Andrea K. Brown v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 13, 2018
• Docket: 18A-CR-31
• Status: Published

Opinion

MEMORANDUM DECISION FILED Jun 13 2018, 10:05 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 Stanley L. Campbell Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana

Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Andrea K. Brown, June 13, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-31 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge Trial Court Cause No. 02D04-1709-F6-1082

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-31 | June 13, 2018 Page 1 of 6 Case Summary [1] Andrea K. Brown appeals her two concurrent two-year sentences for possession

of cocaine or a narcotic drug and possession of a hypodermic syringe or needle,

as Level 6 felonies. We affirm.

Issue [2] The sole issue before us is whether Brown’s sentence is inappropriate in light of

the nature of her offenses and her character.

Facts [3] On September 19, 2017, as Fort Wayne police officers executed a search

warrant for a residence, a vehicle pulled into the driveway. The occupants gave

conflicting explanations for their presence at the scene. The police asked to

check the vehicle occupants’ identification, and Brown consented to a search of

her wallet. An officer opened her purse to remove her wallet and saw four used

syringes, charred spoons, and a plastic baggie with residue that was later

determined to be heroin.

[4] On September 25, 2017, the State charged Brown with possession of cocaine or

a narcotic drug and possession of a hypodermic syringe or needle, as Level 6

felonies. Brown pled guilty pursuant to a plea agreement on October 16, 2017.

She waived her right to sentencing within thirty days, and she was enrolled in

the drug court program. She was referred to an inpatient program, Park Center,

where staff learned of her heroin addiction.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-31 | June 13, 2018 Page 2 of 6 [5] Approximately five days after she was placed in Park Center, Brown committed

“severe and serious rule violations.” Tr. Vol. II p. 26. On November 6, 2017,

the State filed a verified petition to revoke Brown’s participation in the drug

court program because she had failed to comply with Park Center’s rules and

admitted to using heroin while residing at the facility. The State also alleged

that Brown possessed urine or a lookalike substance to interfere with urine drug

screens. At a hearing that same day, Brown admitted to the allegations. The

trial court revoked her participation in the drug court program.

[6] At Brown’s sentencing hearing on December 6, 2017, the trial court found, as

mitigating, Brown’s guilty plea, acceptance of responsibility, and expression of

remorse. Addressing Brown directly, the trial court also found the following

aggravating circumstances:

. . . [Y]our juvenile and adult criminal record, covering a period of time from 2011 to 2017, where you’ve had three adjudications as a juvenile with probation, drug counseling, community service, and residential placement, in addition to additional treatment. As an adult, you’ve got one misdemeanor and one prior felony conviction. You’ve been given the benefit of adult probation and the Drug Court Program and you were on probation at the time you committed these offenses.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-31 | June 13, 2018 Page 3 of 6 Id. at 29-30. The trial court imposed two concurrent two-year sentences for

possession of cocaine or a narcotic drug and possession of a hypodermic syringe

or needle, as Level 6 felonies.1 Brown now appeals.

Analysis [7] Brown contends that her sentence is inappropriate and invites us to reduce it

pursuant to Indiana Appellate Rule 7(B), which provides that we may revise a

sentence authorized by statute if, after due consideration of the trial court’s

decision, we find that the sentence “is inappropriate in light of the nature of the

offense and the character of the offender.” The defendant bears the burden to

persuade this Court that his or her sentence is inappropriate. Childress v. State,

848 N.E.2d 1073, 1080 (Ind. 2006). 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 (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.

1 The trial court ordered Brown’s sentences served consecutively to her sentence in another cause.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-31 | June 13, 2018 Page 4 of 6 [8] We consider all aspects of the penal consequences imposed by the trial court in

sentencing the defendant, including whether a portion of the sentence is ordered

suspended “or otherwise crafted using any of the variety of sentencing tools

available to the trial judge.” Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.

2010). In conducting our review, we do not look to see whether the defendant’s

sentence is appropriate or “if another sentence might be more appropriate;

rather, the question is whether the sentence imposed is inappropriate.” Fonner

v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007).

[9] The sentence for a Level 6 felony ranges from six months to two and one-half

years, with an advisory sentence of one year. Here, the trial court imposed two

concurrent two-year sentences for Brown’s convictions for possession of

cocaine or a narcotic drug and possession of a hypodermic syringe or needle, as

Level 6 felonies.

[10] As to the nature of her offenses, Brown—an admitted heroin addict—possessed

heroin, a syringe, and drug paraphernalia while she was on probation for

unlawful possession of a syringe. As regards her character, Brown’s refusal to

address her addiction issues and to conform her conduct reflects very poorly on

her character. The instant drug court violation resulted from her heroin use,

while she was enrolled in the drug court program, and while she resided in the

Park Center facility, thereby violating the terms of her drug court program

participation. She also possessed urine or a lookalike substance intended to

interfere with urine drug screening. Her prior criminal history includes

Court of Appeals of Indiana | Memorandum Decision 18A-CR-31 | June 13, 2018 Page 5 of 6 possession of a legend drug injection device, possession of paraphernalia, and

unlawful possession of a syringe.

[11] We acknowledge the uphill battle inherent in living with addiction, but we must

also note that Brown has been afforded multiple chances by our criminal justice

system to reform her behavior and to treat her substance abuse issues. She has

failed to take advantage of those opportunities, including the failed attempt at

drug court. Under the circumstances, she has not convinced us that her

sentence is inappropriate in light of the nature of the offenses or her character.

Conclusion [12] Brown’s sentence is not inappropriate in light of the nature of her offenses and

her character. We affirm.

[13] Affirmed.

Vaidik, C.J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-31 | June 13, 2018 Page 6 of 6