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: ATTORNEYS FOR APPELLEE:

MARIELENA DUERRING GREGORY F. ZOELLER

Duerring Law Offices Attorney General of Indiana 

South Bend, Indiana

KATHERINE MODESITT COOPER

Deputy Attorney General 

Indianapolis, Indiana 

IN THE

COURT OF APPEALS OF INDIANA

ELDON E. HARMON, )

)

Appellant-Defendant, )

)

vs. ) No. 20A05-1212-CR-634

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE ELKHART CIRCUIT COURT

The Honorable George W. Biddlecome, Judge

Cause No. 20D03-0910-FA-47

May 9, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Chief Judge
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Case Summary and Issues

Eldon E. Harmon appeals the trial court’s sentence of sixteen years for a Class B 

felony conviction of dealing in methamphetamine. Harmon raises two expanded and 

restated issues on appeal: 1) whether the trial court wrongly increased his sentence on 

remand, and 2) whether the sentence was inappropriate in light of the nature of the 

offense and Harmon’s character. Concluding that the sentence was neither wrongly 

increased nor inappropriate, we affirm.

Facts and Procedural History

In 2009, Harmon was charged with dealing in methamphetamine as a Class A 

felony. In 2011, a jury convicted Harmon of the offense, and Harmon was sentenced to 

forty years with ten years suspended to probation, for a total of thirty executed years. 

Harmon filed a direct appeal challenging the sufficiency of the evidence that elevated his 

charge from a Class B felony to a Class A felony. We found the evidence to be 

insufficient, and reversed and remanded with instructions for the trial court to enter a 

conviction for dealing in methamphetamine as a Class B felony and to resentence 

Harmon accordingly. Harmon v. State, 971 N.E.2d 674, 682 (Ind. Ct. App. 2012), trans. 

denied.

In November 2012, following a resentencing hearing, the trial court sentenced 

Harmon to sixteen years on the Class B felony. This appeal followed. Additional facts 

will be supplied as necessary.

Discussion and Decision

I. Increased Sentence

Harmon first argues that his sentence was wrongly increased on remand.
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It is well-established that when a defendant successfully challenges his 

conviction, the trial court may not impose a harsher sentence on remand 

absent changed circumstances. The rule is intended to curb the possible 

chilling effect upon a defendant’s right to appeal his conviction if he were 

faced with the prospect of a more severe sentence after retrial.

Barnett v. State, 599 N.E.2d 232, 233 (Ind. Ct. App. 1992) (citations and internal 

quotation marks omitted). Harmon’s original sentence was for a Class A felony, for 

which the potential range is between twenty and fifty years, with the advisory sentence 

being thirty years. Ind. Code § 35-50-2-4. Upon remand, Harmon was sentenced for a 

Class B felony, for which the potential range is between six and twenty years, with an 

advisory sentence of ten years. Ind. Code § 35-50-2-5. Harmon argues that his sixteen 

year sentence on remand is proportionally higher than his original thirty year executed 

sentence because his sentence on remand was enhanced six years above the advisory 

sentence, while his original Class A felony sentence was for an executed time equal to the 

advisory sentence. 

Firstly, as the State correctly points out, Harmon’s total sentence in each case was 

eighty percent of the statutory maximum (forty years is eighty percent of fifty, and 

sixteen years is eighty percent of twenty). Aside from proportionality, and most 

importantly, Harmon’s new sentence of sixteen years is quantitatively less than his 

original sentence of thirty years executed, and therefore could have no chilling effect on 

the right to appeal. See Misztal v. State, 620 N.E.2d 37, 38-39 (Ind. Ct. App. 1993) 

(holding, where the resentencing was proportionally greater, that there could be no 

chilling effect because the sentence was nonetheless reduced to a fewer number of years 

on resentencing). 
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Harmon also argues that the new sentence indicates that the court was vindictive. 

