MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 07 2018, 5:57 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 Sean C. Mullins Curtis T. Hill, Jr. Crown Point, Indiana Attorney General of Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jessica Sue Pichon, August 7, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-396 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Diane Ross Appellee-Plaintiff. Boswell, Judge Trial Court Cause No. 45G03-1702-F3-11
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018 Page 1 of 13 Case Summary
[1] Jessica Pichon pled guilty to two counts of resisting law enforcement, one as a
Level 3 felony and one as a Level 5 felony. The trial court expressly found no
mitigating or aggravating circumstances but then imposed enhanced,
consecutive sentences totaling fifteen years in prison. Pichon appeals, raising
two issues for our review: whether the trial court abused its discretion in
sentencing her without issuing a sentencing statement explaining its reasoning,
and whether the aggregate sentence is inappropriate in light of the nature of the
offenses and her character.
[2] We affirm.
Facts & Procedural History
[3] After consuming their supply of crack cocaine on February 15, 2017, Pichon
and her boyfriend, Donnell Howard, drove to a grocery store in East Chicago
that afternoon. Pichon went inside and loaded a cart with three cases of beer
and then started to leave without paying. When confronted by a store
employee, she grabbed one of the cases of beer and ran to her vehicle, where
Howard was waiting. A police officer tried to stop her, but Pichon jumped into
the passenger seat of the vehicle and told Howard to “Go, go, go!” Appendix
Vol. 2 at 30. The officer held onto the open passenger door as Howard put the
vehicle into reverse, nearly pinning the officer, and then drove forward at a high
rate of speed. The officer was able to let go and avoid being run over.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018 Page 2 of 13 [4] Another East Chicago police officer in a marked squad car with emergency
lights activated followed and attempted to stop Pichon and Howard.
Eventually, several Hammond police officers joined in the attempt to stop the
vehicle and four to five police vehicles were in pursuit. Howard and Pichon
continued at high rates of speed, made several abrupt turns, drove the wrong
way on a one-way street, and jumped a median, nearly striking other vehicles
and pedestrians. The vehicle pursuit came to an end after Pichon and
Howard’s vehicle T-boned another vehicle in an intersection. Pichon then tried
to flee on foot but was unsuccessful. The thirteen-year-old passenger in the
other vehicle died as a result of the collision, and the driver, her grandmother,
was critically injured.
[5] The State charged Pichon with five counts of resisting law enforcement (a Level
3 felony, a Level 5 felony, a Level 6 felony, and two Class A misdemeanors),
one count of Level 5 felony reckless homicide, and one count of Class A
misdemeanor theft. Pichon and the State entered into a plea agreement
pursuant to which she would plead guilty to resisting law enforcement as a
Level 3 felony and resisting law enforcement as a Level 5 felony, and the State
would dismiss the remaining charges, as well as counts under a separate cause
alleging failure to register as a sex offender, a Level 6 felony. The agreement
left sentencing to the trial court, “including whether [the two counts] shall be
run concurrent or consecutive to each other”. Id. at 27.
[6] At the sentencing hearing on January 17, 2018, Pichon’s counsel noted that at
the age of twelve Pichon had been adjudicated a delinquent in Illinois for felony
Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018 Page 3 of 13 criminal sexual abuse. She violated probation a number of times and spent
much of the remainder of her childhood in a juvenile correctional facility.
Counsel also noted that Pichon had attempted suicide on multiple occasions,
and that she suffers from several mental health disorders. Further, Pichon’s
parental rights to the three young children she shared with Howard had been
terminated recently. Counsel asked the trial court to consider Pichon’s guilty
plea, her remorsefulness, her mental health, and her culpability in relation to
Howard’s. Counsel requested consideration as a Purposeful Incarceration
offender so that Pichon could receive drug treatment while incarcerated.
[7] The State emphasized the violent nature of the crash and that there were two
victims – a child who died and her seriously injured grandmother. The State
noted that Pichon’s biggest concern after being caught trying to flee on foot was
the damage done to her own car. Relying on Pichon’s active role in the
offenses, her criminal and juvenile history, and her poor record on probation,
the State requested the trial court impose an aggregate fifteen-year sentence.
