MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as Jul 27 2015, 7:04 am precedent or cited before any 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 Donald J. Frew Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana
Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Bonnie Motsch, July 27, 2015
Appellant-Defendant, Court of Appeals Cause No. 02A03-1412-CR-451 v. Appeal from the Allen Superior Court Cause No. 02D06-1401-FD-16; State of Indiana, 02D06-1407-FD-721; 02D06-1405- Appellee-Plaintiff. CM-2130
The Honorable Frances C. Gull, Judge The Honorable Samuel Keirns, Magistrate
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-451 | July 27, 2015 Page 1 of 8 Case Summary [1] Bonnie Motsch appeals her sentence of six years after pleading guilty to Class D
felony theft, Class A misdemeanor possession of paraphernalia, Class A
misdemeanor driving while suspended, and Class D felony possession of a
controlled substance. We affirm.
Issue [2] Motsch raises one issue on appeal, which we restate as whether her sentence is
inappropriate in light of the nature of the offenses committed and her character.
Facts [3] On December 29, 2013, a Walmart loss prevention officer reported a theft
incident involving Motsch. Motsch had placed several goods in her purse and
went beyond all points of sale without paying. When the loss prevention officer
attempted to stop her, Motsch started to run away. During the pursuit, Motsch
attempted to hide her purse under a car. The purse was recovered with the
many stolen items inside. Motsch admitted to stealing the items with the
intention to resell them. On January 3, 2014, the State charged Motsch with
Class D felony theft under cause number 02D06-1401-FD-16 (“FD-16”).
[4] While out on bond for the FD-16 offense, Motsch drove an uninsured vehicle
with a suspended license. While operating the car illegally with other
passengers inside, Motsch placed a hypodermic needle on the dashboard.
Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-451 | July 27, 2015 Page 2 of 8 When pulled over by police officers, Motsch denied that any illegal substances
were in the vehicle. After obtaining consent from the owner to search the
vehicle, officers found Motsch’s hypodermic needle, which she admitted was
hers and had been used to inject heroin a few days prior. On May 29, 2014,
Motsch was charged with possession of paraphernalia and driving while
suspended, both class A misdemeanors, along with two traffic infractions of
operating a motor vehicle without financial responsibility and improper display
of a license plate on a vehicle, under cause number 02D06-1405-CM-2130
(“CM-2130”).
[5] After Motsch failed to appear for a hearing, a warrant was issued for her arrest.
On July 1, 2014, she was arrested and had a controlled substance in her
possession. Motsch was charged with possession of a controlled substance, a
class D felony, under cause number 02D06-1407-FD-721 (“FD-721”). She
committed this offense while out on bond under both FD-16 and CM-2130. On
July 21, 2014, Motsch entered into a plea agreement whereby she agreed to
plead guilty to theft, possession of paraphernalia, driving while suspended, and
possession of a controlled substance. The State dismissed the traffic infractions.
[6] On November 20, 2014, under FD-16, Motsch was sentenced to two years and
ordered to pay $103.11 in restitution. Under CM-2130, Motsch was sentenced
concurrently to one year for possession of paraphernalia and one year for
driving while suspended. Under FD-721, Motsch was sentenced to three years.
The sentences will be served consecutively for an aggregate sentence of six
years. Motsch now appeals.
Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-451 | July 27, 2015 Page 3 of 8 Analysis [7] We assess whether Motsch’s sentence is inappropriate under Indiana Appellate
Rule 7(B) in light of her character and the nature of the offense. See Anglemyer
v. State, 868 N.E.2d 482, 491 (Ind. 2007). Although Rule 7(B) does not require
us to be “extremely” deferential to a trial court’s sentencing decision, we still
must give due consideration to that decision. Rutherford v. State, 866 N.E.2d
867, 873 (Ind. Ct. App. 2007). We also understand and recognize the unique
perspective a trial court brings to its sentencing decisions. Id. “Additionally, a
defendant bears the burden of persuading the appellate court that his or her
sentence is inappropriate.” Id.
[8] The principal role of Rule 7(B) review “should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). We “should focus on the forest—the aggregate sentence—rather than
the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id. Whether a sentence is inappropriate
ultimately turns on the culpability of the defendant, the severity of the crime,
the damage done to others, and myriad other factors that come to light in a
given case. Id. at 1224. When reviewing the appropriateness of a sentence
under Rule 7(B), we may consider all aspects of the penal consequences
imposed by the trial court in sentencing the defendant, including whether a
Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-451 | July 27, 2015 Page 4 of 8 portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,
1025 (Ind. 2010).
[9] Regarding the nature of the offenses, it is important to consider that Motsch
committed several crimes within a short time period. We acknowledge that
Motsch’s offenses were not particularly egregious or heinous; however, the
various crimes were committed less than a year apart.
