Lamar Herron, Jr. v. State of Indiana ( 2012 )

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:
STEVEN KNECHT GREGORY F. ZOELLER
Vonderheide & Knecht, P.C. Attorney General of Indiana
Lafayette, Indiana
ERIC P. BABBS
Deputy Attorney General
FILED
Indianapolis, Indiana
Oct 24 2012, 9:20 am
IN THE CLERK
of the supreme court,
COURT OF APPEALS OF INDIANA court of appeals and
tax court
LAMAR HERRON, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 79A04-1201-CR-58
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Randy J. Williams, Judge
Cause No. 79D01-0711-FA-39
October 24, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Lamar Herron, Jr. appeals his sentence following his conviction for dealing in
cocaine, as a Class B felony, after he pleaded guilty. Herron raises a single issue for our
review, namely, whether his sentence is inappropriate in light of the nature of the offense
and his character. We affirm.
FACTS AND PROCEDURAL HISTORY
In October of 2007, Officer Walters of the Tippecanoe County Police Department
learned from an informant the phone number of a crack cocaine dealer. Officer Walters
called the number and arranged to buy $100 of cocaine. Upon his arrival, with other
officers, at the location agreed upon with the dealer, Walters arrested Herron.
On November 1, the State charged Herron with dealing in cocaine, as a Class A
felony, and dealing in cocaine, as a Class B felony. Thereafter, Herron received two
psychological evaluations and was diagnosed with schizophrenia. Based on those
evaluations, on April 30, 2008, the State entered into an agreed order with Herron’s
counsel that he was currently incompetent to stand trial. The parties further agreed that
Herron would be reevaluated by the Logansport State Hospital within ninety days of the
agreed order and that a final determination of his competency would be based on the
reevaluation. On August 27, doctors reevaluated Herron’s mental condition and
diagnosed him with “History of Substance-Induced Psychotic Disorder” and “Personality
Disorder Not Otherwise Specified (NOS) with Antisocial, Narcisstic, and Histrinoic
Features.” Appellant’s App. at 68. The doctors concluded that he had “attained the
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ability to understand the proceedings and assist in the preparation of his defense.” Id. at
67.
On November 25, 2008, Herron entered into a plea agreement with the State.
According to the terms of the agreement, Herron would plead guilty to the Class B felony
charge and the State would dismiss the Class A felony charge. Sentencing was left open
to the trial court’s discretion. After a hearing, the trial court accepted the plea agreement
and, on January 8, 2009, the court sentenced Herron to sixteen years, with twelve years
executed and four years suspended to probation, which is six years above the advisory
term for a Class B felony but four years below the maximum. See Ind. Code § 35-50-2-5.
This appeal ensued.
DISCUSSION AND DECISION
Herron argues that his sentence is inappropriate. Although a trial court may have
acted within its lawful discretion in determining a sentence, Article VII, Sections 4 and 6
of the Indiana Constitution “authorize[] independent appellate review and revision of a
sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App.
2007) (alteration original). This appellate authority is implemented through Indiana
Appellate Rule 7(B). Id. Revision of a sentence under Appellate Rule 7(B) requires the
appellant to demonstrate that his sentence is inappropriate in light of the nature of his
offense and her character. See Ind. Appellate Rule 7(B); Rutherford v. State, 866 N.E.2d
867, 873 (Ind. Ct. App. 2007). 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).
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However, “a defendant must persuade the appellate court that his or her sentence has met
th[e] inappropriateness standard of review.” Roush, 875 N.E.2d at 812 (alteration
original).
Moreover, “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). Indiana’s flexible sentencing scheme allows trial courts to tailor
an appropriate sentence to the circumstances presented. See id. at 1224. 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.
Herron first asserts that his sentence is inappropriate in light of the nature of the
offense. In particular, Herron notes that “this drug sale is a fairly typical instance of
Dealing in Cocaine. . . . There is nothing about this offense that requires an enhanced
sentence.” Appellant’s Br. at 10. But Herron apparently had a history of dealing
cocaine. An informant had called Officer Walters and told him that Herron was a dealer,
Officer Walters then promptly called Herron to set up a drug buy, and Herron was
immediately available with the amount of cocaine requested. And the State dismissed its
Class A felony charge in exchange for Herron’s guilty plea. Had Herron been convicted
of the Class A felony, he would have been subjected to a greater sentence than the one he
received. We are not persuaded that the nature of this offense merits revision of Herron’s
sentence.
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Herron also contends that revision of his sentence is inappropriate in light of his
character. Specifically, Herron downplays his extensive criminal history as old and
unrelated to the current offense. And Herron emphasizes his history of mental illness in
light of his recent diagnosis of schizophrenia.
We are again not persuaded. Herron’s criminal history includes nine felony
convictions, including three counts of aggravated battery. He has an additional ten
misdemeanor convictions. His most recent conviction was in August of 2007. He was
on probation when he committed the instant offense, and he exhibited poor behavior
while incarcerated in the Tippecanoe County Jail after he was returned there by the
Logansport State Hospital. And the evidence of his mental health is at best equivocal. 1
We cannot say that Herron’s sentence is inappropriate in light of his character.
Affirmed.
KIRSCH, J., and MAY, J., concur.
1
Insofar as Herron’s argument on this issue is that the trial court abused its discretion because it
did not assign the proper mitigating weight to his mental illness, we note that that argument is not
available for appellate review. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007).
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