MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 05 2017, 9:13 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 Thomas C. Allen Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Anna M. Mincoff, June 5, 2017 Appellant-Defendant, Court of Appeals Case No. 02A05-1701-CR-43 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff Judge Trial Court Cause No. 02D04-1607-F6-781
Mathias, Judge.
[1] Anna M. Mincoff (“Mincoff”) pleaded guilty without a plea agreement in Allen
Superior Court to two Level 6 drug felonies and one Class A drug
Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-43 | June 5, 2017 Page 1 of 6 misdemeanor. Mincoff was sentenced to a term of one and one-half years
executed in the Department of Correction. She now appeals that sentence as
inappropriate.
[2] We affirm.
Facts and Procedural Posture
[3] Mincoff is a German immigrant with six dependent children, a mild criminal
history, and a long-standing dependence on illegal drugs. On July 7, 2016, in
Fort Wayne, Indiana, Mincoff was found unconscious in a bathroom
surrounded by a packet of solid heroin, a syringe of liquid heroin, and a packet
of “spice,” synthetic marijuana. Mincoff was arrested. On July 13, 2016, the
State charged Mincoff by information filed in Allen Superior Court with Level
6 felony possession of heroin, Level 6 felony possession of a syringe, and Class
A misdemeanor possession of a synthetic drug.
[4] On August 29, 2016, Mincoff pleaded guilty without benefit of a plea
agreement to all three charges. However, Mincoff and the State had agreed that
she should be allowed to participate in Allen County’s “drug court” program, a
deferred-adjudication program for drug abusers. See Ind. Code § 33-23-16-5
(defining “drug court”); Meadows v. State, 2 N.E.3d 788, 791–92 (Ind. Ct. App.
2014) (explaining operation). Mincoff was required to participate in transitional
living, outpatient treatment and therapy, and other services; to appear in court
when ordered; and to refrain from drug use and other criminal behavior. On
Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-43 | June 5, 2017 Page 2 of 6 successful completion of the program, the charges against her would be
dismissed.
[5] Mincoff did not complete the program successfully. On September 16, 2016,
she absconded from or was kicked out of her transitional-living placement. She
was arrested and released to a different placement. On October 7, 2016, she
absconded from or was kicked out of the second placement. She failed to
appear for a case management appointment on the same day and for a court
hearing on October 11, 2016. On November 3, 2016, she was arrested on a
bench warrant and charged with resisting law enforcement as a result. The State
petitioned to terminate Mincoff’s drug court participation on November 14,
2016. The court granted the petition the same day after Mincoff admitted
violating the terms of her participation agreement in open court.
[6] On December 13, 2016, Mincoff appeared for sentencing. In mitigation, the
court weighed Mincoff’s guilty plea, her acceptance of responsibility, and the
genuine remorse she showed for her failure to take advantage of the
opportunities given to her. In aggravation, the court weighed Mincoff’s criminal
history, including four misdemeanor convictions as an adult and one juvenile
delinquency adjudication, and her history of failed rehabilitation efforts,
including two probation revocations and the instant revocation of drug court
participation. The court sentenced Mincoff to concurrent sentences of one and
one-half years on the two Level 6 felonies, six months above the one-year
advisory sentence, I.C. § 35-50-2-7(b), and of one year on the Class A
Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-43 | June 5, 2017 Page 3 of 6 misdemeanor, the statutory maximum, id. § 3-2, all fully executed in the
Department of Correction.
[7] Mincoff now appeals, claiming her sentence is inappropriate. Mincoff argues an
executed sentence is inappropriate because she is not “a danger to society,”
Appellant’s Br. at 19, and because now, for the first time in her life, she
earnestly desires to rehabilitate herself. She asks us to suspend her executed
sentence and to order further drug treatment. The State responds that Mincoff’s
recidivism “demonstrates a lack of character and disregard for the rule of
law[.]” Appellee’s Br. at 10.