[8] Pichon then spoke on her own behalf, taking responsibility for her actions and
apologizing to the victims’ family for the pain and loss she had caused. The
trial court acknowledged her “very heartfelt apology.” Id. at 41. After
expressing hope that Pichon really intended to make a change, the trial court
stated: “You’ve had a lot of opportunities and it’s so unfortunate that this had
to be the thing that switched the light bulb for you, because it was just a
horrible, horrible accident.” Id.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018 Page 4 of 13 [9] Without mentioning mitigating or aggravating circumstances, the trial court
then sentenced Pichon to ten years for the Level 3 felony and five years for the
Level 5 felony, to be served consecutively for a total sentence of fifteen years.
The trial court recommended the sentence be served in a Purposeful
Incarceration therapeutic community and noted it would consider a
modification of the sentence upon successful completion of the program. In its
written sentencing order, the trial court indicated that it found no mitigating or
aggravating circumstances. Pichon now appeals her sentence.
Discussion & Decision
[10] Pichon contends that the trial court abused its sentencing discretion by entering
a sentencing statement devoid of reasoning for its imposition of enhanced
sentences.1 We agree.
[11] Ind. Code § 35-38-1-7.1(d) provides that a trial court may impose any sentence
that is “authorized by statute; and permissible under the Constitution of the
State of Indiana; regardless of the presence or absence of aggravating
circumstances or mitigating circumstances.” Therefore, if a sentence is within
the statutory range, it is subject to review only for an abuse of
1 Pichon does not challenge the consecutive nature of her sentences on appeal. Rather, she specifically argues that the trial court “issued an aggravated sentence of fifteen years, going above the twelve-year advisory” without providing “specific reasoning for imposing the aggravated sentence.” Appellant’s Brief at 8.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018 Page 5 of 13 discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on
reh’g, 875 N.E.2d 218 (Ind. 2007).
[12] A trial court may abuse its sentencing discretion by, among other things, failing
to enter a sentencing statement or entering a statement that omits factors that
are clearly supported by the record and advanced for consideration. Id. For an
appellate court to carry out its function of reviewing the trial court’s exercise of
sentencing discretion, the appellate court must be advised of the reasons for the
imposition of the sentence, and this necessarily requires a statement of facts
“which are peculiar to the particular defendant and the crime, as opposed to
general impressions or conclusions.” Jackson v. State, 45 N.E.3d 1249, 1251
(Ind. Ct. App. 2015) (quoting Anglemyer, 868 N.E.2d at 490). This is expressed
in Ind. Code § 35-38-1-1.3, which requires a court pronouncing a sentence for a
felony conviction to “issue a statement of the court’s reasons for selecting the
sentence that it imposes unless the trial court imposes the advisory sentence for
the felony.” When we review the sufficiency of a sentencing statement, we
examine both the trial court’s oral and written statements. Gleason v. State, 965
N.E.2d 702, 710 (Ind. Ct. App. 2012).
[13] Here, the trial court’s oral sentencing statement touches, if at all, only obliquely
on possible aggravating and mitigating circumstances and only in the most
general terms. And the trial court’s written sentencing statement explicitly
states the trial court found no aggravating and no mitigating circumstances.
Although this would be acceptable if the trial court had imposed the advisory
sentences for Pichon’s convictions, it did not do so. Pichon’s conviction for
Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018 Page 6 of 13 Level 3 felony resisting law enforcement carries a possible penalty of three to
sixteen years, with an advisory sentence of nine years. Ind. Code § 35-50-2-
5(b). The trial court sentenced Pichon to ten years for this offense. Her
conviction for Level 5 felony resisting law enforcement carries a possible
penalty of one to six years, with an advisory sentence of three years. I.C. § 35-
50-2-6(b). The trial court imposed a sentence of five years for this offense.
[14] Based on our review of the trial court’s written sentencing order and the
transcript of the sentencing hearing, we conclude that the trial court did not
issue a “reasonably detailed recitation” of its reasons for imposing the particular
sentence and failed to address factors that were clearly supported by the record
and advanced for consideration. Anglemyer, 868 N.E.2d at 490. Therefore, as
the State appears to concede, the trial court abused its discretion.
