Angela Thompson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 23, 2020
• Docket: 19A-CR-2370
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 23 2020, 9:21 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Christopher Sturgeon Curtis T. Hill, Jr. Jeffersonville, Indiana Attorney General of Indiana Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Angela Thompson, April 23, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2370 v. Appeal from the Clark Circuit Court State of Indiana, The Honorable Kenneth Lynn Appellee-Plaintiff. Lopp, Judge Pro Tempore Trial Court Cause No. 10C02-1702-F3-6

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2370 | April 23, 2020 Page 1 of 9 STATEMENT OF THE CASE [1] Appellant-Defendant, Angela Thompson (Thompson), appeals the trial court’s

sentence following her guilty plea to criminal recklessness with a deadly

weapon, a Level 6 felony, Ind. Code § 35-42-2-2; and possession of cocaine, a

Level 3 felony, I.C. § 35-48-4-6.

[2] We affirm.

ISSUES [3] Thompson presents two issues on appeal, which we restate as:

(1) Whether the trial court abused its discretion in identifying the mitigating

and aggravating circumstances; and

(2) Whether Thompson’s sentence is inappropriate in light of her character

and the nature of the offenses.

FACTS AND PROCEDURAL HISTORY [4] On January 28, 2017, Clarksville Police Department officers Randy Thomas

(Officer Thomas) and Tyler Jackson were dispatched to a Best Inn motel in

response to a phone call from a motel employee that a guest in room 128, later

identified as Thompson, had pointed a firearm at motel staff. Upon arrival at

the motel, the officers walked toward the motel staff standing in the laundry

room located near room 136. When motel staff directed the officers’ attention

to Thompson’s door, the officers observed Thompson “straddling the door” of

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2370 | April 23, 2020 Page 2 of 9 room 128 while pointing a handgun toward them. (Appellant’s App. Vol. II, p.

5). Officer Thomas immediately drew his weapon and the motel staff took

cover in the laundry room. Thompson retreated into the motel room and

slammed the door.

[5] More officers arrived and nearby guest rooms were evacuated. When an officer

contacted Thompson by telephone requesting her to leave the room, she

responded, “I am not coming out of the room and I am not giving up the

firearm, you all are going to have to come in here and get me.” (Appellant’s

App. Vol. II, p. 5). After the SWAT team arrived and took control of the

situation, Thompson exited the room unarmed and was taken into custody.

[6] After entering the room, the SWAT team located a semi-automatic handgun

with a loaded magazine in a nightstand drawer. In plain view, they located

lines of a white powdery substance identified as cocaine. There was a plastic

bag on the table, next to the lines, containing more cocaine. Additional cocaine

was discovered in a plastic bag hidden in a pair of pajama pants.

[7] On February 2, 2017, the State filed an Information, charging Thompson with

criminal recklessness with a deadly weapon, a Level 6 felony; possession of

cocaine, a Level 3 felony; and carrying a handgun without a license, a Class A

misdemeanor. On February 21, 2018, Thompson was released on her own

recognizance. As she failed to appear for a subsequent hearing, the trial court

issued a warrant for her arrest on June 20, 2018. On May 13, 2019, Thompson

pled guilty to Level 6 felony criminal recklessness with a deadly weapon and

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2370 | April 23, 2020 Page 3 of 9 Level 3 felony possession of cocaine. On June 17, 2019, the trial court

conducted a sentencing hearing and sentenced Thompson to one year for

criminal recklessness suspended to probation and to nine years for possession of

cocaine with four years suspended to probation, with sentences to run

concurrently.

[8] Thompson now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION I. Mitigating and Aggravating Circumstances

[9] Thompson contends that the trial court abused its discretion when it failed to

identify certain mitigating factors and mentioned certain aggravating

circumstances. So long as a sentence imposed by a trial court is within the

statutory range for the offense, it is subject to review only for an abuse of

discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g,

875 N.E.2d 218 (Ind. 2007). An abuse of the trial court’s sentencing discretion

occurs if its decision is clearly against the logic and effect of the facts and

circumstances before the court, or the reasonable, probable, and actual

deductions to be drawn therefrom. Id. A trial court abuses its discretion when

it fails to enter a sentencing statement at all, its stated reasons for imposing

sentence are not supported by the record, its sentencing statement omits reasons

that are clearly supported by the record and advanced for consideration, or its

reasons for imposing sentence are improper as a matter of law. Id. at 490-91.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2370 | April 23, 2020 Page 4 of 9 [10] With respect to mitigating circumstances, Thompson asserts that the trial court

failed to consider a defense witness’ testimony that she would respond

affirmatively to probation or short-term imprisonment. However, a review of

the sentencing transcript indicates that the trial court considered this factor, as

the court expressly noted the “testimony of witnesses” prior to pronouncing

sentence. (Transcript p. 19). Likewise, Thompson claims that the trial court

failed to consider her post-traumatic stress disorder as a possible mitigating

circumstance. Even though evidence of possible post-traumatic stress disorder

was presented through the testimony of a defense witness and Thompson

herself, the trial court is not obligated to “credit or weigh a possible mitigating

circumstance as defendant suggests it should be credited or weighed.” Archer v.

State, 689 N.E.2d 678, 684 (Ind. 1997).

[11] Turning to the trial court’s identification of aggravators, Thompson challenges

the trial court’s finding of her prior criminal history as an aggravating

circumstance. Specifically, she maintains that “[t]he mere fact of a criminal

record is not sufficient to aggravate a sentence. The trial court has to consider

the weight of the individual defendant’s history” which is measured by the

number of prior convictions, similarity, and their proximity to the instant

offense. (Appellant’s Br. p. 10). A defendant’s criminal history is a valid

aggravating factor. See I.C. § 35-38-1-7.1(a)(2). Thompson’s criminal history is

extensive and includes 10 misdemeanors and one felony. In reviewing

Thompson’s history, the trial court noted “a continued pattern here that just

continues. Different types of cases, but some similar as to what is pending here.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2370 | April 23, 2020 Page 5 of 9 . . .There are some other substance abuse cases and drug and alcohol abuse.”

