MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 29 2018, 10:44 am regarded as precedent or cited before any 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 Jeremy K. Nix Curtis T. Hill, Jr. Huntington, Indiana Attorney General of Indiana
Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dinah Downey, March 29, 2018 Appellant-Defendant, Court of Appeals Case No. 35A02-1710-CR-2257 v. Appeal from the Huntington Superior Court State of Indiana, The Honorable Jennifer E. Appellee-Plaintiff Newton, Judge Trial Court Cause No. 35D01-1610-F3-212
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 35A02-1710-CR-2257 | March 29, 2018 Page 1 of 7 [1] Dinah Downey appeals her twelve-year sentence for Level 3 felony dealing in a
narcotic drug 1 and Level 5 felony dealing in a schedule IV controlled
substance. 2 She argues her sentence is inappropriate. We affirm.
Facts and Procedural History [2] On December 3, 2015, Downey sold oxycodone with acetaminophen to a
Huntington City Police confidential informant. On December 4, 2015, she sold
Tramadol to a Huntington City Police confidential informant. On October 19,
2016, the State charged Downey with Level 3 felony dealing in a narcotic drug
and Level 5 felony dealing in a schedule IV controlled substance. Downey was
arrested on February 15, 2017.
[3] Prior to the crimes, Downey was diagnosed with Wolff-Parkinson-White
syndrome, which affects her heart. She was scheduled to have surgery on May
5, 2017. The trial court released her from custody so she could have surgery,
but it ordered her to contact community corrections to begin electronic
monitoring.
[4] On May 23, 2017, the State reported Downey had violated the terms of her
electronic monitoring by allowing the device’s battery to die. The court warned
Downey to not allow that to happen again or she would be subject to arrest.
1 Ind. Code § 35-48-4-1 (2014). 2 Ind. Code § 35-48-4-3 (2014).
Court of Appeals of Indiana | Memorandum Decision 35A02-1710-CR-2257 | March 29, 2018 Page 2 of 7 [5] On May 30, 2017, Downey pled guilty to both charges with an open plea
agreement. The State had offered sentencing terms but Downey rejected that
offer. The trial court set a sentencing hearing for December 19, 2017. In
September 2017, Downey again violated the terms of electronic monitoring by
testing positive for methamphetamine and having paraphernalia in her
possession. Because of these violations, the court reset the sentencing hearing
for September 19, 2017.
[6] At sentencing, the trial court found Downey’s guilty plea was a mitigator but
that it was outweighed by the aggravators of her criminal history and inability
to comply with the terms of probation and pre-trial release. The trial court
specifically noted:
So, I’m going to note that you’ve recently violated the conditions of your pretrial release. Um, you not only did--according to Community Corrections on the pretrial release, I mean you tested positive for drugs, you had drug paraphernalia, um, this wasn’t just taking some pills. And this is a dealing charge, and would note your extensive criminal history. Yes, you have only one (l) prior felony, but you still have one (l) prior felony. But you have twenty-one (21) misdemeanors. Um, and seven (7) petition to revokes [sic]. You have an extensive criminal history. Um, you continue to use drugs while on pretrial release.
(Tr. at 57.) Finding Downey was not “a candidate for [ ] probation,” (id.), the
trial court sentenced her to twelve years for the Level 3 felony and four years for
the Level 5 felony, to be served concurrently. The trial court did not suspend
any of the sentence.
Court of Appeals of Indiana | Memorandum Decision 35A02-1710-CR-2257 | March 29, 2018 Page 3 of 7 Discussion and Decision [7] Downey asserts her sentence is inappropriate. She argues that, because the
substances were sold only to a confidential informant, the nature of the offense
did not warrant a sentence higher than the advisory. Additionally, she argues
the sentence is inappropriate for her character because her criminal history
consisted mostly of misdemeanors that were not drug-related convictions.
[8] Under Ind. Appellate Rule 7(B), we may revise a sentence if, after due
consideration of the trial court’s decision, we find the sentence inappropriate in
light of the nature of the offense and the character of the offender. Anglemyer v.
State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (2007).
We consider not only the aggravators and mitigators found by the trial court,
but also any other factors appearing in the record. Johnson v. State, 986 N.E.2d
852, 856 (Ind. Ct. App. 2013). We defer to the trial court’s decision, and our
goal is to determine whether the defendant’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. Downey, as the appellant, bears the
burden of demonstrating her sentence is inappropriate. See Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
[9] When considering the nature of the offense, the advisory sentence is the starting
point for determining the appropriateness of a sentence. Anglemyer, 868 N.E.2d
at 494. The sentencing range for a Level 3 felony is “a fixed term of between
three (3) and sixteen (16) years, with the advisory sentence being nine (9)
Court of Appeals of Indiana | Memorandum Decision 35A02-1710-CR-2257 | March 29, 2018 Page 4 of 7 years.” Ind. Code § 35-50-2-5(b) (2014). The sentencing range for a Level 5
felony is “a fixed term of between one (1) and six (6) years, with the advisory
sentence being three (3) years.” Ind. Code § 35-50-2-6 (2014). The trial court
sentenced Downey to twelve years for the Level 3 felony and four years for the
Level 5 felony, to be served concurrently. Thus, Downey received a twelve-
year sentence for her offenses.
