Sam J. Spicer II v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION May 12 2015, 9:28 am
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
Cynthia M. Carter Gregory F. Zoeller
Law Office of Cynthia M. Carter, LLC Attorney General of Indiana
Indianapolis, Indiana
Kelly A. Miklos
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Sam J. Spicer II, May 12, 2015
Appellant-Defendant, Court of Appeals Case No.
15A05-1409-CR-410
v. Appeal from the
Dearborn Circuit Court
State of Indiana, The Honorable James D.
Humphrey, Judge
Appellee-Plaintiff.
Cause No. 15C01-1402-FA-10
Kirsch, Judge.
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[1] Sam J. Spicer II (“Spicer”) pleaded guilty to conspiracy to commit dealing in
methamphetamine in an amount of three grams or more1 as a Class A felony,
and the trial court sentenced him to forty years executed. On appeal, Spicer
challenges his sentence, arguing that the trial court abused its discretion when it
considered improper aggravating factors and that his sentence is inappropriate
in light of the nature of the offense and the character of the offender.
[2] We affirm.
Facts and Procedural History
[3] Following a tip, detectives of the Dearborn County Sheriff’s Department
initiated an investigation into a possible methamphetamine manufacturing
operation. Over a period of time, the detectives observed two individuals, later
identified as Spicer and Lisa Ellis (“Ellis”), “continuously involved in the
criminal activity” of transporting numerous individuals to pharmacies in
Dearborn County, with the goal of purchasing pseudoephedrine. Appellant’s
App. at 15.
[4] As part of the scheme, Spicer would deliver the pseudoephedrine to Vernis
Newton (“Newton”) in Ohio and to an unnamed individual in Kentucky;
methamphetamine was manufactured in both locations. Each ninety-six count
1
See Ind. Code § 35-41-5-2; Ind. Code § 35-48-4-1.1. We note that, effective July 1, 2014, new versions of the
criminal statutes with which Spicer was charged were enacted, but because he committed his crimes prior to
that date, we will apply the applicable statutes in effect at that time.
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box of pseudoephedrine that was purchased could produce approximately two
grams of methamphetamine. Spicer and Newton had an arrangement by which
Newton would give Spicer one gram of methamphetamine, and Newton would
keep the rest. Spicer, in turn, kept one half gram of methamphetamine for
himself and gave the other half to the individual who had purchased the box of
pseudoephedrine. The people involved in this conspiracy were mostly addicts
and undereducated, some having only an eighth grade education.
[5] The probable cause affidavit, signed by Detectives Norman Rimstidt2 and Carl
Pieczonka, described various purchases observed by the detectives. Id. at 15-22.
In all, the detectives saw individuals purchasing five-and-a-half boxes of
pseudoephedrine, an amount detectives estimated “is equivalent to 15.84 grams
of pseudoephedrine.” Id. at 21. This amount of pseudoephedrine was “well in
excess of what it would take to manufacture more than three grams of
methamphetamine.” Id.[6] On February 14, 2014, the State charged Spicer and approximately twenty-four
other co-defendants with Class A felony conspiracy to commit dealing in
methamphetamine in an amount of three grams or more. The overt act alleged
to be in furtherance of the agreement was the purchase of pseudoephedrine for
the manufacture of methamphetamine.
2
Although Spicer refers to Rodney Rimstidt, Appellant’s Br. at 2, we refer to Norman Rimstidt, which is the
name used in the Probable Cause Affidavit. Appellant’s App. at 15, 22.
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[7] Spicer initially pleaded not guilty; however, three days before trial, he decided
to change his plea. Before accepting Spicer’s open plea of guilty to having
committed the Class A felony, the trial court informed him that a “Class A
felony is punishable by a jail sentence from twenty to fifty years, advisory
sentence of thirty years, possible fine of up to $10,000.00.” Tr. at 69.
[8] During Spicer’s sentencing hearing, the trial court considered aggravating and
mitigating factors. The trial court found the nature and circumstances of the
crime to be a significant aggravating factor. Of particular note, the trial court
cited the size and multi-state scope of the methamphetamine manufacturing
operation, that Spicer was “the ringleader,” and that he took advantage of
certain participants, many of whom were mentally challenged and struggled
with addiction themselves. Id. at 146-47. The trial court found Spicer’s claim –
that he was involved in the scheme merely to obtain methamphetamine to use
for weight loss purposes – to be “ludicrous and unbelievable.” Id. at 147.