[10] Motsch not only stole $100 worth of merchandise from Walmart, but the items
she stole were too damaged to be returned to stock. Less than a month later,
while out on bond for that offense, Motsch drove an uninsured vehicle with a
suspended license. While operating the vehicle with other occupants inside,
Motsch set a hypodermic needle on the dashboard. After being pulled over by
police and questioned about contraband inside the car, Motsch did not inform
officers about the hypodermic needle on the dashboard and told officers that the
vehicle contained no contraband. Following this arrest, Motsch was ordered to
report to a drug court program.
[11] Twenty-one days after Motsch entered into the drug court program, Motsch
tested positive for both morphine and alcohol use. Two days later, Motsch
tested positive for drugs again. Less than a month after entering the program,
Motsch skipped at least one drug screen and was subsequently terminated from
the program. Motsch also twice failed to appear in court for a drug court
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as Jul 27 2015, 7:04 am precedent or cited before any 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 Donald J. Frew Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana
Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Bonnie Motsch, July 27, 2015
Appellant-Defendant, Court of Appeals Cause No. 02A03-1412-CR-451 v. Appeal from the Allen Superior Court Cause No. 02D06-1401-FD-16; State of Indiana, 02D06-1407-FD-721; 02D06-1405- Appellee-Plaintiff. CM-2130
The Honorable Frances C. Gull, Judge The Honorable Samuel Keirns, Magistrate
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-451 | July 27, 2015 Page 1 of 8 Case Summary [1] Bonnie Motsch appeals her sentence of six years after pleading guilty to Class D
felony theft, Class A misdemeanor possession of paraphernalia, Class A
misdemeanor driving while suspended, and Class D felony possession of a
controlled substance. We affirm.
Issue [2] Motsch raises one issue on appeal, which we restate as whether her sentence is
inappropriate in light of the nature of the offenses committed and her character.
Facts [3] On December 29, 2013, a Walmart loss prevention officer reported a theft
incident involving Motsch. Motsch had placed several goods in her purse and
went beyond all points of sale without paying. When the loss prevention officer
attempted to stop her, Motsch started to run away. During the pursuit, Motsch
attempted to hide her purse under a car. The purse was recovered with the
many stolen items inside. Motsch admitted to stealing the items with the
intention to resell them. On January 3, 2014, the State charged Motsch with
Class D felony theft under cause number 02D06-1401-FD-16 (“FD-16”).
[4] While out on bond for the FD-16 offense, Motsch drove an uninsured vehicle
with a suspended license. While operating the car illegally with other
passengers inside, Motsch placed a hypodermic needle on the dashboard.
Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-451 | July 27, 2015 Page 2 of 8 When pulled over by police officers, Motsch denied that any illegal substances
were in the vehicle. After obtaining consent from the owner to search the
vehicle, officers found Motsch’s hypodermic needle, which she admitted was
hers and had been used to inject heroin a few days prior. On May 29, 2014,
Motsch was charged with possession of paraphernalia and driving while
suspended, both class A misdemeanors, along with two traffic infractions of
operating a motor vehicle without financial responsibility and improper display
of a license plate on a vehicle, under cause number 02D06-1405-CM-2130
(“CM-2130”).
[5] After Motsch failed to appear for a hearing, a warrant was issued for her arrest.
On July 1, 2014, she was arrested and had a controlled substance in her
possession. Motsch was charged with possession of a controlled substance, a
class D felony, under cause number 02D06-1407-FD-721 (“FD-721”). She
committed this offense while out on bond under both FD-16 and CM-2130. On
July 21, 2014, Motsch entered into a plea agreement whereby she agreed to
plead guilty to theft, possession of paraphernalia, driving while suspended, and
possession of a controlled substance. The State dismissed the traffic infractions.
[6] On November 20, 2014, under FD-16, Motsch was sentenced to two years and
ordered to pay $103.11 in restitution. Under CM-2130, Motsch was sentenced
concurrently to one year for possession of paraphernalia and one year for
driving while suspended. Under FD-721, Motsch was sentenced to three years.
The sentences will be served consecutively for an aggregate sentence of six
years. Motsch now appeals.
Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-451 | July 27, 2015 Page 3 of 8 Analysis [7] We assess whether Motsch’s sentence is inappropriate under Indiana Appellate
Rule 7(B) in light of her character and the nature of the offense. See Anglemyer
v. State, 868 N.E.2d 482, 491 (Ind. 2007). Although Rule 7(B) does not require
us to be “extremely” deferential to a trial court’s sentencing decision, we still
must give due consideration to that decision. Rutherford v. State, 866 N.E.2d
867, 873 (Ind. Ct. App. 2007). We also understand and recognize the unique
perspective a trial court brings to its sentencing decisions. Id. “Additionally, a
defendant bears the burden of persuading the appellate court that his or her
sentence is inappropriate.” Id.
