Connie D. Richey v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 8, 2018
• Docket: 03A01-1710-CR-2404
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 08 2018, 5:48 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Benjamin Loheide Curtis T. Hill, Jr. Law Office of Benjamin Loheide Attorney General of Indiana Columbus, Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Connie D. Richey, June 8, 2018 Appellant-Defendant, Court of Appeals Case No. 03A01-1710-CR-2404 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable James D. Worton, Appellee-Plaintiff. Judge Trial Court Cause No. 03D01-1705-F5-2824

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 1 of 13 Case Summary and Issue [1] Following a jury trial, Connie Richey was convicted of dealing in a narcotic

drug, a Level 5 felony, and dealing in a substance represented to be a controlled

substance, a Level 6 felony. Richey was sentenced to consecutive terms of four

and one-half years and one and one-half years, respectively, for a total of six

years to be executed at the Indiana Department of Correction. Richey now

appeals, raising the sole issue of whether her sentence is inappropriate in light

of her character and the nature of her offense. Concluding her sentence is

inappropriate, we reverse and remand.

Facts and Procedural History [2] On March 22, 2016, a confidential informant contacted Detective Chad Moore

of the Columbus Police Department and informed him that she could introduce

him to Connie Richey, a prospective drug dealer, and arrange for a drug buy.

At around 9 p.m., Detective Moore, operating undercover, drove to a

prearranged address and parked his vehicle out front. Having viewed

photographs of Richey to familiarize himself with her appearance, Detective

Moore recognized Richey as she approached his vehicle. Detective Moore gave

Richey $100 in exchange for one gram of a substance Richey purported to be

methamphetamine, but was later revealed to be a look-alike substance.

Detective Moore stated that he wished to buy “boy,” Transcript, Volume II at

64, a slang term for heroin, and Richey responded that she did not have any

herself, but she would check with someone else in the residence. Richey

Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 2 of 13 emphasized the potency of the heroin, telling Detective Moore, “[t]hey say it’s

fire too. I mean I don’t touch the sh*t.” Id. at 65.

[3] The next day, Richey called Detective Moore and informed him that someone

in the building could sell “boy,” and that she would let him know further details

through the confidential informant. Detective Moore and the confidential

informant then arranged for the purchase of five packs of heroin for $100.

Detective Moore returned to Richey’s residence, this time accompanied by

Detective Kelly Hibbs, and conducted another drug buy. Richey again

emphasized the potency of the heroin and explained that she had told the

source of the heroin, “I said well the sh*t what that is [sic] I’m kinda scared of it

cause my daughter had a six year addiction . . . .” Id. at 72.

[4] On May 19, 2017, the State charged Richey with dealing in a narcotic drug, a

Level 5 felony, and dealing in a substance represented to be a controlled

substance, a Level 6 felony. Richey was found guilty of both charges after a

two-day jury trial in which audio recordings of the drug deals were played for

the jury.

[5] The presentence investigation report reflected that Richey’s lengthy criminal

history began with an arrest for theft in 1986. Richey pleaded guilty to driving

while intoxicated and driving while suspended, both Class A misdemeanors, in

2000, and criminal conversion, a Class A misdemeanor, in 2007. In 2010,

Richey was again arrested for driving while suspended, a Class A

misdemeanor, and in 2012, Richey pleaded guilty to theft, a Class D felony,

Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 3 of 13 and was sentenced to three years with two years suspended. In 2015, Richey

was again charged with two counts of criminal conversion, both Class A

misdemeanors, and pleaded guilty to receive a sentence of one year, with all but

two days suspended. During the course of Richey’s various terms on probation,

five petitions to revoke her probation were filed and she has admitted to

numerous probation violations.

[6] At sentencing, the trial court found Richey’s criminal history and history of

probation violations as aggravating circumstances, but found no mitigating

circumstances. The trial court explained:

[T]he evidence was overwhelming. And you still take no responsibility for your actions, blame others, . . . and the Court . . . looks at your probation performance in the past and doesn’t . . . think you are a good candidate for probation in this case.

Tr., Vol. II at 236. The trial court sentenced Richey to four and one-half years

for dealing in a narcotic drug, a Level 5 felony, and to one and one-half years

for dealing in a counterfeit substance, a Level 6 felony, with the terms to be

served consecutively. Richey now appeals.

Discussion and Decision I. Standard of Review [7] Article 7, Section 6 of the Indiana Constitution provides this court with the

authority to review and revise a criminal sentence. Indiana Appellate Rule 7(B)

explains that we may revise a sentence “if, after due consideration of the trial

Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 4 of 13 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.” Because a trial court’s

judgment “should receive considerable deference[,]” Cardwell v. State, 895

N.E.2d 1219, 1222 (Ind. 2008), our principal role is to “leaven the outliers,” id.

at 1225. “Such deference should prevail unless overcome by compelling

evidence portraying in a positive light the nature of the offense (such as

accompanied by restraint, regard, and lack of brutality) and the defendant’s

character (such as substantial virtuous traits or persistent examples of good

character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The defendant

bears the burden to persuade this court that his or her sentence is inappropriate.

Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). We may rely on any

factors appearing in the record in making the determination of whether a

sentence is inappropriate. Stokes v. State, 947 N.E.2d 1033, 1038 (Ind. Ct. App.

2011), trans. denied.

II. Inappropriate Sentence A. Nature of the Offense [8] On appeal, Richey asserts that Beno v. State, 581 N.E.2d 922 (Ind. 1991), and its

progeny prohibit a trial court from imposing consecutive sentences for her two

convictions.

[9] In Beno, the defendant was convicted of two counts of dealing in cocaine and

one count of maintaining a common nuisance after two controlled buys at his

house—occurring just four days apart—and the trial court ordered him to serve

Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 5 of 13 consecutive sentences on the three counts. On transfer, our supreme court

explained:

Beno was convicted of committing virtually identical crimes separated by only four days. Most importantly, the crimes were committed as a result of a police sting operation. As a result of this operation, Beno was hooked once. The State then chose to let out a little more line and hook Beno for a second offense. There is nothing that would have prevented the State from conducting any number of additional buys and thereby hook Beno for additional crimes with each subsequent sale. We understand the rationale behind conducting more than one buy during a sting operation, however, we do not consider it appropriate to then impose maximum and consecutive sentences for each additional violation. If Beno, for instance, had sold drugs to different persons, or if he had provided a different type of drug during each buy, the consecutive sentences imposed might seem more appropriate. Here, however, because the crimes committed were nearly identical State-sponsored buys, consecutive sentences were inappropriate.

Id. at 924. The court then revised the defendant’s sentence from consecutive

terms to concurrent terms. Id.

[10] Next, in Gregory v. State, 644 N.E.2d 543 (Ind. Ct. App. 1994), a confidential

informant purchased a total of forty-two grams of cocaine in four different

transactions over a ten-day period. After a jury found the defendant guilty of

four counts of delivery of more than three grams of cocaine, all Class A

felonies, the trial court imposed consecutive sentences for an aggregate term of

120 years. On transfer, our supreme court explained:

Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 6 of 13 As in Beno, Gregory sold the same drug to the same informant on several occasions over a short period of time. Presumably, the police could have set up any number of additional transactions, each time adding an additional count against Gregory. While the police may find it necessary to conduct a series of buys, the trial court should be leery of sentencing a defendant to consecutive terms for each count. We hold that on these facts, a sentence of 120 years was inappropriate.

Id. at 546.

[11] Although Beno opined that if the defendant “had provided a different type of

drug during each buy, the consecutive sentences imposed might seem more

appropriate,” 581 N.E.2d at 924, we identified this statement as dicta in

Hendrickson v. State, 690 N.E.2d 765, 767 (Ind. Ct. App. 1998). There, police

conducted five controlled buys over a period of two months in which the

defendant sold marijuana, methadone, and two different legend drugs. After

the trial court imposed consecutive sentences, we revised the sentences to

concurrent terms on appeal. Id. In so doing, we explained, “the purpose of

Beno in prohibiting consecutive sentences when the police entice additional

drug buys, applies whether or not different drugs are involved. Therefore, we

conclude that the holding in Beno is applicable even if the defendant provides a

different type of drug during additional buys.” Id.

[12] What’s more, in Williams v. State, we held that the principle that “the State may

not ‘pile on’ sentences by postponing prosecution in order to gather more

evidence . . . applies equally to convictions arising from evidence gathered as a

direct result of the State-sponsored criminal activity.” 891 N.E.2d 621, 635

Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 7 of 13 (Ind. Ct. App. 2008). And, more recently, our supreme court took the same

approach in holding that consecutive sentences were inappropriate where

controlled buys led to a search and additional drug-related convictions.

Eckelbarger v. State, 51 N.E.3d 169 (Ind. 2016). In Eckelbarger, an informant

purchased methamphetamine from the defendant twice in the period of one

week and police then used the evidence of the controlled buys to obtain and

execute a search warrant on the defendant’s residence. The former resulted in

two counts of dealing in methamphetamine (by delivery), both Class B felonies

(Counts I and II), while the latter resulted in one count of dealing in

methamphetamine (by manufacture), a Class B felony (Count III), and one

count of possession of precursors with intent to manufacture

methamphetamine, a Class D felony (Count IV). The trial court imposed

sixteen-year sentences on Counts I and II to be served concurrently, as well as a

sixteen-year sentence on Count III and a three-year sentence on Count IV to be

served concurrent with Count III. The sentences for Counts I and II were then

ordered to be served consecutive to Counts III and IV, for an aggregate

sentence of thirty-two years, with eight suspended to probation. On transfer,

our supreme court cited Gregory for the proposition that “[c]onsecutive

sentences are not appropriate when the State sponsors a series of virtually

identical offenses,” and revised the defendant’s sentence so that all four counts

ran concurrently. Eckelbarger, 51 N.E.3d at 170.

