Debin Paige Gabbard v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 21, 2018
• Docket: 18A-CR-1618
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Dec 21 2018, 10:53 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jane Ann Noblitt Curtis T. Hill, Jr. Columbus, Indiana Attorney General of Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Debin Paige Gabbard, December 21, 2018 Appellant-Defendant, Court of Appeals Cause No. 18A-CR-1618 v. Appeal from the State of Indiana, Bartholomew Superior Court Appellee-Plaintiff. The Honorable James D. Worton, Judge Trial Court Cause No. 03D01-1710-F2-5616 & 03D01-1802-F5-733

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1618 | December 21, 2018 Page 1 of 12 STATEMENT OF THE CASE [1] Appellant-Defendant, Debin Gabbard (Gabbard), appeals her sentence

following her guilty plea to dealing in methamphetamine, a Level 3 felony, Ind.

Code §§ 35-48-4-1.1(a)(2), (d)(2); and dealing in methamphetamine, a Level 5

felony, I.C. § 35-48-4-1.1(a)(1).

[2] We affirm.

ISSUES [3] Gabbard presents two issues on appeal, which we restate as:

(1) Whether the trial court abused its discretion when it

sentenced Gabbard; and

(2) Whether Gabbard’s sentence is inappropriate in light of the

nature of her offenses and her character.

FACTS AND PROCEDURAL HISTORY [4] In the fall of 2017, law enforcement made two controlled buys of heroin from

Gabbard and her boyfriend at their home in Columbus, Indiana. The buys

were made with different confidential informants, both of whom had contacted

the authorities with the information that it was possible to purchase heroin from

Gabbard and her boyfriend. On October 4, 2017, based on the controlled buys,

officers obtained and executed a search warrant on Gabbard’s home. Gabbard,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1618 | December 21, 2018 Page 2 of 12 who was able to see officers approaching her home to execute the search

warrant, secreted quantities of methamphetamine and heroin inside her vagina.

When Officers searched Gabbard’s home approximately twenty-eight grams of

methamphetamine, a handgun, a scale, and plastic sandwich bags commonly

used to package drugs were found.

[5] Gabbard was arrested on multiple charges and was taken into custody. While

being held at the Bartholomew County Jail, Gabbard removed the

methamphetamine and heroin from her vagina and provided the

methamphetamine to fellow inmate Mary Snyder (Snyder) in exchange for

credits at the jail commissary. Snyder, in turn, placed the methamphetamine in

a bottle of hair conditioner which was later retrieved by inmate Angela Blair

(Blair). Blair died in jail during the evening of October 7, 2017, of

methamphetamine intoxication.

[6] On October 11, 2017, the State filed an Information in Cause Number 03D01-

1710-F2-5616 (Cause -5616), charging Gabbard with dealing in

methamphetamine, as a Level 2 felony; possession of methamphetamine, as a

Level 3 felony; and two Counts of dealing in a narcotic drug, both as Level 5

felonies for the drugs found in her home. On February 8, 2018, the State filed

an Information in Cause Number 03D01-1802-F5-733 (Cause -733), charging

Gabbard with dealing in methamphetamine, a Level 5 felony; trafficking with

an inmate in a controlled substance, a Level 5 felony; possession of a narcotic

drug, a Level 6 felony; and possession of methamphetamine, a Level 6 felony,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1618 | December 21, 2018 Page 3 of 12 for the offenses she committed while being held in jail on the Cause -5616

charges.

[7] On May 14, 2018, Gabbard pleaded guilty to dealing in methamphetamine as a

Level 3 felony in Cause -5616. Gabbard also pleaded guilty to dealing in

methamphetamine as a Level 5 felony in Cause -733. Pursuant to an agreement

with the State, all other charges were dismissed.

[8] On June 1, 2018, the State filed its pre-sentence investigation report (PSI) which

revealed that Gabbard had two juvenile adjudications, one in 2003 for alcohol

possession and one in 2007 for battery. She received probation for each of

those adjudications. As an adult, Gabbard had a 2010 conviction for illegal

alcohol possession for which she received probation. In 2015, Gabbard pleaded

guilty to Class D felony possession of a controlled substance. She received a

one-year sentence which was suspended to time-served and probation. Less

than four months later, the State filed a petition to revoke Gabbard’s probation

based upon her testing positive for methamphetamine and heroin. The trial

court revoked Gabbard’s probation, and she served 175 days in jail. While she

was being held on the instant cases, the State filed an Information, charging

Gabbard with conversion.

[9] Gabbard reported to her PSI investigator that she and her boyfriend used some

of the money they earned dealing drugs to support themselves. Gabbard

reported doing cleaning work in addition to dealing drugs. Gabbard had no

other verifiable employment for the previous two years. She also reported that

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1618 | December 21, 2018 Page 4 of 12 Snyder gave the methamphetamine to Blair and that it was “Mary’s fault” that

Blair died. (Confidential App. Vol. III, p.7). Gabbard felt that “Mary killed her

because she gave it to her.” (Conf. App. Vol. III, p. 7). Gabbard had lost

contact with her adoptive mother because of her drug use.