Discussion and Decision
[8] We have the authority, granted by our constitution and implemented by the
Appellate Rules, to review and revise a lawfully imposed 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.” Ind. Appellate Rule 7(B) (implementing Ind. Const. Art. 7, § 6). The
primary purpose of such review is to “leaven the outliers,” that is, to promote
consistency and uniformity in sentencing by restraining extraordinarily harsh or
lenient sentences. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We
examine the full range of penal consequences, id., including placement,
Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007), in light of the offender’s
culpability, the severity of the crime, the harm done to others, and any other
relevant facts of the individual case. Cardwell, 895 N.E.2d at 1224.
Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-43 | June 5, 2017 Page 4 of 6 [9] Mincoff bears the heavy burden of persuading us she has been inappropriately
sentenced. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Due
consideration of the trial court’s decision demands “considerable deference” on
our part, Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015), to the trial court’s
“special expertise” in the fact-intensive sentencing process. Scott v. State, 840
N.E.2d 376, 381 (Ind. Ct. App. 2006), trans. denied. Such deference prevails
“unless overcome by compelling evidence portraying [the offense and the
offender] in a positive light.” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[10] Mincoff has not carried her burden here. Neither Mincoff nor the State devote
much attention to the nature of her offenses; Mincoff notes only that her
commission of them happened in the “typical” way. Appellant’s Br. at 16. The
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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 05 2017, 9:13 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 Thomas C. Allen Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Anna M. Mincoff, June 5, 2017 Appellant-Defendant, Court of Appeals Case No. 02A05-1701-CR-43 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff Judge Trial Court Cause No. 02D04-1607-F6-781
Mathias, Judge.
[1] Anna M. Mincoff (“Mincoff”) pleaded guilty without a plea agreement in Allen
Superior Court to two Level 6 drug felonies and one Class A drug
Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-43 | June 5, 2017 Page 1 of 6 misdemeanor. Mincoff was sentenced to a term of one and one-half years
executed in the Department of Correction. She now appeals that sentence as
inappropriate.
[2] We affirm.
Facts and Procedural Posture
[3] Mincoff is a German immigrant with six dependent children, a mild criminal
history, and a long-standing dependence on illegal drugs. On July 7, 2016, in
Fort Wayne, Indiana, Mincoff was found unconscious in a bathroom
surrounded by a packet of solid heroin, a syringe of liquid heroin, and a packet
of “spice,” synthetic marijuana. Mincoff was arrested. On July 13, 2016, the
State charged Mincoff by information filed in Allen Superior Court with Level
6 felony possession of heroin, Level 6 felony possession of a syringe, and Class
A misdemeanor possession of a synthetic drug.
[4] On August 29, 2016, Mincoff pleaded guilty without benefit of a plea
agreement to all three charges. However, Mincoff and the State had agreed that
she should be allowed to participate in Allen County’s “drug court” program, a
deferred-adjudication program for drug abusers. See Ind. Code § 33-23-16-5
(defining “drug court”); Meadows v. State, 2 N.E.3d 788, 791–92 (Ind. Ct. App.
2014) (explaining operation). Mincoff was required to participate in transitional
living, outpatient treatment and therapy, and other services; to appear in court
when ordered; and to refrain from drug use and other criminal behavior. On
Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-43 | June 5, 2017 Page 2 of 6 successful completion of the program, the charges against her would be
dismissed.
[5] Mincoff did not complete the program successfully. On September 16, 2016,
she absconded from or was kicked out of her transitional-living placement. She
was arrested and released to a different placement. On October 7, 2016, she
absconded from or was kicked out of the second placement. She failed to
appear for a case management appointment on the same day and for a court
hearing on October 11, 2016. On November 3, 2016, she was arrested on a
bench warrant and charged with resisting law enforcement as a result. The State
petitioned to terminate Mincoff’s drug court participation on November 14,
2016. The court granted the petition the same day after Mincoff admitted
violating the terms of her participation agreement in open court.
