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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: JOHN PINNOW Special Assistant to the State Public Defender Greenwood, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
KEVIN D. SMITH, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 52A04-0609-CR-487

APPEAL FROM THE MIAMI CIRCUIT COURT The Honorable Rosemary Higgins Burke, Judge Cause No. 52C01-0502-FA-36 and 52C01-0603-FB-49

February 15, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge

Kevin D. Smith pleaded guilty to Dealing in Methamphetamine, 1 a class B felony, and Attempted Dealing in Methamphetamine,2 a class B felony. The trial court sentenced Smith to consecutive terms of twenty years in prison, with ten years of the sentence for attempted dealing suspended to probation. Smith presents the following restated issues for review: 1. Did the trial court violate Blakely v. Washington with respect to Smith's enhanced sentence for dealing in methamphetamine? Is Smith's aggregate sentence inappropriate in light of his character and the nature of his offenses?

2.

We affirm in part, reverse in part, and remand. On January 28, 2005, a search warrant was executed at the residence shared by Smith and his girlfriend, Amber Comp. Among other things, police seized thirteen and one-half grams of methamphetamine. Both Smith and Comp were arrested during the search. The State subsequently charged Smith under Cause Number 52C01-0502-FA-36 (FA-36) with: Count 1, dealing in methamphetamine as a class A felony (based on possessing three or more grams of methamphetamine with intent to deliver); Count 2, maintaining a common nuisance, a class D felony; Count 3, possession of marijuana, a class A misdemeanor; and Count 4, possession of paraphernalia, a class A misdemeanor. Within a week, one of his friends, Curtis Malave, bailed Smith out of jail by writing a "bad check" in the amount of $9500.00. Transcript at 62. Upon Smith's release, Malave

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