[10] Downey sold two different types of drugs on two different days to a Huntington
City Police confidential informant. While we acknowledge the fact that this
means the drugs were not introduced to the general populace, Downey did not
know the buyer was an informant when she committed the crimes. Her
behavior indicates her willingness to sell illegal drugs and her ability to find
multiple drugs to sell. Nevertheless, there is nothing more egregious about
Downey’s crimes than the standard dealing offenses.
[11] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Johnson, 986 N.E.2d at 857. The significance of
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 29 2018, 10:44 am regarded as precedent or cited before any 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 Jeremy K. Nix Curtis T. Hill, Jr. Huntington, Indiana Attorney General of Indiana
Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dinah Downey, March 29, 2018 Appellant-Defendant, Court of Appeals Case No. 35A02-1710-CR-2257 v. Appeal from the Huntington Superior Court State of Indiana, The Honorable Jennifer E. Appellee-Plaintiff Newton, Judge Trial Court Cause No. 35D01-1610-F3-212
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 35A02-1710-CR-2257 | March 29, 2018 Page 1 of 7 [1] Dinah Downey appeals her twelve-year sentence for Level 3 felony dealing in a
narcotic drug 1 and Level 5 felony dealing in a schedule IV controlled
substance. 2 She argues her sentence is inappropriate. We affirm.
Facts and Procedural History [2] On December 3, 2015, Downey sold oxycodone with acetaminophen to a
Huntington City Police confidential informant. On December 4, 2015, she sold
Tramadol to a Huntington City Police confidential informant. On October 19,
2016, the State charged Downey with Level 3 felony dealing in a narcotic drug
and Level 5 felony dealing in a schedule IV controlled substance. Downey was
arrested on February 15, 2017.
[3] Prior to the crimes, Downey was diagnosed with Wolff-Parkinson-White
syndrome, which affects her heart. She was scheduled to have surgery on May
5, 2017. The trial court released her from custody so she could have surgery,
but it ordered her to contact community corrections to begin electronic
monitoring.
[4] On May 23, 2017, the State reported Downey had violated the terms of her
electronic monitoring by allowing the device’s battery to die. The court warned
Downey to not allow that to happen again or she would be subject to arrest.
1 Ind. Code § 35-48-4-1 (2014). 2 Ind. Code § 35-48-4-3 (2014).
Court of Appeals of Indiana | Memorandum Decision 35A02-1710-CR-2257 | March 29, 2018 Page 2 of 7 [5] On May 30, 2017, Downey pled guilty to both charges with an open plea
agreement. The State had offered sentencing terms but Downey rejected that
offer. The trial court set a sentencing hearing for December 19, 2017. In
September 2017, Downey again violated the terms of electronic monitoring by
testing positive for methamphetamine and having paraphernalia in her
possession. Because of these violations, the court reset the sentencing hearing
for September 19, 2017.
[6] At sentencing, the trial court found Downey’s guilty plea was a mitigator but
that it was outweighed by the aggravators of her criminal history and inability
to comply with the terms of probation and pre-trial release. The trial court
specifically noted:
So, I’m going to note that you’ve recently violated the conditions of your pretrial release. Um, you not only did--according to Community Corrections on the pretrial release, I mean you tested positive for drugs, you had drug paraphernalia, um, this wasn’t just taking some pills. And this is a dealing charge, and would note your extensive criminal history. Yes, you have only one (l) prior felony, but you still have one (l) prior felony. But you have twenty-one (21) misdemeanors. Um, and seven (7) petition to revokes [sic]. You have an extensive criminal history. Um, you continue to use drugs while on pretrial release.
(Tr. at 57.) Finding Downey was not “a candidate for [ ] probation,” (id.), the
trial court sentenced her to twelve years for the Level 3 felony and four years for
the Level 5 felony, to be served concurrently. The trial court did not suspend
any of the sentence.
Court of Appeals of Indiana | Memorandum Decision 35A02-1710-CR-2257 | March 29, 2018 Page 3 of 7 Discussion and Decision [7] Downey asserts her sentence is inappropriate. She argues that, because the
substances were sold only to a confidential informant, the nature of the offense
did not warrant a sentence higher than the advisory. Additionally, she argues
the sentence is inappropriate for her character because her criminal history
consisted mostly of misdemeanors that were not drug-related convictions.
[8] Under Ind. Appellate Rule 7(B), we may revise a sentence if, after due
consideration of the trial court’s decision, we find the sentence inappropriate in
light of the nature of the offense and the character of the offender. Anglemyer v.
State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (2007).