[13] Similar to the defendants in Beno, Gregory, and Hendrickson, Richey was enticed

by the police to make an additional sale as part of a sting operation. And,

Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 8 of 13 notably, the drug buys involved here occurred only one day apart—even closer

in temporal proximity than the four days at issue in Beno, 581 N.E.2d at 923,

the ten days at issue in Gregory, 644 N.E.2d at 544, or the two-month period in

Hendrickson, 690 N.E.2d at 766. To this point, the State seems to acknowledge

the factual similarities with Beno and Gregory, but argues that Richey’s crimes

were “materially distinct,” and that Richey’s “subsequent sale of heroin . . . was

a grave escalation in her illegal trafficking.” Brief of the Appellee at 10-11.

However, the State’s argument is premised on the fact that two different drugs

were involved, while failing to so much as acknowledge our decision in

Hendrickson, let alone distinguish it.

[14] Moreover, to the extent the State argues that the sale of heroin constituted a

“grave escalation in [Richey’s] illegal trafficking,” it was Detective Moore who

solicited a different drug, rather than it being Richey who offered it. Although

that, of course, by no means diminishes Richey’s culpability for the underlying

crime, allowing the State to utilize such a loophole would effectively eviscerate

the well-established prohibition on stacking sentences for separate drug deals

resulting from the same police sting operation. That prohibition applies

whether the aggregate sentence is 120 years, as in Gregory, or six years, as in this

case. Therefore, we find the State’s argument unpersuasive and conclude that

the trial court’s imposition of consecutive sentences, on these facts, was

inappropriate.

Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 9 of 13 B. Character of the Offender [15] Richey also argues that her character rendered her sentence inappropriate.

The “character of the offender” portion of the standard refers to the general sentencing considerations and the relevant aggravating and mitigating circumstances. We assess the trial court’s recognition or non-recognition of aggravators and mitigators as an initial guide to determining whether the sentence imposed was inappropriate.

Reis v. State, 88 N.E.3d 1099, 1104-05 (Ind. Ct. App. 2017) (citations omitted).

[16] Here, the trial court found two aggravating circumstances, Richey’s criminal

history and history of probation violations, but no mitigating circumstances.

Based on those findings, the trial court determined Richey was not a candidate

for probation.

[17] On appeal, Richey minimizes her criminal history, arguing that she is now fifty-

two years old with only one felony conviction. However, Richey’s

misdemeanor record is extensive, dating back over thirty years with a sharp

increase in criminal conduct around 2010. And, as we often emphasize,

“[e]ven a minor criminal record reflects poorly on a defendant’s character.”

Reis, 88 N.E.3d at 1105. Nevertheless, as discussed above, we conclude these

offenses dictate the imposition of concurrent—not consecutive—sentences.

Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 10 of 13 Conclusion [18] The nature of Richey’s crimes rendered the imposition of consecutive sentences

inappropriate. We therefore reverse Richey’s sentence and remand for the trial

court to issue a new sentencing order consistent with this opinion.

[19] Reversed and remanded.

Najam, J., concurs.

Altice, J., dissents with opinion.

Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 11 of 13 IN THE COURT OF APPEALS OF INDIANA

Connie D. Richey, Appellant-Defendant, Court of Appeals Case No. 03A01-1710-CR-2404 v.

State of Indiana, Appellee-Plaintiff.

Altice, Judge, dissenting.

[20] I believe that the extraordinary relief of appellate sentence revision is not

warranted in this case and, therefore, I dissent. Although the convictions both

arose from State-sponsored buys that were close in time, I agree with the State

that the offenses were materially distinct in that the subsequent sale of heroin

was a significant escalation of Richey’s illegal drug trafficking. Further, I do

not agree with Hendrickson v. State, 690 N.E.2d 765, 767 (Ind. Ct. App. 1998),

trans. not sought, to the extent that it concludes the sale of different drugs during

each buy cannot weigh into our sentencing analysis. In both Gregory and Beno,

our Supreme Court emphasized that the defendant sold the same drug to the

same informant during each buy resulting in virtually identical State-sponsored

Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 12 of 13 buys. Gregory v. State, 644 N.E.2d 543, 544-46 (Ind. 1994); Beno v. State, 581

N.E.2d 922, 924 (Ind. 1991).

[21] Moreover, in this case, Richey received an aggregate sentence of only six years,

which amounts to the maximum sentence she faced for her Level 5 felony

conviction alone. This is a far cry from the 100-year sentence in Beno and the

120-year sentence in Gregory found inappropriate.

Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 13 of 13