Anita Dustrude v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 26, 2019
• Docket: 19A-CR-127
• 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 Jun 26 2019, 9:56 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer A. Joas Curtis T. Hill, Jr. Madison, Indiana Attorney General of Indiana Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Anita Dustrude, June 26, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-127 v. Appeal from the Ripley Circuit Court State of Indiana, The Honorable Ryan J. King, Appellee-Plaintiff. Judge Trial Court Cause No. 69C01-1710-F4-18 & 69C01-1807- F5-30

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-127 | June 26, 2019 Page 1 of 12 STATEMENT OF THE CASE [1] Appellant-Defendant, Anita Dustrude (Dustrude), appeals her sentence

following her guilty plea for dealing in methamphetamine, a Level 4 felony,

Ind. Code § 35-48-4-1.1(a)(c)(2); dealing in methamphetamine, a Level 5

felony, I.C. § 35-48-4-1.1; maintaining a common nuisance, a Level 6 felony,

I.C. § 35-45-1-5(c); and unlawful possession of a syringe, a Level 6 felony, I.C. §

16-42-19-18.

[2] We affirm.

ISSUE [3] Dustrude presents us with one issue on appeal: Whether her sentence is

inappropriate in light of the nature of her offenses and her character.

FACTS AND PROCEDURAL HISTORY [4] On October 10, 2017, a confidential informant for the Indiana State Police

(ISP) made a controlled buy of one half of a gram of methamphetamine from

Dustrude at her residence on Meridian Street in Sunman, Indiana. Dustrude

had been supplying the confidential informant with methamphetamine for the

previous six months. Based on that controlled buy, on the same day, the ISP

procured and executed a search warrant for Dustrude’s home. The search of

Dustrude’s residence yielded methamphetamine, three hypodermic syringes, a

digital scale, a glass pipe, and cell phones. Dustrude claimed ownership of the

syringes and paraphernalia. After being asked several times, she denied having

any contraband on her person. Dustrude was arrested and transported to jail, Court of Appeals of Indiana | Memorandum Decision 19A-CR-127 | June 26, 2019 Page 2 of 12 where she again denied possessing any contraband. A strip search conducted

by a female officer revealed a white object protruding from Dustrude’s vagina.

Dustrude attempted to push the object further into her vaginal canal. Upon

being informed that a search warrant for her body cavities would be procured

and she would be transported to a hospital to have the object removed,

Dustrude tendered the two grams of methamphetamine she had secreted.

[5] On October 12, 2017, Dustrude was released on bond. On October 13, 2017,

the State filed an Information under Cause Number 69C01-1710-F4-18 (Cause

18), charging Dustrude with possession with intent to deal methamphetamine,

dealing in methamphetamine, maintaining a common nuisance, possession of a

hypodermic needle, and possession of paraphernalia. After being released on

bond, Dustrude admitted to an ISP trooper that she continued to deal

methamphetamine but intended to stop. Dustrude also expressed interest in

cooperating with law enforcement as a confidential informant. Law

enforcement resources were expended to develop Dustrude as an informant, but

ultimately she did not perform any of the expected work.

[6] The authorities continued to receive complaints regarding drug activity at

Dustrude’s residence. On July 23, 2018, ISP performed a trash pull at

Dustrude’s residence as part of their ongoing criminal investigation. The trash

pull yielded mail bearing Dustrude’s name as well as a baggie that tested

positive for methamphetamine. ISP procured a second search warrant for

Dustrude’s home which was executed on July 23, 2018. The second search of

Dustrude’s home produced more than one gram of methamphetamine, which

Court of Appeals of Indiana | Memorandum Decision 19A-CR-127 | June 26, 2019 Page 3 of 12 was found in Dustrude’s purse, digital scales, a glass pipe containing suspected

methamphetamine residue, a round orange pill identified as Schedule II

controlled substance amphetamine, and six alprazolam pills, a Schedule IV

controlled substance. Dustrude was interviewed and admitted that she used

and sold methamphetamine. Dustrude also identified three people to whom

she had sold methamphetamine in Sunman during the previous week.