[6] On December 13, 2016, Mincoff appeared for sentencing. In mitigation, the
court weighed Mincoff’s guilty plea, her acceptance of responsibility, and the
genuine remorse she showed for her failure to take advantage of the
opportunities given to her. In aggravation, the court weighed Mincoff’s criminal
history, including four misdemeanor convictions as an adult and one juvenile
delinquency adjudication, and her history of failed rehabilitation efforts,
including two probation revocations and the instant revocation of drug court
participation. The court sentenced Mincoff to concurrent sentences of one and
one-half years on the two Level 6 felonies, six months above the one-year
advisory sentence, I.C. § 35-50-2-7(b), and of one year on the Class A
Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-43 | June 5, 2017 Page 3 of 6 misdemeanor, the statutory maximum, id. § 3-2, all fully executed in the
Department of Correction.
[7] Mincoff now appeals, claiming her sentence is inappropriate. Mincoff argues an
executed sentence is inappropriate because she is not “a danger to society,”
Appellant’s Br. at 19, and because now, for the first time in her life, she
earnestly desires to rehabilitate herself. She asks us to suspend her executed
sentence and to order further drug treatment. The State responds that Mincoff’s
recidivism “demonstrates a lack of character and disregard for the rule of
law[.]” Appellee’s Br. at 10.
Discussion and Decision
[8] We have the authority, granted by our constitution and implemented by the
Appellate Rules, to review and revise a lawfully imposed 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.” Ind. Appellate Rule 7(B) (implementing Ind. Const. Art. 7, § 6). The
primary purpose of such review is to “leaven the outliers,” that is, to promote
consistency and uniformity in sentencing by restraining extraordinarily harsh or
lenient sentences. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We
examine the full range of penal consequences, id., including placement,
Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007), in light of the offender’s
culpability, the severity of the crime, the harm done to others, and any other
relevant facts of the individual case. Cardwell, 895 N.E.2d at 1224.
Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-43 | June 5, 2017 Page 4 of 6 [9] Mincoff bears the heavy burden of persuading us she has been inappropriately
sentenced. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Due
consideration of the trial court’s decision demands “considerable deference” on
our part, Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015), to the trial court’s
“special expertise” in the fact-intensive sentencing process. Scott v. State, 840
N.E.2d 376, 381 (Ind. Ct. App. 2006), trans. denied. Such deference prevails
“unless overcome by compelling evidence portraying [the offense and the
offender] in a positive light.” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[10] Mincoff has not carried her burden here. Neither Mincoff nor the State devote
much attention to the nature of her offenses; Mincoff notes only that her
commission of them happened in the “typical” way. Appellant’s Br. at 16. The
trial court must have agreed, to the extent it imposed a fairly “typical” sentence.
[11] As to Mincoff’s character, her arguments largely amount to a request that we
reweigh the aggravators and mitigators found by the trial court in an effort to
fashion a more appropriate sentence. This we will not do. The question “is not
whether another sentence is more appropriate, [but] whether the sentence
imposed is inappropriate.” King, 894 N.E.2d at 268 (original emphasis). The
trial court concluded that two probation revocations and one drug-court
participation revocation sufficiently demonstrated the futility of suspending
Mincoff’s sentence in this case, and Mincoff has not presented compelling
evidence to the contrary.
Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-43 | June 5, 2017 Page 5 of 6 [12] Mincoff’s better arguments are that she is not, and has never shown herself to
be, a dangerous or violent person; and that, upon her unsupervised release from
incarceration, she will be without resources to seek treatment and further
rehabilitation. We might find the first argument persuasive if there were a
presumption against incarceration for nonviolent offenders, but there is not.
The second argument reflects an inevitable consequence of our public health
policy but is not a basis for revising Mincoff’s sentence. We note that treatment
or counseling is likely to be available to Mincoff in prison.
Conclusion
[13] Mincoff’s executed sentence was not inappropriate in light of the nature of her
offense or her character. The judgment of the trial court is therefore affirmed.
[14] Affirmed.
Kirsch, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-43 | June 5, 2017 Page 6 of 6