Court of Appeals of Indiana | Memorandum Decision 20A03-1410-CR-368| June 30, 2015 Page 1 of 8

MEMORANDUM DECISION

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

Elizabeth A. Bellin

Elkhart, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Kelly A. Miklos

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Duane R. Tackett,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 30, 2015

Court of Appeals Case No.

20A03-1410-CR-368

Appeal from the Elkhart Superior 

Court

The Honorable George W. 

Biddlecome, Judge

Cause No. 20D03-1403-FB-32

Najam, Judge.

Statement of the Case

[1] Duane R. Tackett appeals his convictions for two counts of dealing in 

methamphetamine, both as Class B felonies. Tackett presents one issue for our 
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review, namely, whether his sentence is inappropriate in light of the nature of 

his offenses and his character.

[2] We affirm.

Facts and Procedural History

[3] In January 2014, a cooperating source (“the CS”) approached the Goshen 

Police Department’s Interdiction and Covert Enforcement Unit (“ICE”) 

regarding Tackett’s girlfriend, Zabrina Brown. Brown had contacted the CS in 

hopes that she could sell methamphetamine to the CS, information that the CS 

relayed to ICE. In response, several undercover officers with ICE—Undercover 

Officer 120 (“UC 120”), Undercover Officer 151 (“UC 151”), and Undercover 

Officer 254 (“UC 254”)—arranged a controlled buy of methamphetamine 

between the CS and Brown to occur on January 27 at a gas station in Goshen.

[4] On January 27, UC 254 drove the CS to the gas station. UC 120 and UC 151 

monitored the transaction from a second vehicle, parked at a nearby vantage 

point. When the CS and UC 254 arrived at the gas station, the CS identified 

Brown as she exited the gas station. Brown crossed the parking lot and entered 

the passenger side of a blue BMW 525i that belonged to Tackett. At the time, 

Tackett was outside pumping gas into the BMW, and he waved the CS over to 

his vehicle. The CS then approached Tackett’s vehicle and entered on the rear

passenger side. When the CS entered the BMW, Tackett reentered the vehicle. 

At this point, the CS purchased two grams of methamphetamine for $200 from 
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Tackett and Brown. As a result of Tackett’s involvement in the controlled buy, 

he also became a target in ICE’s investigation of Brown.

[5] Two days later, on January 29, the same ICE undercover officers arranged a 

second controlled buy of methamphetamine between the CS and Brown to 

occur at a different gas station in Goshen. For the second time, UC 254 drove

the CS to the gas station, while UC 120 and UC 151 conducted surveillance 

from another vehicle parked nearby. When the CS and UC 254 arrived at the 

gas station, they observed Tackett’s blue BMW already parked there. When 

UC 254’s vehicle came to a stop, Brown exited the BMW’s driver side and 

walked to UC 254’s passenger window. The CS then exchanged $100 for two 

grams of methamphetamine, a gram each contained in two separate plastic 

bags. Believing the transaction to be over, the CS and UC 254 exited the gas 

station’s parking lot and turned onto an adjacent road. Shortly thereafter, 

Tackett ran across the parking lot and along the edge of the road, yelling to UC 

254 and the CS, “You owe me a hundred dollars.” Tr. at 136.

[6] UC 254 acknowledged Tackett and pulled back into the gas station’s parking 

lot. Brown indicated that she had mistakenly provided two grams of 

methamphetamine, an amount worth $200, for which the CS had paid only 

$100. Thus, the CS returned one gram of the methamphetamine, and the two 

again left the gas station.

[7] On March 28, the State charged Tackett with two counts of dealing in 

methamphetamine, both as Class B felonies, which corresponded to the sales 
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that occurred on January 27 and 29. The trial court held Tackett’s jury trial on 

July 21 and 22, at which Brown testified against Tackett.1 At the conclusion of 

his trial, the jury convicted Tackett on both counts. After a sentencing hearing,

held on September 18, the trial court sentenced Tackett to an aggregate term of,

sixteen years executed in the Indiana Department of Correction. In support of 

the sentence the court imposed, it stated:

In arriving at that sentence, the Court notes that the Defendant 

has four prior felony convictions, one previous misdemeanor 

conviction. The Court disputes the argument that the Defendant 

performed well in the community corrections facility setting. 

The Court notes that he violated the terms of his placement in a 

community corrections setting with respect to his 2005 sentences 

for Possession of Marijuana[,] as a Class D felony[,] and 

Maintaining a Common Nuisance[,] as a Class D Felony.

The Court further notes that the Indiana RISK Assessment 

System deems the Defendant a high risk to re-offend.[2] If the 

Defendant’s incarceration places a hardship on his mother, that 

was the Defendant’s choice . . . . So . . . if his mother suffers a 

hardship, he has no one to blame but himself.

He is clearly addicted to illicit drugs; however, the court notes 

that he was given the opportunity to address that addiction while 

at the Indiana Department of Correction facility. He either failed 

or refused to do so in a responsible manner.

