Joshua L. Schumacher v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jun 06 2019, 7:38 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
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP Attorney General
Madison, Indiana
Courtney Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joshua L. Schumacher, June 6, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-30
v. Appeal from the
Jennings Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff Jonathan W. Webster
Trial Court Cause No.
40C01-1803-F3-4
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-30 | June 6, 2019 Page 1 of 5
Case Summary
[1] Joshua L. Schumacher was convicted of two counts of dealing in
methamphetamine, and the trial court ordered the sentences to be served
consecutively. Schumacher now appeals, arguing that consecutive sentences
are inappropriate because the convictions are for nearly identical State-
sponsored buys. We agree that the sentences should run concurrently, so we
return this matter to the trial court for the entry of a revised sentencing order
and abstract of judgment.
Facts and Procedural History
[2] On May 23 and 25, 2017, the North Vernon Police Department used a
confidential informant to purchase methamphetamine in two separate
controlled buys from Schumacher. The May 23 buy involved 5.77 grams, and
the May 25 buy involved 3.41 grams. In both controlled buys, the same
confidential informant made the arrangements for purchase in the same general
area.
[3] Thereafter, the State charged Schumacher with the following: Count 1: Level 3
felony dealing in methamphetamine between five and ten grams (May 23);
Count 2: Level 4 felony dealing in methamphetamine less than five grams (May
25); Count 3: Level 5 felony possession of methamphetamine between five and
ten grams (May 23); and Count 4: Level 6 felony possession of
methamphetamine less than five grams (May 25). Following a jury trial,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-30 | June 6, 2019 Page 2 of 5
Schumacher was found guilty as charged. The trial court entered judgment of
conviction on Counts 1 and 2 only and sentenced Schumacher to twelve years
with two years suspended to probation on Count 1 and eight years with two
years suspended to probation on Count 2. The court ordered the sentences to
be served consecutively, for an aggregate term of twenty years, with sixteen
years to serve and four years suspended to probation.
[4] Schumacher now appeals his sentence.
Discussion and Decision
[5] Schumacher contends that his sentence is inappropriate and asks us to reduce it
pursuant to Indiana Appellate Rule 7(B), which provides that an appellate court
“may revise a sentence authorized by statute if, 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.” Among other
things, Schumacher argues that his sentence is inappropriate because the trial
court ordered the sentences on Counts 1 and 2 to run consecutively. The State
acknowledges that “legal authority exists prohibiting the imposition of
consecutive sentences for multiple controlled drug buys.” Appellee’s Br. p. 16.
Indeed, the Indiana Supreme Court held in Beno v. State that consecutive
sentences for “nearly identical State-sponsored buys” are inappropriate. 581
N.E.2d 922, 924 (Ind. 1991); see also Eckelbarger v. State, 51 N.E.3d 169, 170
(Ind. 2016); Gregory v. State, 644 N.E.2d 543, 544 (Ind. 1994), reh’g denied.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-30 | June 6, 2019 Page 3 of 5
[6] Here, Schumacher sold similar amounts of methamphetamine to the same
confidential informant within a forty-eight-hour period. Because the State
sponsored a series of virtually identical offenses, consecutive sentences are
inappropriate. Therefore, the sentences on Counts 1 and 2 must be run
concurrently, which will result in a total sentence of twelve years with two years
suspended to probation.
[7] To the extent Schumacher would argue that this revised sentence is
inappropriate, we disagree. The sentencing range for a Level 3 felony is three
to sixteen years with an advisory term of nine years. Here, the trial court
sentenced him on Count 1 to twelve years with two years suspended to
probation, which is an above-advisory sentence.
[8] Although there is nothing notable about Schumacher’s offenses here, and the
State acknowledges that Schumacher does not have an extensive criminal
history, he was previously convicted of a Class C felony burglary for which he
was sentenced to seven years with three and half years suspended to probation.
Schumacher ultimately violated the probation stemming from the burglary and
was sent back to jail. Schumacher also has four misdemeanor convictions
(operating a motor vehicle without ever receiving a license, illegal consumption
of an alcoholic beverage, assisting a criminal, and public intoxication) and
violated the terms of his probation in one of these cases. Given this criminal
history and failure on probation, the above-advisory sentence in this instance is
not inappropriate.
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[9] We remand this matter to the trial court for the entry of a revised sentencing
order and abstract of judgment indicating that the sentences on Counts 1 and 2
will run concurrently.
[10] Reversed and remanded.
Kirsch, J., and Altice, J., concur.
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