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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: DONALD C. SWANSON, JR. Fort Wayne, Indian

FILED
Feb 20 2009, 9:35 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana KELLY A. MIKLOS Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ANTION HILL, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 02A03-0807-CR-347

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Kenneth Scheibenberger, Judge Cause No. 02D04-0710-FB-149

February 20, 2009

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issue Following a guilty plea, Antion Hill was convicted of one count of dealing in a schedule I, II, or III controlled substance, a Class B felony, and was sentenced to eight years at the Indiana Department of Correction. Hill raises one issue on appeal: whether his eight-year sentence is inappropriate in light of the nature of his offense and his character. Concluding that the sentence is not inappropriate, we affirm. Facts and Procedural History On two occasions in March 2007, Hill sold oxycodone, a schedule II controlled substance, to an undercover police officer. The State charged Hill with two counts of dealing in a schedule I, II, or III controlled substance, both Class B felonies. Hill entered a plea of guilty to one count as charged and the State dismissed the other count. The plea agreement specified that Hills executed sentence could not exceed ten years. The trial court accepted the plea and sentenced Hill to eight years. The trial court cited Hills criminal history and failed prior attempts at drug rehabilitation as aggravating circumstances and Hills drug addiction as a mitigating circumstance. Discussion and Decision I. Standard of Review Pursuant to Indiana Appellate Rule 7(B), we may revise a sentence if, after due consideration of the trial courts decision, we find that the sentence "is inappropriate in light of the nature of the offense and the character of the offender." Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on rehg, 875 N.E.2d 218. We may "revise sentences when certain broad conditions are satisfied," Neale v. State, 826 N.E.2d 635,
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639 (Ind. 2005), and recognize that the advisory sentence "is the starting point the Legislature has selected as an appropriate sentence for the crime committed," Weiss v. State, 848 N.E.2d 1070, 1072 (Ind. 2006). In determining whether a sentence is

inappropriate, we may look to any factors appearing in the record. Roney v. State, 872 N.E.2d 192, 196 (Ind. Ct. App. 2007), trans. denied; cf. McMahon v. State, 856 N.E.2d 743, 750 (Ind. Ct. App. 2006) ("[I]nappropriateness review should not be limited ... to a simple rundown of the aggravating and mitigating circumstances found the by the trial court."). However, the defendant bears the burden to "persuade the appellate court that his . . . sentence has met this inappropriate standard of review." Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). II. Appropriateness of Hills Sentence Hill was convicted of dealing in a schedule I, II, or III controlled substance, a Class B felony. Class B felonies are punishable by "a fixed term of between six (6) and twenty (20) years, with the advisory sentence being ten (10) years." Ind. Code

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