[10] Gabbard reportedly began abusing heroin and methamphetamine at the age of

twenty-three, which she attributed to hanging around with the wrong crowd.

Gabbard started by snorting and smoking drugs, but later she began injecting

them. Gabbard sought treatment at the Indiana Treatment Center on one

occasion. She was prescribed methadone but ceased attending treatment after

approximately four weeks. Gabbard was attending Celebrate Recovery pending

resolution of her cases.

[11] On June 12, 2018, the trial court held Gabbard’s sentencing hearing. Gabbard

was twenty-eight years old at the time of her sentencing. Gabbard maintained

repeatedly at her sentencing hearing that she had never sold any drugs. Rather,

she claimed that she gave drugs away to her friends without accepting payment

in order to support her drug habit. Gabbard testified that hiding the drugs in

her vagina was not planned and that it “just happened.” (Transcript Vol. II, p.

24). Gabbard further testified that she brought the drugs into jail to avoid

withdrawal symptoms, but she also maintained that she never used any of the

drugs for that purpose. Gabbard stated that she felt responsible for Blair’s death

even though she did not directly hand Blair the methamphetamine and that “if I

had never brung [sic] that it [sic] she would still probably be here.” (Tr. Vol. II,

p. 25).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1618 | December 21, 2018 Page 5 of 12 [12] Gabbard’s counsel argued that Gabbard’s lack of criminal record and her need

for treatment merited a reduced sentence. He also argued that Gabbard “does

feel responsible for [Blair’s] passing, because clearly if she hadn’t brought the

stuff in, [Snyder] wouldn’t have taken it.” (Tr. Vol. II, p. 38). The trial court

found Gabbard’s statement that she was only dealing to support her habit to

lack credibility, which the trial court believed indicated that Gabbard did not

take responsibility for her actions.

[13] In its written sentencing order, the trial court found, in relevant part, as follows:

The Court finds no mitigating circumstances. The Court finds the following aggravating circumstances in cause number 03DOl-1802-F5-733 and O3DOl-l7lO-F2-5616:

1. The defendant has a history of criminal or delinquent behavior.

2. The defendant has been on probation in the past and has been revoked.

3. The defendant has had opportunity for treatment outside of a penal facility and has been unsuccessful.

The Court finds the following aggravating circumstance in only cause number 03DOl-1802-F5-733:

4. A person died “in part” as a result of defendant’s actions.

(Appellant’s App. Vol. II, p. 56). The trial court sentenced Gabbard to fifteen

years with the Indiana Department of Correction for the Level 3 felony dealing

offense and to six years for the Level 5 felony offense, to be served

consecutively, for an aggregate sentence of twenty-one years.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1618 | December 21, 2018 Page 6 of 12 [14] Gabbard now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION I. Abuse of Discretion

[15] Gabbard contends that the trial court abused its discretion when it found as an

aggravating circumstance that Blair died in part because of Gabbard’s actions.

So long as a sentence imposed by a trial court is within the statutory range for

the offense, it is subject to review 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 the trial court’s sentencing discretion occurs if its 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. A trial court abuses its discretion when it fails to enter a

sentencing statement at all, its stated reasons for imposing sentence are not

supported by the record, its sentencing statement omits reasons that are clearly

supported by the record and advanced for consideration, or its reasons for

imposing sentence are improper as a matter of law. Id. at 490-91.

[16] Gabbard acknowledges on appeal that her sentence is within the statutory

guidelines for the offenses. However, Gabbard argues that the trial court

abused its discretion because she did not plead guilty to causing Blair’s death

and no evidence in the record established a direct line of culpability to her for

Blair’s death. We begin by noting that the trial court found the challenged

aggravating circumstance only as to the jailhouse dealing in methamphetamine

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1618 | December 21, 2018 Page 7 of 12 conviction in Cause -733. Therefore, we conclude that Gabbard raises no abuse

of discretion claim pertaining to her sentence for her other dealing conviction in

Cause -5616.

[17] The gravamen of Gabbard’s argument is that the challenged aggravating

circumstance was not supported by the record. However, there was evidence

before the trial court that Gabbard admitted giving the methamphetamine to

Snyder and that Gabbard reported that Snyder hid it in a conditioner bottle.

Video surveillance footage from the jail substantiated Gabbard’s account and

showed Snyder placing a conditioner bottle on the floor of her cell and Blair

later picking up the same bottle and taking it with her to her bed. Blair died the

next day of methamphetamine intoxication. Gabbard acknowledged at her

sentencing hearing that she felt responsible for Blair’s death and that if she had

not brought the methamphetamine into the jail, Blair would still be alive.

Gabbard’s counsel also argued at sentencing that Gabbard felt responsible for

her part in causing Blair’s death. Given this evidence and argument, we cannot

say that the trial court’s aggravating circumstance was unsupported by the

record or that it was clearly against the logic and effect of the facts and

circumstances before the court. Anglemyer v. State, 868 N.E.2d at 490-91.

