Edward C. Sizemore v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 20 2018, 8:34 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
Jennifer A. Joas Curtis T. Hill, Jr.
Madison, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Edward C. Sizemore, November 20, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1707
v. Appeal from the Ripley Circuit
Court
State of Indiana, The Honorable Ryan J. King,
Appellee-Plaintiff Judge
Trial Court Cause No.
69C01-1709-F4-14
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1707 | November 20, 2018 Page 1 of 5
[1] Edward Sizemore appeals the sentence imposed by the trial court after he
pleaded guilty to Level 4 Felony Dealing in Methamphetamine and Level 6
Felony Possession of a Hypodermic Needle. Sizemore argues that the sentence
is inappropriate in light of the nature of the offenses and his character. Finding
that the sentence is not inappropriate, we affirm.
Facts
[2] On September 7, 2017, police officers went to Sizemore’s residence to serve an
arrest warrant on another individual. When the officers arrived, the other
individual fled on foot. Sizemore allowed officers inside of his house, where
the officers saw a digital scale with powder residue in plain view. After the
officers advised Sizemore of his rights, Sizemore admitted that he was a
methamphetamine dealer and user, explaining that he sold approximately seven
grams of methamphetamine every three to five days. A gram of
methamphetamine generally sold for $60 to $100, meaning that Sizemore was
earning $420 to $700 every three to five days. Officers also found two loaded
handguns, twenty-eight hypodermic needles, other digital scales, and plastic
bags containing powdered substances.
[3] On September 11, 2017, the State charged Sizemore with Level 4 felony dealing
in methamphetamine, Level 6 felony possession of a hypodermic needle, Level
6 felony possession of methamphetamine, and Level 6 felony maintaining a
common nuisance. Sizemore agreed to plead guilty to the dealing in
methamphetamine and possession of a hypodermic needle charges in exchange
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1707 | November 20, 2018 Page 2 of 5
for the dismissal of the other charges. On May 3, 2018, the trial court imposed
a ten-year sentence, with two years suspended to probation, for the dealing
conviction, to be served concurrently with a two-year sentence for the
possession of a hypodermic needle conviction. Sizemore now appeals.
Discussion and Decision
[4] Sizemore’s sole argument on appeal is that the sentence imposed by the trial
court is inappropriate in light of the nature of the offenses and his character
pursuant to Indiana Appellate Rule 7(B). In considering an argument under
Rule 7(B), we must “conduct [this] review with substantial deference and give
‘due consideration’ to the trial court’s decision—since the ‘principal role of
[our] review is to attempt to leaven the outliers,’ and not to achieve a perceived
‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)
(quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal
citations omitted).
[5] Sizemore was convicted of one Level 4 felony, for which he faced a term of two
to twelve years imprisonment. Ind. Code § 35-50-2-5.5. The trial court
imposed a ten-year term, which is above the advisory six-year term but less than
the maximum twelve-year term. Sizemore was also convicted of one Level 6
felony, for which he faced a term of six months to two and one-half years, with
an advisory term of one year. I.C. § 35-50-2-7(b). The trial court imposed a
two-year term but ordered that it be served concurrently with the ten-year
sentence, for an aggregate ten-year term.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1707 | November 20, 2018 Page 3 of 5
[6] With respect to the nature of the offenses, Sizemore admitted that he regularly
sold seven grams of methamphetamine every three to five days, which far
exceeds the single occasion required to commit dealing in methamphetamine.
As the trial court noted, Sizemore is “a methamphetamine dealer, period, and a
serious one.” Tr. p. 61. Moreover, officers found twenty-eight hypodermic
syringes in his house, which far exceeds the single one required to commit the
Level 6 felony offense. We do not find that the nature of the offenses renders
Sizemore’s sentence inappropriate.
[7] As for the nature of Sizemore’s character, we note that the evidence shows that
he was earning close to $700 every three to five days. But notwithstanding that
income, he was nearly $30,000 in arrears on child support payments. Indeed,
he had not made a single voluntary child support payment since June 2014.
The last payment he made was in July 2015, which was garnished from a bond
he had posted for a failure-to-appear warrant issued as part of his child support
case.
[8] Sizemore’s criminal history includes a 1993 conviction for illegal consumption
of alcohol by a minor, for which he served a term of probation. In January
1998, he was charged with operating a vehicle while intoxicated, but this charge
was dismissed due to a deferral agreement. In November 2007, he entered into
a deferral agreement for a charge of misdemeanor battery. And at the time he
was sentenced in the present case, he was facing a charge of battery resulting in
bodily injury. While Sizemore’s criminal history is not the worst of the worst, it
shows that despite first, second, and third chances afforded to him by the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1707 | November 20, 2018 Page 4 of 5
criminal justice system to reform his behavior, he is either unable or unwilling
to do so. In light of his child support arrearage and criminal history, we do not
find that the nature of Sizemore’s character renders the sentence inappropriate.
[9] Sizemore also emphasizes the fact that he pleaded guilty, arguing that his guilty
plea warrants a reduced sentence. It is apparent from the record, however, that
his guilty plea was largely pragmatic rather than a genuine show of remorse,
given that the evidence of his guilt was overwhelming and the State dismissed
two felony charges in exchange for the guilty plea. In light of these factors, we
do not find that the guilty plea renders the sentence inappropriate.
[10] In sum, the aggregate ten-year sentence imposed by the trial court is not
inappropriate in light of the nature of the offenses and Sizemore’s character.
[11] The judgment of the trial court is affirmed.
May, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1707 | November 20, 2018 Page 5 of 5