[7] Three other individuals, Austin Eckstein, Atlanta Young, and Dustrude’s son,

Dominic, were present at the time of the execution of the search warrant and

were also arrested on drug-related charges. They were subsequently

interviewed and admitted to having used methamphetamine in Dustrude’s

residence. Eckstein admitted that Dustrude had provided him with

methamphetamine repeatedly. In his interview, Dominic admitted that he

would ask Young for methamphetamine and Young would procure the drugs

from Dustrude for Dominic. Both Eckstein and Dominic had driven Dustrude

to Ohio to procure more methamphetamine, a trip she made nearly daily.

[8] On July 24, 2018, the State filed an Information under Cause Number 69C01-

1807-F5-30 (Cause 30), charging Dustrude with dealing in methamphetamine,

possession of methamphetamine, maintaining a common nuisance, possession

of a controlled substance, and possession of paraphernalia. On October 4,

2018, pursuant to a plea agreement with the State, Dustrude pleaded guilty in

Court of Appeals of Indiana | Memorandum Decision 19A-CR-127 | June 26, 2019 Page 4 of 12 Cause 18 to dealing in methamphetamine as a Level 4 felony, 1 maintaining a

common nuisance, and unlawful possession of a syringe charges. Pursuant to

the same agreement, Dustrude pleaded guilty in Cause 30 to the dealing in

methamphetamine charge. According to the terms of the plea agreement, all of

the sentences for the Cause 18 offenses would be served concurrent to each

other but consecutively to the Cause 30 offense, and all other charges pending

against Dustrude in both Causes were to be dismissed by the State.

[9] The presentence investigation report filed in this matter revealed the following.

Dustrude was forty-six years old at the time of sentencing. Dustrude had no

record of criminal convictions prior to the instant offenses. She was

unemployed at the time of the offenses and had last been employed in 2015.

Dustrude reported that she first began consuming methamphetamine, heroin,

and alcohol at the age of forty. Dustrude had discontinued her daily heroin

habit at the age of forty-three but continued to use methamphetamine. She had

never received any treatment for her substance abuse.

[10] On October 4, 2018, the trial court held Dustrude’s sentencing hearing.

Dustrude testified that before being arrested for the Cause 30 offenses, she was

ingesting .4 grams of methamphetamine and drinking a fifth of vodka each day.

Dustrude informed the trial court that, as a result of being in custody awaiting

resolution of her case, she was sober for the first time in six years. Dustrude

1 The Level 4 felony in Cause 18 was originally charged as possession of methamphetamine with intent to deal.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-127 | June 26, 2019 Page 5 of 12 was attending Narcotics Anonymous meetings in jail. Dustrude stated that she

was ashamed of her conduct and expressed remorse for her actions.

[11] The trial court found as aggravating circumstances that Dustrude was free on

bond in Cause 18 when she committed the Cause 30 offense, which the trial

court found to be significantly aggravating, as it reflected poorly on her

character and was an indication of an increased likelihood that she would re-

offend. The trial court also found that the ongoing nature of Dustrude’s

methamphetamine dealing was an aggravator of substantial weight. In support

of that aggravating circumstance, the trial court found that Dustrude had sold

methamphetamine to a controlled informant; brought two grams of the drug

into the jail with intent to sell, despite being asked multiple times whether she

was concealing anything on her person; upon being released on bond in Cause

18, Dustrude expressed her desire to cease dealing but then dealt

methamphetamine again; and that after her arrest for the Cause 30 offenses, she

admitted to having sold methamphetamine to three other individuals that week.

The trial court found as a moderately mitigating circumstance that Dustrude

had pleaded guilty and accepted responsibility, finding that the cases “would

probably be hard to fight.” (Transcript p. 58). It also found Dustrude’s lack of

prior criminal history to be a mitigator but found that factor’s significance to be

diminished in light of her drug use during the previous six years.

