a habitual-offender
enhancement,” and that therefore the trial court was not required to convene a
jury for the habitual-offender enhancement phase of Smith’s trial. Id. at 23.
We disagree. First, like the advisements in Bradtmiller and O’Connor, the
advisement in this case was given to Smith before the habitual-offender charge
was filed, in fact, it was given more than a month before the habitual-offender
charge was filed. See Bradtmiller, 113 N.E.3d at 256 (advisement given four
days before habitual-offender charge filed); see also O’Connor, 796 N.E.2d at
1232 (advisement given more than a month before habitual-offender charge
filed). Furthermore, the language cited by the State neither (1) informed Smith
of his right to a jury trial on the habitual-offender charge nor (2) clearly
informed Smith that he was waiving that right. Therefore, like the defendant in
Bradtmiller, Smith’s waiver was not made with sufficient awareness surrounding
its entry and consequences. We therefore reverse the trial court’s habitual-
offender finding and the enhancement imposed thereon and remand this case so
that the State can decide whether to pursue the habitual-offender enhancement.
IV. Inappropriate Sentence
[28] Finally, Smith contends that, assuming we reverse the habitual-offender
sentencing enhancement, his “remaining sentences of thirty (30) years of which
ten (10) are suspended is excessive . . . [and] unreasonable.” Appellant’s Br. p.
35. He asks us to revise it pursuant to Indiana Appellate Rule 7(B), which
provides that an appellate court “may revise a sentence authorized by statute if,
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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.” “Whether a sentence is inappropriate ultimately turns on the
culpability of the defendant, the severity of the crime, the damage done to
others, and a myriad of other factors that come to light in a given case.”
Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014) (citing Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Because we generally defer to the
judgment of trial courts in sentencing matters, defendants have the burden of
persuading us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d
1041, 1044-45 (Ind. Ct. App. 2016).
[29] The sentencing range for a Level 2 felony is ten to thirty years, with an advisory
sentence of seventeen-and-a-half years. Ind. Code § 35-50-2-4.5. As for the
nature of the offenses, Smith was convicted of dealing in heroin that contained
fentanyl—an extremely dangerous drug that is very addicting and often life-
threatening. See Tr. p. 247. And it wasn’t a small amount of heroin and
fentanyl that was found—but 176.30 grams, and with $50,000 at his disposal,
it’s clear that Smith was no low-level dealer. Regarding his character, Smith’s
criminal history supports his sentence. According to the pre-sentence
investigation report, thirty-one-year-old Smith had been convicted of three
felonies, including Class B felony dealing in cocaine, seven misdemeanors, and
four juvenile adjudications, including true findings for dealing in cocaine and
battery resulting in bodily injury. Appellant’s App. Vol. II pp. 63-69. He was
also on parole for Class B felony dealing in cocaine when he committed the
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offense. Therefore, we cannot say that Smith’s sentence of thirty years with ten
years suspended and two years of probation is inappropriate.
[30] Affirmed in part, reversed in part, and remanded for further proceedings.
Riley, J., and Bradford, C.J., concur.
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