Eddie Bluitt v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 13 2020, 10:38 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Suzy St. John Curtis T. Hill, Jr.
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Samantha M. Sumcad
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Eddie Bluitt, March 13, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1386
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Alicia A. Gooden,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G21-1804-F4-12898
Baker, Judge.
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[1] Eddie Bluitt appeals the sentence imposed by the trial court after he was
convicted of Level 4 felony dealing in a narcotic drug and Level 5 felony
dealing in a narcotic drug, arguing that (1) the trial court erred by rejecting
certain proffered mitigators; and (2) his sentence is inappropriate in light of the
nature of the offenses and his character. Finding no error and the sentence not
inappropriate, we affirm.
Facts
[2] On February 13, 2015, the Madison County Drug Task Force conducted a
controlled drug buy with Bluitt after receiving pertinent information from a
confidential informant about Bluitt’s potential involvement in heroin
trafficking. The undercover agent ended up purchasing approximately 2.95
grams of heroin and diphenhydramine from Bluitt. The Task Force conducted a
similar controlled drug buy on June 23, 2015, during which Bluitt sold the
undercover agent .97 grams of fentanyl.
[3] On April 20, 2018,1 the State charged Bluitt with one count of Level 4 felony
dealing in a narcotic drug and one count of Level 5 felony dealing in a narcotic
drug. Additionally, on February 28, 2019, the State alleged that Bluitt was an
habitual offender. At the conclusion of Bluitt’s trial on May 1, 2019, the jury
1
The record does not indicate why it took the State nearly three years to eventually arrest and charge Bluitt.
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found Bluitt guilty as charged. However, the jury found that Bluitt was not an
habitual offender.
[4] Following Bluitt’s May 16, 2019, sentencing hearing, the trial court sentenced
him to an aggregate term of eight years for the two counts, with five years to be
served in the Department of Correction, two years to be served on community
corrections, and one year suspended to probation. The trial court found Bluitt’s
substantial criminal history and past violations of probation and community
corrections to be aggravators. The trial court found no mitigators. Bluitt now
appeals.
Discussion and Decision
I. Mitigators
[5] First, Bluitt argues that the trial court erred by rejecting two proffered
mitigators—namely, the hardship that Bluitt’s incarceration will have on his
minor children and the fact that the quantity of drugs involved was lower than
typical drug offenses. As a general matter, sentencing decisions are left to the
sound discretion of the trial court. Smallwood v. State, 773 N.E.2d 259, 263 (Ind.
2002). We will reverse a sentencing decision regarding certain mitigators only if
the decision is clearly against the logic and effect of the facts and circumstances
before the trial court and all reasonable inferences drawn therefrom. Anglemyer
v. State, 868 N.E.2d 482, 490, clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
[6] Specifically, the trial court is under no obligation to find and/or use mitigators
in its sentencing analysis. Wingett v. State, 640 N.E.2d 372, 373 (Ind. 1994). In
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fact, the burden is on the defendant to establish that a proffered mitigator is
both significant and “clearly supported by the record,” Anglemyer, 868 N.E.2d
at 493, if he alleges that the trial court failed to identify a mitigating
circumstance.
[7] Simply put, Bluitt’s argument is unavailing for two main reasons. First, most of
Bluitt’s attempts to have us reexamine the proffered mitigators and their import
amount to nothing more than a request that we reweigh the evidence, which we
may not do. It is not the job of this Court to dissect every element of Bluitt’s
case and determine whether he has led a rather modest and crime-free lifestyle
warranting a sentence reduction. Rather, it is the province of this Court to
determine whether the trial court, in its sentencing analysis, erroneously
rejected certain proffered mitigators clearly supported by the record.
[8] And to that point, Bluitt’s argument is similarly unavailing because the trial
court already considered and rejected Bluitt’s proffered mitigators without any
indicia of error. With regards to whether Bluitt’s incarceration would cause a
hardship on his minor children, the trial court found, in pertinent part, as
follows:
The other thing that, you know, and I – I appreciate and
understand that [Bluitt] has children, grandchildren, family
members, that he cares about and obviously by virtue of the letters
that I’ve read and so forth that obviously care about him. I have
no doubt whatsoever that [Bluitt] has not [sic] played a significant
role in their lives. And has – has been there for them and has taken
them to lessons and activities and so forth. Um, I – I don’t dispute
that. However, these children have – were all alive at the time that
this offense were [sic] committed. And I dare say that . . . any of
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his children were aware that the same he might have been taken
[sic] kids at activities and feeding them dinner and watching them
or taking care of them or take [sic] them to the park, he was also
dealing drugs. Um, and – and that is the reason why this court
could not make a finding that there is a mitigating circumstance of
undue hardship on a dependent because that’s a credit to [Bluitt]
that isn’t deserved based on the facts and circumstances that are
present.
Tr. Vol. III p. 103. In other words, the trial court conceded that Bluitt cared
deeply for his minor children, but that the record showcased a very different
parent/child relationship. The trial court found that while Bluitt was parenting
his children, he was nevertheless dealing controlled substances in disregard of
his role as a parent and mentor. It was apparent to the trial court that Bluitt did
not value his children enough to refrain from committing these criminal
actions, and therefore, he was not entitled to use the hardship of his
incarceration as a mitigator during sentencing. In looking at the facts and
circumstances before the trial court, we find that its decision was not erroneous.