[12] The trial court found that the aggravating circumstances substantially

outweighed the mitigators. In Cause 18, the trial court sentenced Dustrude to

nine years for the dealing in methamphetamine conviction and to two-year

Court of Appeals of Indiana | Memorandum Decision 19A-CR-127 | June 26, 2019 Page 6 of 12 terms for each of the other Level 6 felony convictions in that cause, to be served

concurrently to the dealing sentence. The trial court suspended one year from

the sentence imposed in Cause 18. In Cause 30, the trial court sentenced

Dustrude to five years, with two years suspended, and it ordered her to serve

that sentence consecutively to the sentence imposed in Cause 18, for an

aggregate sentence of fourteen years, with three years suspended to probation.

[13] Dustrude now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION [14] Dustrude contends that her sentence is inappropriate in light of the nature of

her offenses and her character. “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 revise 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).

[15] When assessing the nature of an offense, the advisory sentence is the starting

point that the legislature selected as an appropriate sentence for the particular

crime committed. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-127 | June 26, 2019 Page 7 of 12 Dustrude pleaded guilty to dealing methamphetamine, a Level 4 felony, and to

dealing methamphetamine, a Level 5 felony. She also pleaded guilty to two

Level 6 felonies for maintaining a common nuisance and unlawful possession

of a syringe. The sentencing range for a Level 4 felony is between two and

twelve years, with the advisory sentence being six years. I.C. § 35-50-2-5.5.

The sentencing range for a Level 5 felony is between one and six years, with the

advisory sentence being three years. I.C. § 35-50-2-6(b). Lastly, the sentencing

range for a Level 6 felony is between six months and two and one-half years,

with the advisory sentence being one year. I.C. § 35-50-2-7 (2016). The trial

court sentenced Dustrude to nine years for the Level 4 felony, five years for the

Level 5 felony, and two years for each of the Level 6 felonies. Thus, the trial

court imposed moderately-enhanced sentences for each of the offenses, ordered

the two Level 6 felony sentences to be served concurrently, and suspended a

total of three years from the aggregate sentence of fourteen years.

[16] When reviewing the nature of the offense, we look to the “the details and

circumstances of the commission of the offense and the defendant’s

participation.” Perry, 78 N.E.3d at 13. Dustrude sold methamphetamine to

citizens of Ripley County on an ongoing basis before and after the commission

of the October 10, 2017, offenses. After being charged in Cause 18, she

admittedly continued to deal methamphetamine until she was charged with the

Cause 30 offenses. Thus, as she acknowledges on appeal, there is ample

evidence in the record that she possessed with intent to deal or dealt

methamphetamine on more than the two occasions for which she was

Court of Appeals of Indiana | Memorandum Decision 19A-CR-127 | June 26, 2019 Page 8 of 12 convicted. Dustrude’s first interaction with law enforcement occurred when an

ISP trooper spoke with her at her home about the drug activity that was

occurring there. That interaction did not result in any charges for her, and it

should have constituted a warning to Dustrude that she should cease her

involvement with methamphetamine. A similar opportunity was afforded to

her after she was charged with the Cause 18 offenses and discussed with an ISP

trooper the fact that she was still dealing drugs. Dustrude even expressed her

desire to cease dealing, but, again, she did not, which led to her being charged

with the Cause 30 offenses when she was still on conditional release from the

Cause 18 offenses. We find the fact that Dustrude brought two grams of

methamphetamine into jail and fostered the drug use of her own son to be

particularly condemnable.

[17] Dustrude argues that the offenses did not merit the sentences imposed because

she was merely an addict who dealt to support her habit, hers was a small

operation, and she was not earning significant revenue. However, an addict

who escalates to dealing is still inflicting the harm of drug dealing on society

and is assisting others in pursuing their own addiction. In addition, although

Dustrude attempts to minimize the scale of her drug dealing, it was an

operation that involved at least three other people, one of whom was her son.

