ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott A. Kinsey Jeffrey A. Modisett
Kinsey Law Firm Attorney General of Indiana
Kokomo, Indiana
Suzann Weber Lupton
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
)
TIMOTHY EVANS )
Defendant-Appellant, )
)
v. ) 91S04-0003-CR-216
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
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APPEAL FROM THE WHITE SUPERIOR COURT
The Honorable Robert W. Roth, Judge
Cause No. 91D01-9607-CF-00081
_________________________________________________
On Petition To Transfer
March 24, 2000
DICKSON, Justice
The defendant-appellant, Timothy Evans, was convicted of dealing in
cocaine, a class A felony, for knowingly or intentionally delivering
cocaine in an amount weighing greater than three grams. He received a
sentence of fifty years. The Court of Appeals affirmed in a memorandum
decision. The defendant seeks transfer.
Among the issues presented is a claim that the sentence is manifestly
unreasonable. The trial court determined that the presumptive sentence of
thirty years should be enhanced by twenty years, thereby imposing the
maximum class A felony sentence of fifty years. This Court may revise a
criminal sentence that is “manifestly unreasonable in light of the nature
of the offense and the character of the offender.” Ind. Appellate Rule
17(B). In determining whether a sentence is manifestly unreasonable, “the
issue is not whether in our judgment the sentence is unreasonable, but
whether it is clearly, plainly, and obviously so.” Echols v. State, 722
N.E.2d 805, 809 (Ind. 2000) (quoting Bunch v. State, 697 N.E.2d 1255, 1258
(Ind. 1998) (quoting Prowell v. State, 687 N.E.2d 563, 568 (Ind. 1997))).
Purveyors of cocaine and illegal narcotic drugs are a menace to
society. Our legislature has determined that the crime of knowingly or
intentionally delivering cocaine weighing three grams or more is so
reprehensible that it warrants sentencing as a class A felony.[1] This
class of high sentencing severity also applies to other major crimes
including, for example, kidnapping,[2] rape while armed with a deadly
weapon,[3] robbery resulting in serious bodily injury,[4] arson resulting
in bodily injury,[5] and burglary resulting in bodily injury.[6] The
punishment prescribed by statute for a conviction for a class A felony is
imprisonment “for a fixed term of thirty years, with not more than twenty
years added for aggravating circumstances or not more than ten years
subtracted for mitigating circumstances.”[7] As to the crime of dealing in
cocaine, the maximum available sentence as a class A felony would be fifty
years regardless whether the quantity of cocaine involved was three grams
or three tons. The maximum possible sentences are generally most
appropriate for the worst offenders. See Buchanan v. State, 699 N.E.2d
655, 657 (Ind. 1998); Bacher v. State, 686 N.E.2d 791, 802 (Ind. 1997).
When he committed this offense, the defendant was nineteen years old.
The crime occurred when a confidential police informant, wearing a body
wire and carrying marked money, went to the defendant’s home. The
defendant’s mother permitted him to enter and advised him that the
defendant was asleep in his room. The police informant woke the defendant
and asked if he had any drugs for sale. The defendant responded that he
had obtained two ounces of cocaine, but had already sold one and one-half
ounces, so he could sell the informant only one-quarter of an ounce. The
two agreed on a price of $325. The informant paid $225 and then left to
get the rest of the money, taking with him the 6.55 grams (approximately
one-quarter of an ounce) of cocaine purchased. The trial evidence also
revealed that the same informant attempted to make another cocaine purchase
from the defendant, but that the defendant refused, expressing concern for
the informant's new family. The defendant's comments to the informant,
however, indicated the defendant's intention to continue selling drugs.
Despite his youth, the defendant had already accumulated a record of
unlawful activity. He had three juvenile adjudications for offenses that
would be felonies if committed by an adult (theft, criminal trespass, and
auto theft) and one adult misdemeanor conviction for receiving stolen
property. None of the offenses involved violence, but the defendant was
already on probation at the time of this offense and had also previously
violated his juvenile probation.
We conclude that, in light of the nature of the offense and the
character of the offender, the maximum sentence allowed by law for dealing
in cocaine as a class A felony is clearly, plainly, and obviously
unreasonable in this case. We grant transfer and vacate the fifty-year
sentence and remand to the trial court with instructions to impose the
presumptive sentence of thirty years. We otherwise summarily affirm the
opinion of the Court of Appeals.
SHEPARD, C.J., and BOEHM and RUCKER, JJ., concur. SULLIVAN, J.,
concurs in result.
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[1] Ind. Code § 35-48-4-1.
[2] Ind. Code § 35-42-3-2.
[3] Ind. Code § 35-42-4-1.
[4] Ind. Code § 35-42-5-1.
[5] Ind. Code § 35-43-1-1.
[6] Ind. Code § 35-43-2-1.
[7] Ind. Code § 35-50-2-4.