Denise M. Lechner v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 20, 2019
• Docket: 18A-CR-2351
• 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 May 20 2019, 8:45 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Brooke Smith Curtis T. Hill, Jr. Bradley Keffer Attorney General of Indiana Keffer Barnhart LLP Tiffany A. McCoy Indianapolis, Indiana Angela Sanchez Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA Denise M. Lechner, May 20, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2351 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable David D. Kiely, Appellee-Plaintiff. Judge Trial Court Cause No. 82C01-1509-F2-5907

Mathias, Judge.

[1] Denise Lechner (“Lechner”) pleaded guilty in Vanderburgh Circuit Court to

Level 2 felony conspiracy to commit dealing in methamphetamine and was

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2351 | May 20, 2019 Page 1 of 7 sentenced to eighteen years of incarceration. Lechner appeals and argues that

her sentence is inappropriate in light of the nature of her offense and her

character.

[2] We affirm.

Facts and Procedural History

[3] At some point prior to September 23, 2015, Lechner, Thomas Biggs (“Biggs”),

and David Tapia (“Tapia”) agreed to have methamphetamine shipped to

Biggs’s home; Tapia and Lechner then planned to deliver the

methamphetamine to Illinois. Biggs was to receive a portion of the

methamphetamine in consideration for the use of his home.

[4] On September 23, 2015, a United States Marshall apprehended Lechner at

Biggs’s home on outstanding warrants for dealing in methamphetamine and

felony theft. When the Marshall asked if Lechner had anything illegal on her

person, Lechner produced a small amount of methamphetamine. She also told

the Marshall that she was at Biggs’s home to pick up a package containing

approximately five ounces (roughly 141.75 grams) of methamphetamine. While

the Marshall spoke with Lechner, a package arrived at the house addressed to

Veronica Chase, an alias used by Lechner. Inside the package was a lawn

ornament. Inside the ornament was a package of a crystalline substance that

tested positive as methamphetamine. The package was wrapped in black

electrical tape, and a field test of the substance indicated that it weighed 358

grams, significantly more than five ounces.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2351 | May 20, 2019 Page 2 of 7 [5] Lechner was later interviewed by Vanderburgh County Sheriff’s Department

Deputy James Budde (“Deputy Budde”). Lechner told Deputy Budde that she

was supposed to retrieve the package from Biggs’s home and transport it to a

location in southern Illinois. In exchange for the use of his home, Biggs was to

be given three grams of methamphetamine. She also stated that this was the

third time she had picked up a package containing methamphetamine from

Biggs’s home.

[6] On September 28, 2015, the State charged Lechner with Level 2 felony

conspiracy to commit dealing in methamphetamine in an amount of at least ten

grams. See Ind. Code § 35-48-4-1.1(a)(2), (e)(1); Ind. Code § 35-41-5-2. On

March 2, 2016, Lechner entered into an agreement with the State to plead

guilty to Level 2 felony conspiracy to commit dealing in methamphetamine. On

April 6, 2016, Lechner filed a motion requesting to be released from jail so that

she could attend her stepfather’s funeral the following day. The trial court

granted this request on the condition that Lechner wear a GPS monitor to track

her location. Instead of returning to jail after the funeral, Lechner cut the GPS

monitor off and fled. She was apprehended eleven days later, and her bond was

revoked. The State also moved to withdraw its earlier plea agreement, which

the trial court granted.

[7] On October 20, 2016, Lechner’s counsel informed the trial court that the State

had offered to dismiss charges in two other cases pending against Lechner if she

agreed to an “open” plea of guilty in two other cases, including the present one.

Lechner then pleaded guilty to conspiracy to commit Level 2 felony dealing in

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2351 | May 20, 2019 Page 3 of 7 methamphetamine in the present case. At a sentencing hearing held on

November 11, 2016, the trial court accepted Lechner’s plea and sentenced her

to eighteen years of incarceration. Lechner filed a petition for permission to file

a belated notice of appeal on September 4, 2018, which the trial court granted

on September 19, 2018. Lechner then filed her notice of appeal on September

28, 2018, and this appeal ensued.

Discussion and Decision

[8] Lechner contends that her sentence of eighteen years is inappropriate in light of

the nature of her offense and her character. Even if a trial court acts within its

statutory discretion in imposing a sentence, Article 7, Sections 4 and 6 of the

Indiana Constitution authorize independent appellate review and revision of a

sentence imposed by the trial court. Trainor v. State, 950 N.E.2d 352, 355 (Ind.