Here Harmon conflates the prosecution and the court, arguing that misrepresentation of 

facts, and a request of the maximum allowable sentence, by the State at the sentencing 

hearing underscore a vindictive motive in sentencing. We note that any 

misrepresentations appear to be relatively minor and there is no indication that they were 

intentional. Further, zealous prosecution does not implicate the court in vindictive 

sentencing. Here, the court declined to impose the maximum sentence of twenty years as 

requested by the State, which counters Harmon’s implication.

Finally, Harmon argues that only changed circumstances may justify an increased 

sentence on remand, and that no such circumstances were present here. We have already 

determined that the sentence on remand was not in fact increased, but we take this 

opportunity to note that the court largely reiterated the mitigating and aggravating factors 

from the original Class A felony, but did take into consideration Harmon’s participation 

in various programs while in jail and the Department of Correction in the interim; being 

unfamiliar with the programs, the court was not able to assign them much value. We 

have said before, under a previous sentencing scheme that made more overt use of 

mitigating and aggravating factors, that there was no authority “for the proposition that a 

resentencing court does not have the discretion to consider mitigating and aggravating 

factors in light of the conviction on a lesser or different charge.” Misztal, 620 N.E.2d at 

39. We see no reason here why the court could not re-evaluate factors in light of the 

Class B felony when determining a sentence, especially where the overall resulting 

sentence was shorter than the original. Harmon has clearly benefited from his original 

appeal, and we find no error in the court’s sentence of sixteen years on remand.
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II. Appropriateness of Sentence

A. Standard of Review

We are empowered by Indiana Appellate Rule 7(B) to 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 

burden is on the defendant to persuade us that his sentence has met this inappropriateness 

standard of review. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). When 

conducting this inquiry, we may look to any factors appearing in the record. Roney v. 

State, 872 N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied. 

B. Nature of the Offense and Character of the Offender

The headings of Harmon’s brief relate to our review of a sentence for 

inappropriateness. However, the body of his argument does not address this review, but 

instead focuses only on the increased sentence detailed above. In a single sentence 

relating to Harmon’s character, Harmon appears to argue that his character has changed 

for the better since his original sentencing, apparently relying on his participation in 

programs while in the Department of Correction, and Harmon’s statement at the 2012 

resentencing that, if given a second chance, he would like to be a father to his children 

and a productive member of society. We disagree that Harmon’s overall character, or the 

nature of the offense, render his sixteen year sentence inappropriate.

The trial court’s judgment of conviction in 2011, reiterated at the 2012 sentencing, 

included the following factors:

[Harmon] manufactured methamphetamine in a residential neighborhood, 

thus putting large numbers of people at risk from the deleterious effects of 

methamphetamine production. The court also notes that [Harmon] suffered 
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four adjudications of delinquency as a juvenile, one of which was for 

delivery of controlled substance; eleven misdemeanor convictions, several 

of which were controlled substance offenses; and two felony convictions, 

both of which involved substance abuse. In addition, [Harmon] has 

suffered multiple probation violations and community corrections 

violations, and has failed to appear for court proceedings on numerous 

occasions in the past. . . .

In looking at [Harmon’s] substance abuse history, the court 

acknowledges that it is clear that [Harmon] has a substance abuse problem; 

however, [Harmon] was given the opportunity to address that problem at 

least twice—once through the Center for Problem Resolution, and later 

through Oaklawn Hospital. He either failed or refused to responsibly 

address his addiction; therefore, the court ascribes little weight to that 

circumstance.

Appellant’s Appendix at 45. These factors are still relevant, and support Harmon’s 

enhanced Class B felony sentence of sixteen years. Harmon has failed to meet the 

standard of review on this issue. Despite Harmon’s assertion that he now hopes to be a 

better person, the overall nature of both his character and the offense leads us to conclude 

that his sentence was not inappropriate. 

Conclusion

Concluding that the trial court did not wrongly increase Harmon’s sentence on 

remand, and that the sentence is not inappropriate in light of his character or the nature of 

the offense, we affirm.

Affirmed. 

FRIEDLANDER, J., and CRONE, J., concur.