 

1

 Brown entered an open plea to three counts of dealing in methamphetamine, all as Class B felonies. In her 

plea agreement, Brown agreed to testify against Tackett. Ultimately, Brown received concurrent sentences of 

twelve years in the Indiana Department of Correction, with six years suspended to probation.

2

 As Tackett correctly points out on appeal, he was actually deemed a moderate risk to reoffend.
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I do not agree with counsel’s assessment that Miss Brown is the 

more culpable of these two people. . . . He was clearly involved 

in this sale from the testimony of the officers, not Miss Brown. 

When the second transaction occurred, apparently the 

undercover officer didn’t pay for all of the drugs that were sold to 

him. Who tried to collect the extra money? It wasn’t Miss 

Brown. It was Mr. Tackett.

Tr. at 251-53. This appeal ensued.

Discussion and Decision

[8] Tackett contends that his sentence is inappropriate in light of the nature of his 

offenses and his character. Article 7, Sections 4 and 6 of the Indiana 

Constitution “authorize[] independent appellate review and revision of a 

sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind. 

Ct. App. 2007) (alteration in original). This appellate authority is implemented 

through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule 

7(B) requires the appellant to demonstrate that his sentence is inappropriate in 

light of the nature of his offenses and his character. Ind. Appellate Rule 7(B); 

Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess the 

trial court’s recognition or non-recognition of aggravators and mitigators as an 

initial guide to determining whether the sentence imposed was inappropriate. 

Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a 

defendant must persuade the appellate court that his or her sentence has met 

th[e] inappropriateness standard of review.” Roush, 875 N.E.2d at 812 

(alteration original).
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[9] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate 

sentence to the circumstances presented, and the trial court’s judgment “should 

receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224 

(Ind. 2008). The principal role of appellate review is to attempt to “leaven the 

outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the 

end of the day turns on “our sense of the culpability of the defendant, the 

severity of the crime, the damage done to others, and myriad other facts that 

come to light in a given case.” Id. at 1224.

[10] Specifically, Tackett argues that his sentence is inappropriate because (1) 

Brown, whom Tackett characterizes as being more culpable than he is, received 

a lesser sentence than he received; (2) he suffers from schizophrenia; (3) he has

a substance abuse problem; and (4) he was actually deemed a moderate, and 

not a high, risk to reoffend under the Indiana Risk Assessment standards. We 

cannot, however, state that Tackett’s sentence is inappropriate. 

[11] Tackett’s first contention relates to the nature of his offenses, in support of 

which he points us to Cardwell. Particularly, Tackett relies on Cardwell in an 

effort to portray his own offense as an outlier. He compares his executed 

sentence of sixteen years to Brown’s executed sentence of six years and argues, 

as he did to the trial court, that he “was the ‘less culpable’ participant [in their 

crimes], as [he] did not actively participate in either of the controlled buys for 

which he was charged and found guilty.” Appellant’s Br. at 9. But the trial 

court expressly rejected this argument, and we cannot say that the court erred 

when it did so. Indeed, at the January 27 sale of methamphetamine, Tackett 
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waved to the CS, and the sale did did not occur until Tackett reentered his

BMW. And as noted by the trial court, when the CS neglected to pay the full 

price for the methamphetamine purchased on January 29, Tackett, not Brown, 

attempted to “collect the extra money.” Tr. at 253.

[12] Further, Cardwell is inapposite here. First, Cardwell held that the trial court was 

not required to compare two defendants’ sentences to each other. See 895 

N.E.2d at 1226. Second, Tackett’s situation is unlike that present in Cardwell. 

There, Cardwell received a thirty-four year sentence, and his co-defendant 

received only an eighteen-month sentence, despite the fact that Cardwell was 

either equally “or even less culpable.” Id. Here, Brown’s executed term is ten

years less than Tackett’s sentence, but Brown’s entire sentence is only four years 

less than Tackett’s sentence, which is much different from the disparity present 

in Cardwell. Moreover, Tackett ignores the fact that Brown pleaded guilty and 

he did not. Therefore, Tackett’s sentence is not an outlier. The nature of his 

offenses do not support a revision of his sentence, and we affirm in this respect.

[13] Tackett’s next three contentions—his schizophrenia, his substance abuse, and 

his risk assessment—all relate to his character. Although, as noted above, the 

trial court did err when it stated that Tackett was deemed a high risk to 

reoffend, nevertheless we cannot say that Tackett’s character requires revision 

of his sentence. As the trial court noted, Tackett has four prior felony 

convictions, several of which are drug related, and one prior misdemeanor 

conviction. Further, Tackett previously violated the terms of his community 
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corrections placement. Thus, Tackett’s sentence also is not inappropriate in 

light of his character.

[14] Affirmed.

Baker, J., and Friedlander, J., concur.