[15] When we encounter a trial court sentencing order that does not meet the
requirements of the law, we have several options. Windhorst v. State, 868
N.E.2d 504, 507 (Ind. 2007). We may remand to the trial court for a
clarification or new sentencing determination; we may affirm the sentence if the
error is harmless; or we may exercise our authority to review and revise the
sentence. Brown v. State, 783 N.E.2d 1121, 1129 (Ind. 2003). We find the error
harmless in this case because, as set out below, the sentences imposed were not
inappropriate. See Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007)
(“even if the trial court is found to have abused its discretion in the process it
used to sentence the defendant, the error is harmless if the sentence imposed
was not inappropriate”), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018 Page 7 of 13 [16] In determining whether a sentence is inappropriate, we look to the nature of the
offense and the character of the offender. See Ind. Appellate Rule 7(B). We
may consider any factors appearing in the record when conducting this
independent sentencing review. Holloway v. State, 950 N.E.2d 803, 806 (Ind. Ct.
App. 2011). Further, whether we regard a sentence as inappropriate “turns on
our sense of 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 v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
[17] The nature of Pichon’s offenses was particularly egregious and senseless. A
thirteen-year-old child was killed, her grandmother was seriously injured, a
police officer was nearly run over, and countless others were put at risk because
Pichon and her boyfriend together decided to lead police on a high-speed chase
after stealing a case of beer.2 They did this while high on crack cocaine. After
the crash, Pichon attempted to flee on foot, unconcerned about her two helpless
victims. Pichon later pled guilty, but that appears to have been primarily a
pragmatic decision given the strength of the evidence against her and the fact
that the State dropped a number of charges and an entirely separate criminal
cause involving failure to register as a sex offender.
[18] Aside from her heartfelt apology at sentencing, Pichon’s character is not
particularly mitigating. She has a significant juvenile history from the age of
2 We do not agree with Pichon’s assessment of her participation in the crimes. Although she was not the driver, her role was far from “passive” and “limited”. Appellant’s Reply Brief at 7.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018 Page 8 of 13 twelve to adulthood, a history of violating probation, and two prior
misdemeanor convictions for conversion. She was on probation at the time she
committed these crimes. Additionally, Pichon was an unemployed, daily
crack-cocaine user, who had not seen her three young daughters since 2015 and
had her parental rights terminated in 2017.
[19] We conclude that the enhanced sentences are not inappropriate given the
nature of Pichon’s offenses and her character. Further, the trial court’s
imposition of consecutive sentences, which Pichon does not challenge, reflects
well-established law that injury to multiple victims supports the imposition of
consecutive sentences. See Lewis v. State, 31 N.E.3d 539, 543 (Ind. Ct. App.
2015) (where sentencing order lacked specificity, remand was unnecessary
“because the rationale for consecutive sentences is apparent on the face of the
record”; “there were two victims”). Accordingly, we affirm the consecutive
sentences of ten years for the Level 3 felony and five years for the Level 5
felony, which were imposed by the trial court with a referral to the Purposeful
Incarceration Program and a potential for sentence modification upon
successful completion of the program.
[20] Judgment affirmed.
Najam, J., concurs.
Robb, J., dissents with opinion.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018 Page 9 of 13 IN THE COURT OF APPEALS OF INDIANA
Jessica Sue Pichon, Court of Appeals Case No. 18A-CR-396 Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff,
Robb, Judge, dissenting.
[1] I respectfully dissent.
[2] I agree with the majority that the trial court abused its discretion in failing to
enter a sentencing order that supports the sentence it imposed. I cannot agree,
however, that the error is harmless.
[3] Despite acknowledging the shortcomings in the trial court’s sentencing
statement, the majority nonetheless reviews the sentence imposed and
determines it is not inappropriate because the nature of Pichon’s offenses was
particularly egregious, the nature of her character is not particularly mitigating,
and the imposition of consecutive sentences “reflects well-established law that
injury to multiple victims supports the imposition of consecutive sentences.”
Slip op. at ¶ 19. In conducting Appellate Rule 7(B) review of a sentence, we are
Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018 Page 10 of 13 to give “due consideration” to the trial court’s decision. We also assess the trial
court’s recognition or nonrecognition of aggravators and mitigators as an initial
guide to determining whether the sentence imposed was inappropriate. Gibson
v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). We must therefore give due
consideration to the fact that the trial court found no aggravators in this case.
