Corina M. Smith v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 22, 2019
• Docket: 18A-CR-2258
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 22 2019, 6:18 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brian A. Karle Curtis T. Hill, Jr. Ball Eggleston, PC Attorney General of Indiana Lafayette, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Corina M. Smith, April 22, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2258 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Appellee-Plaintiff Steven Meyer, Judge Trial Court Cause No. 79D02-1707-F5-85

Vaidik, Chief Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2258 | April 22, 2019 Page 1 of 5 [1] Corina M. Smith appeals her sentence of five years for trafficking with an

inmate, arguing that it is inappropriate in light of the nature of her offense and

her character. We disagree and affirm.

Facts and Procedural History [2] This case arose from an incident in September 2016 in which Smith was caught

mailing a strip or strips of Buprenorphine, a controlled substance, to her

boyfriend, Kyle Balser, while he was an inmate at the Tippecanoe County Jail.

The State charged her with Level 5 felony trafficking with an inmate, but not

until July 2017. In the interim, Smith committed three additional felonies that

led to three additional prosecutions: Level 4 felony dealing in

methamphetamine in White County in December 2016, see Case No. 91D01-

1701-F2-19; Level 2 felony conspiracy to commit dealing in methamphetamine

in Tippecanoe County in February 2017, see Case No. 79D02-1706-F2-13; and

Level 6 felony theft in Tippecanoe County in March 2017, see Case No. 79D05-

1703-F6-216. Appellant’s App. Vol. II p. 68.

[3] Smith pled guilty and was sentenced in two of those other cases—F6-216 and

F2-19—in 2017. Then, in June 2018, Smith and the State entered into a plea

agreement under which Smith agreed to plead guilty as charged in this case and

to plead guilty to Level 2 felony conspiracy to commit dealing in

methamphetamine and to being a habitual offender in F2-13, with sentencing

left to the discretion of the trial court. In this case, the trial court sentenced

Smith to five years in the Department of Correction. In F2-13, the court

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2258 | April 22, 2019 Page 2 of 5 sentenced Smith to twenty-eight years, to run consecutive to the five years in

this case.

[4] Smith has separately appealed her sentences in this case and in F2-13. In this

memorandum decision, we address Smith’s five-year sentence for trafficking

with an inmate. In another memorandum decision issued today, we affirm

Smith’s twenty-eight-year sentence in F2-13 but remand to the trial court to

reconsider whether Smith’s sentences in these two cases should run

concurrently or consecutively (Judge Altice dissents on the latter issue). See

Corina M. Smith v. State, 18A-CR-2214 (Ind. Ct. App. Apr. 22, 2019).

Discussion and Decision [5] Smith contends that her five-year sentence for trafficking with an inmate is

inappropriate and asks us to reduce it pursuant to Indiana Appellate Rule 7(B),

which 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.” “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.”

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

State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Because we generally defer to the

judgment of trial courts in sentencing matters, defendants have the burden of

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2258 | April 22, 2019 Page 3 of 5 persuading us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d

1041, 1044-45 (Ind. Ct. App. 2016).

[6] The starting point for determining whether a particular sentence is

inappropriate is the advisory sentence set by the legislature. Bowman v. State, 51

N.E.3d 1174, 1181 (Ind. 2016). The sentencing range for a Level 5 felony is

one to six years, with an advisory sentence of three years. Ind. Code § 35-50-2-

6. Here, the trial court imposed an above-advisory term of five years.

[7] Regarding the nature of her offense, Smith asserts that “although

Buprenorphine is a controlled substance, its practical application is for

treatment of opioid addiction.” Appellant’s Br. p. 8. However, she does not

dispute that the drug can also be used recreationally. Still, there does not

appear to have been anything particularly egregious about Smith’s offense as

compared to other instances of trafficking with an inmate.

[8] That said, Smith’s above-advisory sentence is more than justified by her

criminal history, which she fails to discuss beyond noting that it is “non-

violent.” Id. The pre-sentence investigation report, the accuracy of which

Smith does not contest, reveals the following. As a teenager, she was

adjudicated a delinquent and eventually committed to the Indiana Girls’ School

for committing forgery, which would have been a felony if committed by an

adult. In 1998, Smith was convicted of felony auto theft. In 1999, she was

convicted of six counts of misdemeanor check deception. In 2004, she was

convicted of five felonies: maintaining an illegal drug lab, possession of stolen

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2258 | April 22, 2019 Page 4 of 5 property, and three counts of possession of methamphetamine. In 2011 and

2012, Smith had misdemeanor convictions for purchasing precursors and

criminal trespass. Also, as discussed above, Smith committed multiple

additional felonies in the months after she was caught trafficking: Level 4 felony

dealing in methamphetamine (White County, December 2016); Level 2 felony

conspiracy to commit dealing in methamphetamine (Tippecanoe County,

February 2017); and Level 6 felony theft (Tippecanoe County, March 2017).

Given this sustained history of felonies and other criminal conduct, we cannot

say that Smith’s sentence is inappropriate.

[9] Affirmed.

Kirsch, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2258 | April 22, 2019 Page 5 of 5