We consider not only the aggravators and mitigators found by the trial court,
but also any other factors appearing in the record. Johnson v. State, 986 N.E.2d
852, 856 (Ind. Ct. App. 2013). We defer to the trial court’s decision, and our
goal is to determine whether the defendant’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. Downey, as the appellant, bears the
burden of demonstrating her sentence is inappropriate. See Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
[9] When considering the nature of the offense, the advisory sentence is the starting
point for determining the appropriateness of a sentence. Anglemyer, 868 N.E.2d
at 494. The sentencing range for a Level 3 felony is “a fixed term of between
three (3) and sixteen (16) years, with the advisory sentence being nine (9)
Court of Appeals of Indiana | Memorandum Decision 35A02-1710-CR-2257 | March 29, 2018 Page 4 of 7 years.” Ind. Code § 35-50-2-5(b) (2014). The sentencing range for a Level 5
felony is “a fixed term of between one (1) and six (6) years, with the advisory
sentence being three (3) years.” Ind. Code § 35-50-2-6 (2014). The trial court
sentenced Downey to twelve years for the Level 3 felony and four years for the
Level 5 felony, to be served concurrently. Thus, Downey received a twelve-
year sentence for her offenses.
[10] Downey sold two different types of drugs on two different days to a Huntington
City Police confidential informant. While we acknowledge the fact that this
means the drugs were not introduced to the general populace, Downey did not
know the buyer was an informant when she committed the crimes. Her
behavior indicates her willingness to sell illegal drugs and her ability to find
multiple drugs to sell. Nevertheless, there is nothing more egregious about
Downey’s crimes than the standard dealing offenses.
[11] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Johnson, 986 N.E.2d at 857. The significance of
criminal history varies based on the gravity, nature, and number of prior
offenses in relation to the current offense. Id. Downey argues her criminal
history should not have been found as an aggravating factor because none of
the prior convictions were drug-related. 3 She argues that her guilty plea,
entered within “just three and a half months after her arrest[,]” (Appellant’s Br.
3 Downey does acknowledge the alcohol-related offenses are substance abuse crimes.
Court of Appeals of Indiana | Memorandum Decision 35A02-1710-CR-2257 | March 29, 2018 Page 5 of 7 at 9), demonstrates “her acceptance of responsibility for her actions.” (Id.) As
such, she argues that a portion of her sentence should have been suspended as
she took responsibility for her actions and pled guilty.
[12] Downey’s criminal history includes numerous juvenile adjudications. As an
adult, she has been convicted of Class D felony obstruction of justice and
twenty-one misdemeanor convictions including: possession of alcohol by a
minor, conversion, driving while intoxicated, public intoxication, driving while
suspended, disorderly conduct, and false informing. The trial court noted
Downey’s probation had been revoked seven times. At least two petitions to
revoke were filed because Downey tested positive for a substance she was not
allowed to have, i.e., alcohol and cocaine.
[13] The trial court noted Downey had “an extensive criminal history.” (Tr. at 57.)
It was concerned with Downey’s drug use and her non-compliance with the
terms of her pre-trial release. It indicated she would not be able to be compliant
with “any type of Probation, um Community Corrections, or anything.” (Id. at
56.) Downey had been offered multiple opportunities to serve sentences on
probation but she repeatedly violated the terms of probation. Although
Downey’s criminal history does not contain drug-related offenses, it
demonstrates a pattern of behavior the trial court found understandably
disturbing. We cannot say her criminal history was the sole aggravator; rather,
her pattern of non-compliant behavior was the foremost aggravator. Her
behavior over more than twenty years indicates a failure to take responsibility
for her actions. Given these circumstances, Downey’s character does not lead
Court of Appeals of Indiana | Memorandum Decision 35A02-1710-CR-2257 | March 29, 2018 Page 6 of 7 us to see as inappropriate the trial court’s sentence of twelve years without any
portion of the sentence suspended. See Rutherford v. State, 866 N.E.2d 867, 874
(Ind. Ct. App. 2007) (continuing to commit crimes after frequent contacts with
the judicial system is a poor reflection on one’s character); see also Connor v.
State, 58 N.E.3d 215, 221 (Ind. Ct. App. 2016) (continued crimes indicate a
failure to take full responsibility for one’s actions). 4
Conclusion [14] Downey has not demonstrated her twelve-year sentence is inappropriate in light
of her character and her offense. Accordingly, we affirm.
[15] Affirmed.
Vaidik, C.J., and Altice, J., concur.
4 Downey also appears to request we reexamine the weight given to her guilty plea. She argues her plea showed she had taken responsibility for her action and should have resulted in a partially suspended sentence. However, the trial court did recognize her plea as a mitigating factor but found it was outweighed by her criminal history and her non-compliance with probation requirements. The trial court did not overlook her plea. It simply did not give it the weight she wished it to have. Downey’s request that we reexamine the weight given to her guilty plea is not a request we can grant. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007) (appellate court can no longer review the weight assigned to aggravators and mitigators), clarified on reh’g 875 N.E.2d 218 (2007).
Court of Appeals of Indiana | Memorandum Decision 35A02-1710-CR-2257 | March 29, 2018 Page 7 of 7