The trial court did not merely fail to address the aggravating circumstances –
the trial court specifically stated, “Aggravating Circumstances: None.”
Appendix of the Appellant, Volume Two at 76.
[4] To order a consecutive sentence, “the trial court must find at least one
aggravating circumstance, and consecutive sentences are improper when
aggravators and mitigators are in equipoise.” Hoeppner v. State 918 N.E.2d 695,
699 (Ind. Ct. App. 2009). Yes, multiple victims can support the imposition of
consecutive sentences. But I have found no case that says multiple victims
require consecutive sentences. And the mere fact that multiple victims are
obvious on the face of the record does not overcome the trial court’s specific
nonrecognition of that as an aggravating factor. A consecutive sentence clearly
cannot stand on the findings made by the trial court and I do not believe we can
unilaterally disregard the trial court’s findings in this regard, even on 7(B)
review.
[5] The majority cites Lewis v. State, 31 N.E.3d 539 (Ind. Ct. App. 2015), in support
of the imposition of consecutive sentences here. In Lewis, the trial court
imposed an above-advisory sentence for a count of felony battery and ordered it
be served consecutively to a sentence for misdemeanor battery. The trial court’s
Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018 Page 11 of 13 written sentencing statement did not provide an explanation for the imposition
of the enhanced sentence or the consecutive sentences. The trial court’s oral
sentencing statement did mention the defendant’s extensive criminal history,
however, with an emphasis on prior offenses similar to his current offenses.
This court noted the trial court’s sentencing order lacked specificity as to the
reason for imposing consecutive sentences, and despite noting a single
aggravator—here, criminal history—may both enhance a sentence and support
imposing consecutive sentences, the court determined the reason for
consecutive sentences was “apparent on the face of the record” in that there
were two victims. Id. at 543. Because the trial court in Lewis found—or at least
discussed—an aggravating circumstance that could have alone supported the
sentence imposed, Lewis is inapposite to this case and does not justify affirming
consecutive sentences in this case.
[6] Rather, I look to Marcum v. State, 725 N.E.2d 852 (Ind. 2000), in which the trial
court specifically found the aggravating circumstance (a crime spree) and
mitigating circumstance (the defendant’s youthful age) to be in balance but
imposed consecutive sentences. The Indiana Supreme Court noted that to
impose consecutive sentences, the trial court must find at least one aggravating
circumstance and that one aggravating circumstance may be used to both
enhance a sentence and justify consecutive sentences. Id. at 864. Although the
defendant’s crimes were committed against multiple victims, the court stated
that “because the trial court found the aggravating and mitigating circumstances
to be in balance, there is no basis on which to impose consecutive terms.” Id.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018 Page 12 of 13 Accordingly, the court remanded the case to the trial court with direction to
impose concurrent sentences. Id.; see also Wentz v. State, 766 N.E.2d 351, 359
(Ind. 2002) (holding imposition of consecutive sentences for murder, burglary,
robbery, residential entry, and auto theft against at least five victims was
inappropriate where the trial court twice stated the mitigating and aggravating
factors were in balance and remanding for trial court to impose concurrent
sentences). We presume the Supreme Court is well aware of Appellate Rule
7(B) and harmless error standards and yet the court did not review the sentences
in these cases for harmless error.
[7] Therefore, I cannot agree the trial court’s error is harmless because the trial
court could not impose the sentence it did on the findings it made. We cannot
negate the error in an unlawful sentence by determining for ourselves the
sentence is not inappropriate. Our supreme court’s position is clear: where the
trial court does not find an aggravating circumstance that would justify
imposition of consecutive sentences, consecutive sentences are inappropriate
and the proper remedy is remand for the imposition of concurrent sentences.
See Marcum, 725 N.E.2d at 864; Wentz, 766 N.E.2d at 359. Because Indiana
Code section 35-38-1-7.1(d) allows a trial court to impose any sentence
authorized by statute regardless of the presence or absence of aggravating or
mitigating circumstances, and for the reasons discussed by the majority, I do
not believe the above-advisory sentences are inappropriate. However, I would
remand for the trial court to order the sentences be served concurrently, for a
total sentence of nine years.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018 Page 13 of 13