Ct. App. 2011), trans. denied (citing Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.

2007)). This authority is implemented through Indiana Appellate Rule 7(B),

which provides that the court on appeal “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.”

[9] Although we may revise a sentence on appeal, we still exercise deference to a

trial court’s sentencing decision, as Appellate Rule 7(B) requires us to give “due

consideration” to that decision, and because we understand and recognize the

unique perspective a trial court brings to its sentencing decisions. Trainor, 950

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2351 | May 20, 2019 Page 4 of 7 N.E.2d at 355 (citing Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App.

2007)). The principal role of appellate review should be to attempt to “leaven

the outliers” and identify guiding principles for trial courts and those charged

with improvement of the sentencing statutes, but not to achieve what we

perceive to be a “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219,

1225 (Ind. 2008).

[10] Under Appellate Rule 7(B), the appropriate question is not whether we believe

another sentence is more appropriate; rather, the question is whether the

sentence imposed by the trial court is inappropriate. Fonner v. State, 876 N.E.2d

340, 344 (Ind. Ct. App. 2007). When we review the appropriateness of a

sentence, we consider “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.” Cardwell, 895 N.E.2d at 1224. The defendant bears the burden

to persuade us that the sentence imposed by the trial court is inappropriate.

Shell v. State, 927 N.E.2d 413, 422 (Ind. Ct. App. 2010) (citing Anglemyer, 868

N.E.2d at 494).

[11] In the present case, Lechner was convicted of a Level 2 felony, and the

sentencing range for a Level 2 felony is ten to thirty years, with the advisory

being seventeen and one-half years. Ind. Code § 35-50-2-4.5. Lechner was

sentenced to eighteen years—only six months more than the advisory. Thus,

the burden she bears is higher than if she had been given a more severe

sentence. Cf. Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011)

(noting that the advisory sentence is the starting point our General Assembly

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2351 | May 20, 2019 Page 5 of 7 has selected as an appropriate sentence for the crime committed and that a

defendant therefore bears a particularly heavy burden in persuading us that an

advisory sentence is inappropriate), trans. denied.

[12] With regard to the nature of the offense, Lechner argues that the factual basis

supporting her plea “does not establish any facts beyond what are typically

expected or required for the type of offense.” Appellants Br. at 8; see also

Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013) (noting that when

considering the nature of the offense, a court compares the defendant’s actions

with the required showing to sustain a conviction under the charged offense),

trans. denied. This, however, assumes that we are only permitted to look to the

facts established in the factual basis when considering the appropriateness of a

sentence. Lechner, however, provides no authority supporting this assumption.

Here, Lechner admitted to the investigating officers that she had transported

methamphetamine to Illinois twice before. She also admitted that the amount

of methamphetamine in the package was supposed to be five ounces,

significantly more than the ten grams required to elevate the crime to a Level 2

felony. And even if we were to agree with Lechner that we may only consider

the factual basis, it still shows that she conspired to deliver large amounts of

methamphetamine and transport it to Illinois. See Tr. p. 29.

[13] More importantly, Lechner’s character, as evidenced by her lengthy criminal

history, is by itself sufficient to support the trial court’s sentencing decision.

Although Lechner emphasizes that she spent a nine-year period drug free and

without committing any additional criminal offenses, we are unable to overlook

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2351 | May 20, 2019 Page 6 of 7 that she has fourteen prior felony convictions and nine prior misdemeanor

convictions. And many of these prior convictions were for possession of

methamphetamine and other controlled substances. Lechner has been charged

with over fifty crimes in three states. Lechner has also previously violated the

terms of her work release and probation. And in the present case, when the trial

court showed lenience toward Lechner by permitting her to attend her

stepfather’s funeral, she took off her GPS monitor and escaped. Suffice it to say

that none of this reflects well on Lechner’s character.

[14] Given the nature of Lechner’s offense and her character, as reflected in her

continued failure to abide by the law, we are unable to conclude that she has

met her burden of showing that her eighteen-year sentence is inappropriate.

Accordingly, we affirm the judgment of the trial court.

[15] Affirmed.

Vaidik, C.J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2351 | May 20, 2019 Page 7 of 7