[18] However, even if the trial court had abused its discretion when it found as an

aggravating circumstance that Gabbard was at least in part responsible for

Blair’s death, we would still affirm the trial court’s sentence. The finding of

even one valid aggravating circumstance is sufficient to impose both an

aggravated sentence and consecutive sentences. Gleason v. State, 965 N.E.2d

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1618 | December 21, 2018 Page 8 of 12 702, 712 (Ind. Ct. App. 2012). Here, the trial court found three other

aggravating circumstances applicable to Gabbard’s conviction for the jailhouse

dealing offense, namely her criminal record, the fact that Gabbard had her

probation revoked in the past, and that she had the opportunity for treatment

outside of a penal facility but had been unsuccessful. Gabbard does not

challenge the validity of these additional aggravating circumstances, and,

therefore, we conclude that her argument fails for the additional reason that

those aggravating circumstances justified the sentence imposed by the trial

court.

II. Appropriateness of Sentence

[19] Gabbard also contends that her sentence is inappropriate given the nature of her

offenses and her character. The Indiana Constitution and Indiana Appellate

Rule 7(B) permit an appellate court to revise a sentence if, after due

consideration of the trial court’s decision, the sentence is found to be

inappropriate in light of the nature of the offense and the character of the

offender. Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018). “The principal role

of such review is to attempt to leaven the outliers.” Cardwell v. State, 895

N.E.2d 1219, 1225 (Ind. 2008). The defendant bears the burden to persuade the

reviewing court that the sentence imposed is inappropriate. Robinson, 91

N.E.3d at 577.

[20] Gabbard pleaded guilty to Level 3 and Level 5 felony dealing in

methamphetamine. The sentencing range for a Level 3 felony is from three to

sixteen years, with nine years being the advisory sentence. I.C. § 35-50-2-5(b).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1618 | December 21, 2018 Page 9 of 12 The sentencing range for a Level 5 felony is from one to six years, with three

years being the advisory sentence. I.C. § 35-50-2-6(b). Here, the trial court

imposed a fifteen-year sentence for the Level 3 felony conviction and a six-year

sentence for the Level 5 felony conviction, to be served consecutively. Thus,

the trial court’s sentence represents the near-maximum permitted for the

offenses.

[21] Gabbard has little to argue regarding the nature of her offenses apart from her

contention that her “intentions in the actions she took were to support her own

habit, not to profit financially.” (Appellant’s Br. p. 15). However, this

contention is belied by evidence in the record that she accepted money from the

confidential informants during the controlled buys and that she and her

boyfriend used some of the profits from their drug dealing to support

themselves. In addition, Gabbard brought drugs into the jail and continued to

deal drugs even as she was being held on drug dealing charges. As a result of

her drug dealing in jail, Blair died of methamphetamine intoxication. In light

of these circumstances, we conclude that Gabbard has not met her burden to

persuade us that her sentence is inappropriate given the nature of her offenses.

Robinson, 91 N.E.3d at 577.

[22] As to her character, we note that Gabbard had two contacts with the juvenile

justice system and one previous felony conviction for a drug offense as an adult.

Gabbard has received the benefit of suspended sentences, probation, and an

executed sentence after her probation revoked on one occasion for testing

positive for drug use. Gabbard also had a conversion charge pending at the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1618 | December 21, 2018 Page 10 of 12 time of sentencing. Although Gabbard’s criminal history is not the most severe

we have encountered, we do not conclude that it renders her sentence

inappropriate.

[23] In addition, despite the negative impact it has had on her life, Gabbard has

failed to address her drug addiction, which has escalated from snorting and

smoking to intravenous use. There is no evidence in the record that Gabbard

has sought assistance for her drug use apart from one failed attempt at the

Indiana Treatment Center at some unspecified time in the past. While we

commend Gabbard for her apparent attempt to address her substance abuse

pending the resolution of her case, we do not find that these late-breaking

efforts render her sentence inappropriate.

[24] Gabbard contends that her sentence is inappropriate because she demonstrated

remorse for her offenses that the trial court did not credit. However, although

Gabbard pleaded guilty to the two dealing offenses, she received a great benefit

for her plea in that the State agreed to dismiss the six remaining felony charges

pending against her. In addition, Gabbard maintained at her sentencing

hearing that she had not actually sold any drugs when she dealt, an

equivocation which the trial court justly found demonstrated that she had not

truly accepted responsibility for the offenses. Gabbard also thought that

smuggling drugs into jail was something that “just happened,” which we

conclude demonstrated a lack of insight into the gravity of the offense. (Tr.

Vol. II, p. 24). In light of her criminal history, unaddressed substance abuse,

the substantial benefit Gabbard received from her plea, and her equivocation at

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1618 | December 21, 2018 Page 11 of 12 her sentencing hearing, we conclude that Gabbard has failed to demonstrate

that her sentence is inappropriate given her character. Robinson, 91 N.E.3d at

577.

CONCLUSION [25] Based on the foregoing, we conclude that the trial court did not abuse its

discretion when it sentenced Gabbard and that her sentence is not inappropriate

given the nature of her offenses and her character.

[26] Affirmed.

[27] Kirsch, J. and Robb, J. concur

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1618 | December 21, 2018 Page 12 of 12