Accordingly, we find nothing inappropriate regarding the moderately enhanced

sentences imposed by the trial court or the trial court’s imposition of

consecutive sentences.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-127 | June 26, 2019 Page 9 of 12 [18] In addition, upon reviewing a sentence for inappropriateness, we look to a

defendant’s life and conduct as illustrative of her character. Morris v. State, 114

N.E.3d 531, 539 (Ind. Ct. App. 2018), trans. denied. Dustrude argues that her

lack of criminal record and her guilty plea merit a reduced sentence. We

acknowledge, as did the trial court, that Dustrude led a law-abiding life until the

age of forty, but we also find the significance of her lack of criminal record to be

diminished by the fact that she was using heroin and methamphetamine for six

years prior to her arrest for the Cause 18 offenses, and so was not leading a law-

abiding life despite never being convicted of a crime. See Conley v. State, 972

N.E.2d 864, 874 (Ind. 2012) (holding that the defendant’s lack of formal

criminal history was not a substantial mitigating circumstance in light of his

marijuana use). In addition, while it is true that Dustrude pleaded guilty and

accepted responsibility, given the weight of the evidence in the State’s

possession, the dismissal of the other charges, and the favorable concurrent

sentencing provision of her plea agreement, we find that this was a pragmatic

decision on her part which is not entitled to further consideration for sentencing

than that already accorded to it by the trial court. See Sensback v. State, 720

N.E.2d 1160, 1165 (Ind. 1999) (finding that a guilty plea is not substantially

mitigating if a defendant has received a considerable benefit for his plea); see also

Wells v. State, 836 N.E.2d 475, 479 (Ind. Ct. App. 2005) (holding that decision

to plead is not entitled to substantial mitigating weight if the evidence against

the defendant is such that his decision to plead guilty is a pragmatic one), trans.

denied.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-127 | June 26, 2019 Page 10 of 12 [19] Dustrude also directs our attention to the fact that she has “never received drug

treatment, whether it be inpatient or out-patient, court ordered or not.”

(Appellant’s Br. p. 15). Dustrude argues that she was eligible for home

detention, which would have afforded her the opportunity to receive treatment

for her drug addiction. In support of her argument, Dustrude relies on Hoak v.

State, 113 N.E.3d 1209 (Ind. 2019), in which our supreme court, conducting a

review pursuant to Indiana Appellate Rule 7(B), remanded Hoak’s three-year

sentence for Level 5 felony methamphetamine possession and her four-year

sanction for violating her probation for Class B felony methamphetamine

possession. Id. at 1209. In doing so, the court found it particularly significant

that, despite her many contacts with the criminal justice system due to her drug

addiction, she had never received any court-ordered substance abuse treatment.

Id. On remand, the court ordered the trial court to determine if Hoak was

eligible for community corrections, and if so, to allow her to serve half of her

sentence there so that she could receive substance abuse treatment. Id.

[20] We find Hoak to be distinguishable, as Dustrude pleaded guilty to two Counts

of dealing methamphetamine, as opposed to the simple possession offenses

involved in Hoak. In addition, unlike Hoak, here, the trial court has already

suspended three years from Dustrude’s sentence and ordered her to receive

substance abuse treatment as part of her probation. We also note that at

sentencing, Dustrude reported experiencing success in her sobriety as a result of

her attendance at Narcotics Anonymous, a commendable practice. However,

the deference that we accord the trial court’s sentencing decision will prevail

Court of Appeals of Indiana | Memorandum Decision 19A-CR-127 | June 26, 2019 Page 11 of 12 unless it is overcome with compelling evidence of “substantial virtuous traits

and persistent examples of good character.” Stephenson v. State, 29 N.E.3d 111,

122 (Ind. 2015). Having been presented with neither, we find that nothing

about Dustrude’s character renders the sentence imposed by the trial court

inappropriate.

CONCLUSION [21] Based on the forgoing, we conclude that Dustrude’s fourteen-year sentence,

with three years suspended to probation, is not inappropriate in light of the

nature of her offenses or her character.

[22] Affirmed.

[23] Bailey, J. and Pyle, J. concur

Court of Appeals of Indiana | Memorandum Decision 19A-CR-127 | June 26, 2019 Page 12 of 12