Camille R. Fincher v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 26, 2016
• Docket: 02A03-1505-CR-508
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Feb 26 2016, 8:42 am this Memorandum Decision shall not be regarded as 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 P. Stephen Miller Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana

Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Camille R. Fincher, February 26, 2016 Appellant-Defendant, Court of Appeals Case No. 02A03-1505-CR-508 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge Trial Court Cause No. 02D04-1405-FD-587

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-508 | February 26, 2016 Page 1 of 9 [1] Camille Fincher appeals the three-year sentence she received for Class D felony

theft. 1 Because the sentence is not inappropriate and the trial court did not

abuse its discretion, we affirm.

Facts and Procedural History [2] On May 20, 2014, asset protection employees at a Fort Wayne Walmart

observed Fincher placing $337.14 worth of merchandise into shopping bags she

had brought into the store and placed inside a cart. She then attempted to exit

the store without paying for the merchandise and was apprehended by Fort

Wayne Police officers. Fincher was arrested and transported to the police

station, where she admitted the attempted theft.

[3] On May 27, 2014, the State charged Fincher with Class D felony theft. Fincher

agreed to plead guilty, and her sentence was deferred to allow her to participate

in the drug court program. Under that program, Fincher was permitted to live

at home, and agreed to refrain from possessing any alcohol, drug paraphernalia,

or illegal controlled substances. She also was required to obey all laws,

maintain good behavior, and immediately notify her case manager if she had

contact with law enforcement officials.

[4] Fincher’s participation in the drug court program was unsuccessful. Fincher’s

first violation occurred in September 2014 when she failed a drug test and was

1 Ind. Code § 35-43-4-2(a) (2009).

Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-508 | February 26, 2016 Page 2 of 9 given five hours of community service as a sanction. Fincher then was

compliant with the program for roughly two months. However, on November

24, 2014, marijuana was found in Fincher’s basement during a home visit. For

this second violation, Fincher was sanctioned with another five hours of

community service and required to write an essay. Fincher next failed to

appear for a drug screening scheduled for December 16, 2014, and was

sanctioned an additional five hours of community service as a result. Finally,

on January 16, 2015, a home visit revealed empty beer cans and pill bottles

containing controlled substances for which Fincher did not have a prescription.

Fincher had also been spotted driving on a suspended driver’s license. Fincher

was remanded to jail until placement in transitional living was arranged.

[5] On February 2, 2015, Fincher was released from custody and assigned to

Charis House, transitional living center. However, before entering Charis

House, Fincher committed multiple violations including unauthorized

prescription medicine use, missed appointments, missed support group

meetings, and failure to report a police contact. Fincher was ordered to report

to jail on February 27, 2015, and she was released on March 1, 2015.

[6] On March 2, 2015, Fincher moved into Charis House with her grandson. By

April 6, 2015, Fincher was placed on restriction at Charis House pending the

follow-up of a positive alcohol test she submitted in March. On April 7, 2015,

Fincher violated her facility behavioral contract by leaving the Charis House

without permission. Fincher was discharged from the transitional living facility.

Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-508 | February 26, 2016 Page 3 of 9 [7] As a result of the discharge, the State filed a petition to terminate Fincher from

the drug court program. At the sentencing hearing, after hearing evidence and

arguments regarding sentencing, the trial court found Fincher’s guilty plea a

mitigating circumstance, but found Fincher’s criminal history and multiple

failed attempts at rehabilitation from 1981 to 2015 to be significant aggravators.

The trial court sentenced Fincher to a three-year fully-executed sentence.

Discussion and Decision Abuse of Discretion

[8] Because the sentence imposed is within the statutory range, we review the trial

court’s decision 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

discretion occurs if the sentencing 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.

[9] Fincher argues the trial court abused its discretion in sentencing her to three

years imprisonment. Specifically, Fincher claims the court abused its discretion

in determining that she had “failed to complete every program in which she had

been placed and that she had been revoked from every program she had been

given.” (Appellant’s Br. at 7.) However, Fincher mischaracterizes the trial

court’s statement and ignores essential parts of the court’s reasoning.

[10] Fincher points to specific instances where she participated in substance abuse

treatment programs with no documentation of failure to complete the Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-508 | February 26, 2016 Page 4 of 9 programs. However, the trial court explicitly mentioned these attempts at

rehabilitation in its decision:

You’ve had multiple treatment efforts through Richmond State Hospital, Park Center, Brown and Associates, the Women’s Bureau, Washington House and then through the drug court program and you continue your criminal conduct. I’m not sure ma’am what else there is that the court can offer.

(May 13, 2015 Hearing Tr. at 18.) 2 Indeed, the trial court acknowledged

Fincher’s multiple efforts to complete treatment but noted that none of these

programs resulted in successful rehabilitation of Fincher.

[11] The State argues that even if Fincher completed a program, she did not benefit

therefrom. (Br. of Appellee at 7.) We agree. Fincher has been given the

benefit of short jail sentences, longer jail sentences, community service,

electronic monitoring, the community transition program, probation, home

detention, parole, and the drug court program. Despite the numerous

opportunities the State has given her to rehabilitate herself, Fincher continues to

commit additional crimes.

[12] Fincher’s failure to benefit from past rehabilitation efforts is clearly supported

by the record. While Fincher may not have failed or been removed from

“every” rehabilitation program in which she had ever been placed, she certainly

2 We note the hindrance caused by the Court Reporter’s failure to number the Transcript pages consecutively pursuant to Ind. Appellate Rule 28(A)(2).

Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-508 | February 26, 2016 Page 5 of 9 had been removed from every program the court had offered her since she pled

guilty to the theft for which she was being sentenced. We cannot say that the

trial court’s decision is clearly against the logic and effect of the facts and

circumstances. Therefore, the trial court did not abuse its discretion. See, e.g.,

Smith v. State, 929 N.E.2d 255, 259 (Ind. Ct. App. 2010) (no abuse of discretion

where record supported trial court’s findings), trans. denied.

Inappropriate Sentence

[13] Fincher alleges her three-year sentence is inappropriate. We may revise a

sentence if it is inappropriate in light of the nature of the offense and the

character of the offender. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App.

2008) (citing Ind. Appellate Rule 7(B)). We consider not only the aggravators

and mitigators found by the trial court, but also any other facts appearing in the

record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied.

Our review is deferential to the trial court’s decision, and our goal is to

determine whether Fincher’s sentence is inappropriate, not whether some other

sentence would be more appropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind.

2012), reh’g denied.

[14] When considering the nature of the offense, the advisory sentence is the starting

point to determine the appropriateness of a sentence. Anglemeyer, 868 N.E.2d at

494. The advisory sentence for a Class D felony theft is one and a half years,

with a range of six months to three years. Ind. Code § 35-50-2-7(a) (2014).

Fincher received a three-year sentence. One factor we consider when

Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-508 | February 26, 2016 Page 6 of 9 determining the appropriateness of a deviation from the advisory sentence is

whether there is anything more or less egregious about the offense committed

by the defendant that makes it different from the “typical” offense accounted for

by the legislature when it set the advisory sentence. Rich v. State, 890 N.E.2d

44, 54 (Ind. Ct. App. 2008), trans. denied.

[15] Fincher attempted to steal items from Walmart totaling $337.14. She did so by

placing Walmart shopping bags into a cart and then placing numerous items

including laundry detergent, DVDs, clothing, shoes, and other items into those

shopping bags. Fincher passed all points of pay and attempted to exit the store

without paying for any of these items. This was not a momentary lapse in

judgment, but an intentional and carefully calculated plan to deprive Walmart

of its property.

[16] As for Fincher’s character, one relevant fact is a defendant’s criminal history.

Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance

of a criminal history in assessing a defendant’s character varies based on the

gravity, nature, and number of prior offenses in relation to the current offense.

Id. Fincher’s criminal history consists of two juvenile delinquency

adjudications, eighteen misdemeanor convictions, and three felony

convictions—one of forgery and two of theft.

[17] Fincher cites Buchanan v. State, 767 N.E.2d 967 (Ind. 2002), for the proposition

that “a maximum sentence is to be reserved for the worst of the worst.” (Br. of

Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-508 | February 26, 2016 Page 7 of 9 Appellant at 9 n.2.) 3 Fincher’s reliance on Buchanan is misplaced. In Buchanan,

the defendant was convicted of Class A felony child molesting and the trial

court imposed the maximum sentence of fifty years. Buchanan, 767 N.E.2d at

969. Our Indiana Supreme Court reduced Buchanan’s sentence from the

maximum fifty years to forty years, finding Buchanan “[was] not within the

class of offenders for whom the maximum possible sentence is appropriate.” Id.

at 974. One of the factors considered by the court was that “the offense was not

part of a protracted episode of molestation but a one-time occurrence.” Id. at

973. The court also noted:

Although maximum sentences are ordinarily appropriate for the worst offenders, we refer generally to the class of offenses and offenders that warrant the maximum punishment. But such class encompasses a considerable variety of offenses and offenders.

Id. (emphasis in original).

[18] We are not persuaded that the three-year maximum sentence imposed in this

case was inappropriate. Unlike the defendant in Buchanan, whose offense was a

one-time occurrence, Fincher has a criminal history of committing multiple

thefts. The record evidences this theft was the result of a carefully carried out

plan to steal property from Walmart. While Fincher contends that her “mental

3 Fincher claims a proper consideration of the defendant’s mental illness warrants a finding that the maximum sentence ordered was not appropriate, but she did not assert this mitigator at the sentencing hearing. See Koch v. State, 952 N.E.2d 359, 374-75 (Ind. Ct. App. 2011) (waiving mitigators that had not been raised at sentencing).

Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-508 | February 26, 2016 Page 8 of 9 health difficulties . . . more readily indicate the need for probation served in a

mental health facility[,]” (Br. of Appellant at 11), the record is replete with

instances of Fincher’s inability to comply with rehabilitation. She continues to

offend. Her inability to comply with even the simplest requirements reflects

poorly on her judgment and character. (Id.) (“In this case the lack of

compliance was not imbibing alcohol or using drugs, the lack of compliance

was failing to stay at Charis house and going on an Easter egg hunt with her

grandson.”).

[19] Based on these facts, we cannot say the sentence is inappropriate in light of

Fincher’s character and the nature of her offense. See, e.g., King v. State, 769

N.E.2d 239, 240 (Ind. Ct. App. 2002) (finding that the defendant’s lengthy

criminal history supported his maximum three-year sentence for Class D felony

theft).

Conclusion [20] The trial court did not abuse its discretion in sentencing Fincher to three years

imprisonment for a Class D felony theft. Fincher did not demonstrate that her

sentence is inappropriate based on the nature of her offense or her character.

Accordingly, we affirm.

[21] Affirmed.

Najam, J., and Riley, J., concur.

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