Spicer’s criminal history, which dated back to 2003 and consisted of two prior
felony convictions and five prior unrelated misdemeanor convictions, was also
considered by the trial court to be a significant aggravating factor. Likewise,
the trial court found it to be significant that Spicer was on probation for a felony
conviction at the time he committed the current offense. Id.[9] By pleading guilty, Spicer had admitted his involvement in this scheme. The
trial court found that the facts “confirmed [Spicer’s] overwhelming guilt.” Id. at
148. Nevertheless, the trial court noted that Spicer continued to “deny a
significant involvement in this case,” did “not recognize the significant harm he
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caused to individuals and the tri-state community [(Indiana, Ohio, and
Kentucky)] in this manufacturing scheme,” and showed a lack of remorse for
his actions in this case. Id. Finally, unpersuaded by Spicer’s claim that his
diabetes and concern for losing weight had caused him to once again use
methamphetamine, id. at 134, the trial court noted that even though Spicer had
completed drug abuse and rehabilitation classes, he had failed to comply with
the ordered follow-up services of Alcoholics Anonymous or other drug
treatment or counseling services. Id. at 148.
[10] The trial court found two mitigating factors, neither of which it deemed to be
significant. Regarding Spicer’s guilty plea, the trial court found that its
mitigating impact was lessened by the fact that there was overwhelming
evidence of Spicer’s guilt. Appellant’s App. at 197. The trial court also
discounted Spicer’s claim that his imprisonment would result in hardship for his
mother and his three children on the basis that: previous arrangements had
been made for the children even before Spicer was charged or incarcerated; and
it was Spicer’s mother, not Spicer, who had “been the primary caregiver for the
children almost since their birth.” Id. Balancing the factors, the trial court
concluded that the aggravators outweighed the mitigators and sentenced Spicer
to forty years executed. Spicer now appeals.
Discussion and Decision
[11] Spicer raises two sentencing issues on appeal. First, he contends that the trial
court abused its discretion when it considered improper aggravating factors, and
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second, he maintains that his sentence is inappropriate in light of the nature of
the offense and the character of the offender.
I. Abuse of Discretion
[12] Sentencing decisions rest within the sound discretion of the trial court.
Winkleman v. State, 22 N.E.3d 844, 852 (Ind. Ct. App. 2014) (citing Anglemyer v.
State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on other grounds, 875 N.E.2d 218(Ind. 2007)), trans. denied. As long as the sentence is within the statutory range,
it is subject to review only for an abuse of discretion. Id. An abuse of discretion
will be found where the decision is clearly against the logic and effect of the
facts and circumstances before the court or the reasonable, probable, and actual
deductions to be drawn therefrom. Id. Under the advisory sentencing scheme,
a trial court may abuse its discretion by (1) failing to enter a sentencing
statement at all; (2) entering a sentencing statement that includes aggravating
and mitigating factors that are unsupported by the record; (3) entering a
sentencing statement that omits reasons that are clearly supported by the
record; or (4) entering a sentencing statement that includes reasons that are
improper as a matter of law. Id. (citing Anglemyer, 868 N.E.2d at 490-91). If a
trial court abuses its discretion, “remand for resentencing may be the
appropriate remedy if we cannot say with confidence that the trial court would
have imposed the same sentence had it properly considered reasons that enjoy
support in the record.” Id.
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[13] During sentencing, the trial court identified numerous aggravators. Spicer does
not contest the trial court’s conclusions that his criminal history and being on
probation at the time he committed the instant offense are significant
aggravating factors. Instead, Spicer complains that the trial court abused its
discretion when it considered as aggravating factors (1) the nature and
circumstances of the crime, (2) Spicer’s lack of remorse, and (3) his failure to
seek help for his drug addiction. Specifically, Spicer argues that these were
inappropriate considerations because those factors are not enumerated as
aggravators in the sentencing criteria set forth in Indiana Code section 35-38-1-
7.1. Appellant’s Br. at 11.
[14] While recognizing that Spicer’s guilty plea and the hardship his imprisonment
would cause to his family were mitigating factors, the trial court concluded that
these mitigators lacked significance because of the overwhelming evidence of
Spicer’s guilt and the fact that his mother had always cared for his children. As
to the aggravators, the trial court found that Spicer’s criminal history of two
prior felonies and five prior unrelated misdemeanors was significant. The trial
court found that Spicer’s status of being on probation at the time he committed
the instant offense was also a significant aggravating factor. Spicer does not
contest these two findings. Adding to this, the trial court considered that
Spicer’s refusal to admit he was involved in the scheme, even after having
pleaded guilty, was a reflection of his lack of remorse. Finally, the trial court
found that the nature and circumstances of the conspiracy, i.e., its size, scope,
and Spicer’s role in the conspiracy, was a significant aggravating factor.
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[15] Contrary to Spicer’s suggestion, a trial court is not limited to considering only
the aggravators set forth in section 35-38-1-7.1(a). See I.C. § 35-38-1-7.1(c)
(“The criteria listed in subsections (a) . . . do not limit the matters that the court
may consider in determining the sentence.”). More to the point, this court has
upheld sentences in which the trial court enhanced a sentence on the basis of
nature and circumstances of the crime as well as lack of remorse. See Caraway v.