[8] The principal role of Rule 7(B) review “should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). We “should focus on the forest—the aggregate sentence—rather than
the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id. Whether a sentence is inappropriate
ultimately turns on the culpability of the defendant, the severity of the crime,
the damage done to others, and myriad other factors that come to light in a
given case. Id. at 1224. When reviewing the appropriateness of a sentence
under Rule 7(B), we may consider all aspects of the penal consequences
imposed by the trial court in sentencing the defendant, including whether a
Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-451 | July 27, 2015 Page 4 of 8 portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,
1025 (Ind. 2010).
[9] Regarding the nature of the offenses, it is important to consider that Motsch
committed several crimes within a short time period. We acknowledge that
Motsch’s offenses were not particularly egregious or heinous; however, the
various crimes were committed less than a year apart.
[10] Motsch not only stole $100 worth of merchandise from Walmart, but the items
she stole were too damaged to be returned to stock. Less than a month later,
while out on bond for that offense, Motsch drove an uninsured vehicle with a
suspended license. While operating the vehicle with other occupants inside,
Motsch set a hypodermic needle on the dashboard. After being pulled over by
police and questioned about contraband inside the car, Motsch did not inform
officers about the hypodermic needle on the dashboard and told officers that the
vehicle contained no contraband. Following this arrest, Motsch was ordered to
report to a drug court program.
[11] Twenty-one days after Motsch entered into the drug court program, Motsch
tested positive for both morphine and alcohol use. Two days later, Motsch
tested positive for drugs again. Less than a month after entering the program,
Motsch skipped at least one drug screen and was subsequently terminated from
the program. Motsch also twice failed to appear in court for a drug court
program status hearing and warrants were issued for her arrest. When she was
arrested, she had a controlled substance in her possession.
Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-451 | July 27, 2015 Page 5 of 8 [12] Along with her contention about the nature of the offenses, Motsch claims that
her sentence is inappropriate in light of her character. We acknowledge
positive character traits such as Motsch accepting responsibility for her
wrongdoings and being remorseful about her actions, as indicated by her
pleading guilty. However, we see no “substantial virtuous traits or persistent
examples of good character.” See Stephenson v. State, 29 N.E.3d 111, 122 (Ind.
2015). These positive attributes cannot be evaluated in isolation without
understanding the totality of Motsch’s character. Motsch argues she has a
“sincere desire” to make the necessary changes to become a sober individual.
Sentencing Tr. p. 9. She further contends that her “life is and has been entirely
out of control . . . . ” Id. at p. 8. However, the courts have provided Motsch
with ample opportunities to seek help in dealing with her drug addiction and to
take control of her life.
[13] Prior to her current offenses, Motsch had several incidents of involvement with
the criminal justice system, which all seem to be drug related. In 2002, Motsch
was charged with public intoxication. In 2003, Motsch was charged with
resisting law enforcement. Less than a year later after being charged with
resisting law enforcement, Motsch was charged with burglary, forgery, and
identity deception along with a misdemeanor conviction for paraphernalia
possession. In addition to the multiple charges Motsch has faced in the past,
Motsch has participated in five different substance abuse programs. Motsch
was unsatisfactorily discharged multiple times from various home detention
and community corrections programs. Although Motsch does not have a
Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-451 | July 27, 2015 Page 6 of 8 juvenile record, she has clearly established a longstanding history as an adult
criminal.
[14] Motsch has failed to recognize defendants are “not entitled to serve a sentence
in either probation or a community corrections program. Rather, placement in
either is a ‘matter of grace’ and a ‘conditional liberty that is a favor, not a
right.”’ Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999) (quoting Gilfillen v. State,
582 N.E.2d 821, 824 (Ind. 1991)). Motsch is a repeat violator of probation,
parole, home detention, and drug court programs. Despite the repeated efforts
to rehabilitate Motsch through various drug programs and lenient sentences,
Motsch continuously abused drugs and disobeyed the law.
[15] It is clearly evident that the prior imposition of more lenient sentences and
implementing drug programs for Motsch has not been an effective means of
dealing with her drug addiction and repeated criminal history. Based on the
discussed factors above, Motsch’s various offenses warrant her sentence.
[16] This case is distinguishable from the recent case of Norris v. State, 27 N.E.3d
333, (Ind. Ct. App. 2015), upon which Motsch relies. In Norris, our court held
that a twenty-year sentence was inappropriate in light of nature of offense and
defendant’s character. In Norris, the defendant had a minimal criminal history
and had previously completed home detention and probation successfully. By
contrast, as the state notes, “Motsch has continually violated the terms and
conditions of probation, parole, home detention, and, most recently, the Drug
Court Program.” Appellee’s Br. p. 6. The defendant in Norris committed one
Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-451 | July 27, 2015 Page 7 of 8 offense, whereas Motsch’s actions while out on bond alone were significantly
more numerous. Given the nature of Motsch’s aggregate offenses and her poor
character, we cannot say that the trial court’s sentence was inappropriate.
Conclusion [17] Motsch has not established that her sentence is inappropriate in light of the
nature of the offenses or her character. We affirm.
[18] Affirmed.
Riley, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-451 | July 27, 2015 Page 8 of 8