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APPELLANT PRO SE
Sixto Cotto Pendleton, Indiana

ATTORNEYS FOR APPELLEE
Steve Carter Attorney General of Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 74S05-0506-CR-288 SIXTO COTTO, Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below). _________________________________ Appeal from the Spencer Circuit Court, No. 74C01-0302-FA-44 The Honorable Wayne A. Roell, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 74A05-0403-CR-131 _________________________________ June 23, 2005 Rucker, Justice.

Defendant Sixto Cotto challenges the fifty-year sentence he received after being convicted for possession of methamphetamine as a Class A felony. Finding the mitigating circumstances in balance with the aggravating circumstances, we revise Cotto's sentence to thirty years.

Facts and Procedural History

Armed with an arrest warrant for Cotto and a female companion, Indiana State Police officers went to Cotto's home on January 24, 2003. The home was near an elementary school. Several people were present, including the female companion and three of Cotto's minor children. While executing the warrant, the officers seized a white powdery substance later identified as twenty-nine grams of methamphetamine. The officers also seized a green leafy substance, later identified as marijuana, and an assortment of drug paraphernalia. Cotto was arrested and charged in a multi-count information with dealing in methamphetamine, a Class A felony; possession of methamphetamine within 1000 feet of a school, a Class A felony; possession of a controlled substance, a Class C felony; maintaining a common nuisance, a Class D felony; possession of marijuana, a Class A misdemeanor; reckless possession of paraphernalia, a Class A misdemeanor; and three separate counts of neglect of a dependent as Class D felonies.

Trial was scheduled for September 29, 2003. Three days before trial the State filed a motion to dismiss some of the counts. Specifically the State moved to dismiss all charges against Cotto with the exception of possession of methamphetamine, a Class A felony, 1 and reckless possession of paraphernalia, a Class A misdemeanor. As grounds for the dismissal, the State asserted the "motion is made in the interests of simplifying the case for the jury and judicial economy to speed the resolution of the charges." Appellant's App. at 181. The trial court granted the motion on the morning of trial. After the trial court addressed a few additional preliminary matters, and shortly before the trial court summoned the potential jurors into the courtroom, Cotto expressed his desire to plead guilty to the pending charges. After making

1

See Indiana Code section 35-48-4-6 which provides in relevant part: (a) A person who . . . knowingly or intentionally possesses . . . methamphetamine (pure or adulterated) commits possession of . . . methamphetamine, a Class D felony, except as provided in subsection (b). (b) The offense is . . . (3) a Class A felony if the person possesses the . . . methamphetamine in an amount (pure or adulterated) weighing at least three (3) grams . . . (B) in, on, or within one thousand (1,000) feet of: (i) school property . . . .

2

inquiry and advising Cotto of his constitutional rights, the trial court accepted Cotto's guilty plea, found him guilty as charged, and scheduled a sentencing hearing. There was no plea agreement.

At the conclusion of the sentencing hearing the trial court sentenced Cotto to a term of fifty years for the methamphetamine conviction and one year for the paraphernalia conviction. On direct appeal, Cotto challenged only his methamphetamine sentence contending it was excessive. decision. The Court of Appeals affirmed the sentence in an unpublished memorandum Cotto v. State, 74A05-0403-CR-131 (Ind. Ct. App. July 19, 2004). Cotto has

petitioned to transfer, which we now grant.

Discussion The Indiana Constitution provides, "The Supreme Court shall have, in all appeals of criminal cases, the power to review all questions of law and to review and revise the sentence imposed." Ind. Const. art. VII,

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