Bobbi Jo Carter v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 15, 2016
• Docket: 21A01-1601-CR-173
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 15 2016, 7:47 am

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 Mark Small Gregory F. Zoeller Indianapolis, Indiana Attorney General

Larry D. Allen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Bobbi Jo Carter, June 15, 2016 Appellant-Defendant, Court of Appeals Case No. 21A01-1601-CR-173 v. Appeal from the Fayette Circuit Court State of Indiana, The Honorable Beth A. Butsch Appellee-Plaintiff Trial Court Cause No. 21C01-1501-F4-90

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 21A01-1601-CR-173 | June 15, 2016 Page 1 of 5 Case Summary [1] Bobbi Jo Carter sold about half a gram of heroin to an informant in the

presence of her friend’s four-year-old daughter. Carter pled guilty to Level 4

felony dealing in a narcotic drug and Class A misdemeanor taking a minor to a

common nuisance. The trial court sentenced Carter to concurrent terms of

eight and a half years for the Level 4 felony and one year for the Class A

misdemeanor.

[2] Carter now appeals, arguing that her sentence is inappropriate. Finding that the

sentence is not inappropriate in light of the nature of the offenses and her

character, we affirm.

Facts and Procedural History [3] On the evening of January 28, 2015, Carter’s friend drove Carter to a

confidential informant’s house in Connersville. The friend’s four-year-old

daughter was in the back seat of the car. When they arrived at the house,

Carter sold about half a gram of heroin to the informant in the driveway.

Carter returned to the car, and the friend drove away. The police, who had

been monitoring the transaction, stopped them shortly thereafter.

[4] The State charged Carter with Count I, Level 4 felony dealing in a narcotic

drug in the physical presence of a child less than eighteen years of age, and

Court of Appeals of Indiana | Memorandum Decision 21A01-1601-CR-173 | June 15, 2016 Page 2 of 5 Count II, Class A misdemeanor taking a minor to a common nuisance. Carter

pled guilty to both charges without a plea agreement, with sentencing to be

determined by the trial court.

[5] At the sentencing hearing, Carter testified about traumatic events that had

occurred in her life, including witnessing her boyfriend’s suicide and being

raped by her step-father. Carter also testified that she had used alcohol and

drugs since age fourteen, completed a recovery program while in jail for these

crimes, and had checked herself out of a drug-treatment center one month

before these crimes. Carter admitted buying about seven grams of heroin daily

from Dayton, Ohio. She would then use five of these grams herself and sell the

other two grams in her community. At the conclusion of the sentencing

hearing, the trial court found two aggravating factors: (1) Carter distributed

heroin into the community “every day,” Tr. p. 95, and (2) Carter had a history

of criminal or delinquent behavior, including two juvenile adjudications for

escape, felony convictions for unlawful possession of precursors and receiving a

stolen vehicle, and one misdemeanor conviction for driving while suspended.

The court found no mitigating factors. The court sentenced Carter to eight and

a half years for Count I and one year for Count II, to be served concurrently.

[6] Carter now appeals her sentence.

Discussion and Decision

Court of Appeals of Indiana | Memorandum Decision 21A01-1601-CR-173 | June 15, 2016 Page 3 of 5 [7] Carter contends that her aggregate sentence of eight and a half years is

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

Appellate Rule 7(B) provides that an appellate court “may revise a sentence

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

Court finds that the sentence is inappropriate in light of the nature of the offense

and the character of the offender.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct.

App. 2008). Because we generally defer to the judgment of trial courts in

sentencing matters, Norris v. State, 27 N.E.3d 333, 335-36 (Ind. Ct. App. 2015),

defendants have the burden of persuading us that their sentences are

inappropriate, Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014).

“Whether a sentence is inappropriate ultimately turns on the culpability of the

defendant, the severity of the crime, the damage done to others, and a myriad

of other factors that come to light in a given case.” Id. (citing Cardwell v. State,

895 N.E.2d 1219, 1224 (Ind. 2008)).

[8] On Count I, a Level 4 felony, Carter faced a sentencing range of two to twelve

years, with an advisory sentence of six years. Ind. Code § 35-50-2-5.5. On

Count II, a Class A misdemeanor, Carter faced a sentence of up to one year.

Ind. Code § 35-50-3-2. The trial court imposed concurrent sentences of eight

and a half years for Count I and one year for Count II.

[9] Concerning the nature of the offenses, although Carter sold heroin to an

informant during a supervised buy, the child who was present was much

younger than eighteen years old. Furthermore, Carter’s character convinces us

that her sentence is not inappropriate. Carter has felony convictions for

Court of Appeals of Indiana | Memorandum Decision 21A01-1601-CR-173 | June 15, 2016 Page 4 of 5 unlawful possession of precursors and receiving a stolen vehicle, a

misdemeanor conviction for driving while suspended, and two juvenile

adjudications for escape. Although Carter completed a recovery program while

in jail for the crimes in this case, she checked herself out of a drug-treatment

center one month before these crimes. As the trial court noted, Carter, on a

daily basis, brought about seven grams of heroin from Dayton, Ohio, and sold

two of these grams into her local community. Despite her previous contacts

with the criminal-justice system and opportunities for rehabilitation, Carter has

not been deterred from criminal activities. Her character does not warrant a

reduction in her sentence.

[10] After due consideration of the trial court’s decision, we cannot say that Carter

persuaded us that her aggregate sentence of eight and a half years is

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

[11] Affirmed.

Barnes, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 21A01-1601-CR-173 | June 15, 2016 Page 5 of 5