(Tr. p. 19). Accordingly, as the trial court considered the similarity and

proximity of the charges in Thompson’s criminal history, the trial court did not

abuse its discretion in finding her criminal record as a valid aggravator.

II. Inappropriateness of Sentence

[12] Thompson also requests that we independently review the appropriateness of

her sentence. “Even when a trial court imposes a sentence within its discretion,

the Indiana Constitution authorizes independent appellate review and revision

of this sentencing decision.” Hoak v. State, 113 N.E.3d 1209, 1209 (Ind. 2019).

Thus, we may alter a sentence 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. Id. The principal role of such review

is to attempt to leaven the outliers. Cardwell v. State, 895 N.E.2d 1219, 1225

(Ind. 2008). The defendant bears the burden to persuade the reviewing court

that the sentence imposed is inappropriate. Robinson v. State, 91 N.E.3d 574,

577 (Ind. 2018).

[13] In considering the appropriateness of a sentence, we recognize the advisory

sentence is the starting point the Legislature selected as appropriate for the

crime committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). As such, the

maximum sentence for a Level 3 felony is sixteen years, with nine years being

the advisory sentence. I.C. § 35-50-2-5(b). The maximum sentence for a Level

6 felony is two-and-a-half years, with one year being the advisory sentence. I.C.

§ 35-50-2-7(b). Here, the trial court sentenced Thompson to one year for

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2370 | April 23, 2020 Page 6 of 9 criminal recklessness suspended to probation and to nine years for possession of

cocaine with four years suspended to probation.

[14] With respect to the nature of the crime, we do not turn a blind eye to “facts of

the incident that brought the defendant before” us or the “nature and

circumstances of the crime as well as the manner in which the crime is

committed.” Bethea v. State, 893 N.E.2d 1134, 1145 (Ind. 2013). The nature of

the crime is particularly troublesome. Thompson was in a public place—a hotel

hallway—brandishing a loaded handgun, frightening hotel employees, and

threatening police officers. Not only did Thompson refuse to leave peacefully,

the SWAT team had to be mobilized to place her under arrest. After she was in

custody, officers located 16 grams of cocaine—60% more than the minimum

amount that would support a Level 3 felony—with some of it poured into lines,

ready for use.

[15] Likewise, Thompson’s character does not warrant a downward revision of her

sentence. A defendant’s willingness to continue committing crimes is relevant

for analysis of her character under Appellate Rule 7(B). Garcia v. State, 47 N.E.

3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied. Thompson’s criminal history

is a lengthy one going back almost two decades. In 2001, Thompson was

convicted for criminal trespass in the third degree. In 2002, Thompson was

convicted for operating a motor vehicle under the influence of drugs or alcohol.

In 2007, she was convicted for possession of a controlled substance in the third

degree. Three years later, in 2010, Thompson was convicted for disorderly

conduct in the first degree. That same year, she was convicted for operating a

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2370 | April 23, 2020 Page 7 of 9 motor vehicle under the influence of drugs or alcohol. In 2014, she was

convicted for harassment involving physical contact. Also in 2014, she incurred

a conviction for disorderly conduct in the second degree, and terroristic

threatening in the third degree. In 2018, she was convicted for theft, a Class A

misdemeanor, and later that same year, she was convicted for possession of a

narcotic drug, a Level 6 felony. Her sentences have ranged from executed time

to suspended sentences; and after being released on her own recognizance in

the present case, she committed a pretrial release violation by failing to appear

for a hearing in this cause. Additionally, the trial court, while considering

Thompson’s criminal record, reflected on the “escalation” shown in the

progression of charges. (Tr. p. 20). Thompson’s PSI indicated that she is a

moderate risk to reoffend, but she also rated as a high risk to reoffend on three

out of the seven risk categories. As a result, Thompson is a poor candidate for

probation or a suspended sentence. See Malenchik v. State, 928 N.E.2d 564, 575

(Ind. 2010) (observing that courts may use risk assessment instruments in

formulating a manner in which a sentence is to be served).

[16] While Thompson’s mental health issues of bipolar disorder and post-traumatic

stress disorder appeared to have existed for some time, she failed to

demonstrate a nexus between her mental health and the offenses or that her

mental health limited her ability to function. Although we are sympathetic for

Thompson’s loss of her husband approximately one month before the instant

offense, we also acknowledge that his death occurred during “a drug deal gone

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2370 | April 23, 2020 Page 8 of 9 bad.” (Tr. p. 14). Thus, rather than being deterred from drugs and firearms,

Thompson endangered others by possessing and using both.

[17] Thompson also claims to have epilepsy, has taken college courses, maintained

employment in the three years leading up to this cause, and has abstained from

alcohol for several years. However, even taking these considerations into

account, we cannot say that she possesses substantial virtuous traits or

persistent examples of good character. See Phipps v. State, 90 N.E.3d 1190, 1199

(Ind. 2018) (evidence that defendant suffered from bipolar disorder, achieved

some college education and maintained a stable work history did not render

sentence inappropriate where she had squandered prior chances at reform).

Therefore, in light of the facts before us, we conclude that the trial court’s

imposed sentence is not inappropriate.

CONCLUSION [18] Based on the foregoing, we hold that the trial court properly identified the

mitigators and aggravators and Thompson’s sentence is not inappropriate in

light of the offense and her character.

[19] Affirmed.

[20] Mathias, J. and Tavitas, J. concur

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2370 | April 23, 2020 Page 9 of 9