[9] With regards to the fact that the quantity of drugs involved was lower than in
typical drug offenses, the trial court found, in pertinent part, as follows:
Um, and the court recognizes that in terms of what [Bluitt] was
found guilty of, um, in the context of what this court sees in terms
of other cases, trials or not, this was a smaller amount of drugs
that were [sic] involved. However, the evidence that was presented
was – by the State, was far more convincing than many other cases
that this court has seen in other trials. Here we had two witnesses
that testified. We had video and audio evidence. We had a police
officer testify. We had significant, um, incredible this court finds
evidence of dealing. And that dealing might be a gram or two but
it’s dealing all the same. The jury found that there was dealing of
fentanyl, um, and whether or not [Bluitt] knew that that’s what
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that was or what fentanyl is to begin with is frankly besides the
point. And, um, is a small piece of, as [State’s counsel] said, small
piece of a very, very large horrible puzzle as to why there are
hundreds of people dying in our community and across our nation
because they’re not aware of what fentanyl is and how deadly it is.
So, the fact that [Bluitt] may have been a small fish in a larger sea
of drug trafficking apparently include – including his son, um,
does not excuse the behavior.
Id. at 102-03. Here, the trial court evaluated the totality of the circumstances
and saw nothing in the record clearly supporting the notion that the smaller
quantity of drugs in Bluitt’s case would be a potential mitigator. The State was,
in fact, required to prove beyond a reasonable doubt that Bluitt possessed the
quantity of drugs required for conviction under the Level 4 and Level 5 felony
statutes. So, as the trial court points out, the fact that Bluitt possessed only a
certain amount of narcotics does not take away from the severity of his crimes
or the concrete proof of both offenses.
[10] In sum, the trial court did not err by rejecting Bluitt’s proffered mitigators.
II. Appropriateness
[11] Next, Bluitt argues that the sentence imposed by the trial court is inappropriate
in light of the nature of the offenses and his character.
[12] Indiana Appellate Rule 7(B) states that a “Court may revise a sentence . . . 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.” The question is not whether another sentence is more
appropriate, but whether the defendant’s specific sentence is inappropriate.
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Steinberg v. State, 941 N.E.2d 515, 535 (Ind. Ct. App. 2011). In determining
whether the sentence is inappropriate, we will consider numerous factors such
as culpability of the defendant, the severity of the crime, the damage done to
others, and a “myriad [of] other factors that come to light in a given case.”
Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The defendant bears the
burden of persuading us that his sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
[13] For a Level 4 felony offense, the maximum sentence is twelve years, and the
minimum sentence is two years. Ind. Code § 35-50-2-5.5. The advisory sentence
is six years. Id. For a Level 5 felony offense, the maximum sentence is six years,
and the minimum sentence is one year. I.C. § 35-50-2-6(b). The advisory
sentence is three years. Id. Here, the trial court sentenced Bluitt to an aggregate
term of eight years for the two counts, with five years to be served in the
Department of Correction, two years to be served on community corrections,
and one year suspended to probation.
[14] First, as to the nature of the offenses, Bluitt has committed serious drug crimes.
Despite Bluitt’s attempts to downplay the severity of his actions, controlled
substance transactions and abuse have deleterious effects on a surrounding
community. The Madison County Drug Task Force deliberately set up two
separate controlled drug buys to see if Bluitt would sell drugs in willful defiance
of the law, and he did it both times. Though not the most harmful or grotesque
of criminal actions, Bluitt’s deeds are nevertheless damaging and specifically
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proscribed by Indiana law. Therefore, we find that the nature of the offenses
does not render Bluitt’s sentence inappropriate.
[15] Next, as to Bluitt’s character, Bluitt has a long criminal history. He has
previously been charged with and convicted of carrying a handgun without a
license, possession of cocaine, possession of marijuana, driving with a
suspended license, forgery, theft/receiving stolen property, dealing in
marijuana, and dealing in a narcotic drug with the intent to deliver. See Bailey v.
State, 763 N.E.2d 998, 1004 (Ind. 2002) (holding that a history of criminal
activity can reflect poorly on a defendant’s character at sentencing); see also
Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007) (holding that “it is
appropriate to consider such a [criminal] record as a poor reflection on the
defendant’s character, because it may reveal that he . . . has not been deterred
even after having been subjected to the police authority of the State[]”).
[16] More to the point, Bluitt has been convicted of multiple drug crimes very
similar to the crimes he was convicted of in this case, leading us to conclude
that Bluitt has not learned the error of his ways. The fact that Bluitt has
previously violated the terms of his probation and community corrections
further underscores this point. Put another way, despite multiple opportunities
for reform, Bluitt does not seem to understand the severity of his crimes and has
not indicated that he will change his behavior anytime soon. Thus, we find that
Bluitt’s character does not render his sentence inappropriate.
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[17] In sum, we will not revise Bluitt’s sentence pursuant to Indiana Appellate Rule
7(B).
[18] The judgment of the trial court is affirmed.
Riley, J., and Brown, J., concur.
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