Alisha M. King v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 11, 2017
• Docket: 02A03-1606-CR-1387
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jan 11 2017, 6:27 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Thomas C. Allen Curtis T. Hill Fort Wayne, Indiana Attorney General of Indiana

Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Alisha M. King, January 11, 2017 Appellant-Defendant, Court of Appeals Case No. 02A03-1606-CR-1387 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge Trial Court Cause No. 02D05-1504-F6-360 02D05-1408-F6-79

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1387 | January 11, 2017 Page 1 of 8 Case Summary [1] Alisha King appeals her aggregate four-year sentence for Level 6 felony

possession of a synthetic drug or lookalike substance and Level 6 felony

possession of paraphernalia. We affirm.

Issue [2] The sole issue before us is whether King’s sentence is inappropriate.

Facts [3] On December 10, 2014, the trial court sentenced King to two years suspended

to probation following her guilty plea to one count of Level 6 felony possession

of a synthetic drug or lookalike substance in cause number 02D05-1408-F6-79

(“F6-79”). On February 20, 2015, the State filed a petition alleging King

violated probation after she tested positive for cocaine. King admitted to

violating probation by using illegal drugs twice. On February 23, 2015, the trial

court placed King on HOPE probation.1 On March 3, 2015, the State filed a

petition to revoke King’s placement on HOPE probation after she failed to

report for a required meeting. King admitted to the allegation; the trial court

ordered her to spend three days in jail and returned her to HOPE probation

afterwards. On April 8, 2015, the State filed another petition to revoke King’s

placement on HOPE probation based on allegations that she failed to report for

1 HOPE probation “is a one year intense probation supervision program” operated by Allen Superior Court. See www.allensuperiorcourt.us/hope-program (last visited December 12, 2016).

Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1387 | January 11, 2017 Page 2 of 8 a required meeting and take a scheduled urine screen. King later admitted to

these violations.

[4] On April 27, 2015, the State charged King with Level 6 felony possession of

paraphernalia in cause number 02D05-1504-F6-360 (“F6-360”). This new

charge was added as a further allegation in support of revoking King’s

probation in cause number F6-79. On May 26, 2015, King pled guilty to this

charge. On the same date, the trial court ordered King to participate in its drug

court program under both cause numbers F6-79 and F6-360 and terminated her

supervised probation in F6-79. The State agreed that if King successfully

completed the drug court program, it would dismiss the F6-360 case and

satisfactorily discharge her from probation in the F6-79 case.

[5] On November 2, 2015, the State filed a petition to terminate King’s

participation in the drug court program. The petition alleged that King tested

positive for the use of cocaine and synthetic marijuana; that she voluntarily left

a required transitional living program; that she missed a required urine

screening; and that she missed a required court date. King admitted to these

allegations. On December 2, 2015, the trial court revoked King’s participation

in the drug court program and imposed a sentence of two years executed in

cause number F6-79 and a sentence of two years executed in cause number F6-

360, to be served consecutively.

[6] King filed separate notices of appeal in both cases, which were later

consolidated. On April 18, 2016, this court stayed consideration of the appeal

Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1387 | January 11, 2017 Page 3 of 8 and remanded for the trial court to consider whether the doctrine of

amelioration should apply to King’s sentence under cause number F6-360 in

light of the legislature’s reduction of that offense to a Class A misdemeanor,

effective July 1, 2015. On remand, the trial court declined to alter King’s

sentence. She now pursues this new, consolidated appeal from both cause

numbers F6-79 and F6-360.

Analysis [7] King’s argument is that her aggregate four-year sentence is inappropriate under

Indiana Appellate Rule 7(B) in light of her character and the nature of the

offenses. As the State points out, however, King’s sentence under cause

number F6-79 was the result of a probation revocation. Sentences following

revocation of probation are reviewable only for an abuse of discretion and Rule

7(B)’s inappropriateness standard is inapplicable. Prewitt v. State, 878 N.E.2d

184, 187-88 (Ind. 2007). King fails to make a cogent argument that her

probation revocation sentence under F6-79 was an abuse of discretion; as such,

any claim of error with respect to that sentence is waived. See Foutch v. State, 53

N.E.3d 577, 580 n.1 (Ind. Ct. App. 2016) (noting that party must make cogent

argument regarding abuse of discretion in sentencing separate from

inappropriateness analysis in order to preserve claim for appellate review).

Additionally, under Indiana Code Section 35-50-1-2(e), King was required to

serve her sentence for F6-360 consecutive to her sentence for F6-79, because she

was arrested for F6-360 before she was discharged from probation, parole, or a

term of imprisonment for F6-79. The trial court had no choice in the matter.

Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1387 | January 11, 2017 Page 4 of 8 As such, the only issue properly before us in this appeal is whether King’s two-

year sentence under cause number F6-360 is inappropriate.

[8] Although Rule 7(B) does not require us to be “extremely” deferential to a trial

court’s sentencing decision, we still must give due consideration to that

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

also understand and recognize the unique perspective a trial court brings to its

sentencing decisions. Id. “Additionally, a defendant bears the burden of

persuading the appellate court that his or her sentence is inappropriate.” Id.

[9] The principal role of Rule 7(B) review “should be to attempt to leaven the

outliers, and identify some guiding principles for trial courts and those charged

with improvement of the sentencing statutes, but not to achieve a perceived

‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

2008). We “should focus on the forest—the aggregate sentence—rather than

the trees—consecutive or concurrent, number of counts, or length of the

sentence on any individual count.” Id. Whether a sentence is inappropriate

ultimately turns on the culpability of the defendant, the severity of the crime,

the damage done to others, and myriad other factors that come to light in a

given case. Id. at 1224. When reviewing the appropriateness of a sentence

under Rule 7(B), we may consider all aspects of the penal consequences

imposed by the trial court in sentencing the defendant, including whether a

portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,

1025 (Ind. 2010).

Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1387 | January 11, 2017 Page 5 of 8 [10] The sentencing range for a Level 6 felony is between six months and two-and-

one-half years. Ind. Code § 35-50-2-7(b). King’s sentence was at the high end

of this range but was not a maximum sentence. King makes no argument in

this appeal that the doctrine of amelioration warranted a reduction of her

sentence.

[11] We concede there is no reason to think there is anything egregious about the

nature of the offense here, possession of paraphernalia. We also recognize that

King pled guilty to this offense, which reflects positively upon her character.

See Lopez v. State, 869 N.E.2d 1254, 1259 (Ind. Ct. App. 2007), trans. denied.

King also suggests that her remorse should have been a more significant factor

in her sentencing than what the trial court gave it. However, this court cannot

reassess the weight a trial court gives to any particular aggravator or mitigator,

which would be outside the scope of inappropriateness review in any event.

Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007). Furthermore, this court

cannot second-guess a trial court’s determination of the extent of a defendant’s

remorse, which is akin to a credibility determination. See Stout v. State, 834

N.E.2d 707, 711 (Ind. Ct. App. 2005), trans. denied. Similarly, the trial court

was not required to accept the testimony of a character witness for King at the

sentencing hearing who stated that “the light bulb” had come on for her “in the

last seventy-two (72) hours . . . .” Tr. p. 39.

[12] On the other side of the scales regarding King’s character, she was twenty-one

years old at the time of the current offense. She had a juvenile delinquency

adjudication for what would be Class A misdemeanor possession of marijuana

Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1387 | January 11, 2017 Page 6 of 8 and adult misdemeanor convictions for operating a vehicle without ever

receiving a license, possession of a synthetic drug or lookalike substance, and

possession of paraphernalia. The two possession convictions formed the basis

for King’s subsequent Level 6 felony convictions for possession of a synthetic or

lookalike drug and possession of paraphernalia.

[13] Most tellingly, after King’s conviction under cause number F6-79, she

repeatedly violated her probation and took advantage of the trial court’s

displays of leniency and attempts to treat her serious drug addictions in a

progressive manner. The trial court bent over backwards to assist King in

addressing her addiction problems by using a variety of methods short of

incarceration, including ordinary supervised probation, intensive probation, and

drug court. Unfortunately, those methods did not work. Although King has

not yet engaged in crime against third parties, it was not inappropriate for the

trial court to conclude that an extended period of incarceration was the only

option left to attempt to cure King of her addictions before such crime did

occur. As for King’s assertion that the trial court should have suspended part of

her sentence so that she could obtain rehabilitative services after being released

from incarceration, the trial court reasonably could have concluded that it was

unnecessary to do so in light of all the services that already had been offered to

King. In sum, we cannot say King’s sentence is inappropriate. See Littrell v.

State, 15 N.E.3d 646, 652-53 (Ind. Ct. App. 2014) (holding enhanced sentence

was not inappropriate in light of defendant’s criminal history and repeated

failure to successfully complete drug treatment programs), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1387 | January 11, 2017 Page 7 of 8 Conclusion [14] King’s two-year executed sentence for Level 6 felony possession of

paraphernalia under cause number F6-360 is not inappropriate, and she has

waived her argument with respect to the probation revocation sentence under

cause number F6-79. We affirm.

[15] Affirmed.

Kirsch, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1387 | January 11, 2017 Page 8 of 8