State, 959 N.E.2d 847, 850 (Ind. Ct. App. 2011), trans. denied (although trial
court may not use material element of offense as aggravating circumstance, it
may find nature and circumstances of offense to be aggravating circumstance);
see also Deane v. State, 759 N.E.2d 201, 205 (Ind. 2001) (lack of remorse is proper
factor to consider in imposing sentence).
[16] It is well-settled that a single aggravating factor is sufficient to warrant an
enhanced sentence. Guzman v. State, 985 N.E.2d 1125, 1133 (Ind. Ct. App.
2013) (citing Morgan v. State, 829 N.E.2d 12, 15 (Ind. 2005); Gibson v. State, 702
N.E.2d 707, 710 (Ind. 1998)). Here, assuming without deciding that Spicer’s
failure to obtain court-ordered assistance was an improper aggravating factor,
the remaining aggravators were sufficient for the trial court to enhance Spicer’s
sentence to a level that is ten years above the advisory sentence of thirty years
and ten years below the maximum of fifty years. The trial court did not abuse
its discretion when it balanced Spicer’s mitigators and aggravators and imposed
a forty-year sentence.
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II. Appellate Rule 7(B)
[17] Spicer next argues that his sentence is inappropriate in light of the nature of the
offense and his character. Indiana Appellate Rule 7(B) empowers us to
independently review and revise sentences authorized by statute if, after due
consideration, we find the trial court’s decision inappropriate in light of the
nature of the offense and the character of the offender. Anderson v. State, 989
N.E.2d 823, 827 (Ind. Ct. App. 2013) (citing Reid v. State, 876 N.E.2d 1114,
1116 (Ind. 2007)), trans. denied. The “nature of offense” compares the
defendant’s actions with the required showing to sustain a conviction under the
charged offense, while the “character of the offender” permits for a broader
consideration of the defendant’s character. Id. “‘The burden is on the
defendant to persuade’ the appellate court that his or her sentence is
inappropriate.” Carroll v. State, 922 N.E.2d 755, 757 (Ind. Ct. App. 2010)
(quoting Reid, 876 N.E.2d at 1116), trans. denied.
[18] Here, Spicer does not set out specific arguments relating to the nature of the
offense or the character of the offender. Instead, citing to Cardwell v. State, 895
N.E.2d 1219, 1224 (Ind. 2008), he notes that the appropriateness of a sentence
turns on the appellate court’s “sense of the 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.” Appellant’s Br. at 14-15. Based on that standard,
Spicer asserts that his culpability in relation to his co-defendants is unclear as
they “were all drug addicts who collaborated as a method of securing the fuel
for their consuming drug addictions.” Appellant’s Br. at 15. Spicer offers that
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“at worst, he was a ‘middleman’ who went back and forth between Ohio, but
he did not act alone.” Id. Finally, he argues that his old car and house trailer in
Rising Sun reveal that he was not making the money, “somebody other than
Spicer was calling the shots.” Id.[19] As to the nature of the offense, the conspiracy was large in both scope and size.
There were at least twenty-four co-conspirators and the operation extended
from Indiana into Ohio and Kentucky. By his own admission, Spicer was the
only one among the co-conspirators who had a driver’s license and was able to
coordinate the transport of individuals and their purchase of pseudoephedrine.
Tr. at 129. He, among the twenty-four co-conspirators, was the only one who
knew and made contact with Newton and the Kentucky manufacturer, and he
was the one who took one-half gram of methamphetamine for each box of
pseudoephedrine delivered, regardless of which individual had made the
purchase. Id. As part of his operation, Spicer used individuals, most of whom
were addicts, and many of whom were undereducated. Three of the co-
conspirators had only an eighth grade education, tr. at 14-15, and
approximately four more had no more than a tenth grade education. Id. at 15.
Ellis estimated that Spicer had supplied Newton and the Kentucky
manufacturer with more than 100 boxes of pseudoephedrine; that was enough
to make over 200 grams of methamphetamine. Appellant’s App. at 46. The
advisory sentence for a Class A felony is thirty years, with the maximum
sentence being fifty years. Based on the nature of the offense, Spicer’s forty-
year sentence was not inappropriate.
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[20] Spicer’s character was revealed, in part, by his criminal history. Spicer had two
prior felonies and five prior unrelated misdemeanors, and he was on probation
for a felony at the time he committed the instant offense. While Spicer pleaded
guilty to transporting co-conspirators to pharmacies to buy pseudoephedrine,
for which they would be paid in methamphetamine, and Spicer admitted to
taking a cut from each gram of methamphetamine he received, Spicer still
refused to admit at sentencing that he was significantly involved in the scheme.
Tr. at 115-16, 123-24. Based on Spicer’s character, an enhancement of his
sentence from the thirty-year advisory to forty years was not inappropriate.
Spicer has failed to meet his burden of proving that his sentence was
inappropriate in light of the nature of the offense and the character of the
offender.
[21] Affirmed.
[22] Vaidik, C.J., and Bradford, J., concur.
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