MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 20 2019, 9:01 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 Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kathy Hardesty, March 20, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2727 v. Appeal from the Ripley Superior Court State of Indiana, The Honorable Jeffrey L. Appellee-Plaintiff. Sharp, Judge Trial Court Cause No. 69D01-1804-F6-100
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2727 | March 20, 2019 Page 1 of 6 Statement of the Case [1] Kathy Hardesty appeals her sentence following her conviction for dealing in
methamphetamine, as a Level 5 felony, and her adjudication as a habitual
offender pursuant to a guilty plea. Hardesty presents a single issue for our
review, namely, whether her sentence is inappropriate in light of the nature of
the offense and her character. We affirm.
Facts and Procedural History [2] On April 5, 2018, Indiana State Police Trooper Jordan Craig and other officers
conducted a knock and talk investigation at Hardesty’s house in Holton. Once
Trooper Craig and the other officers were inside, they found nine adults,
including Hardesty, and two small children. After Trooper Craig observed a
burned marijuana cigarette in plain view, and after one of the adults was found
to possess methamphetamine after consenting to a search of his person, Trooper
Craig obtained and executed a search warrant for the residence. In the course
of that search, officers found: a pipe used to smoke methamphetamine (found
inside a diaper bag); five syringes (one on a couch, one in a laundry basket, and
three in a backpack); a corner-cut baggie containing methamphetamine;
Hardesty’s wallet, with $1000 in cash; and a ledger listing names and amounts
owed for methamphetamine sales.
[3] Hardesty agreed to talk to Trooper Craig, and she admitted that the cash found
in her wallet was payment for a methamphetamine sale. Hardesty also told
Trooper Craig that she had sold methamphetamine to “numerous people in
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2727 | March 20, 2019 Page 2 of 6 Ripley [County] and Jennings County” and that “[s]he was dealing to people
who dealt.” Tr. at 27. Hardesty stated that she sold approximately one ounce
of methamphetamine per week.
[4] The State charged Hardesty with dealing in methamphetamine, as a Level 5
felony; maintaining a common nuisance, a Level 6 felony; possessing
methamphetamine, as a Level 6 felony; and being a habitual offender.
Hardesty pleaded guilty to dealing in methamphetamine, as a Level 5 felony,
and to being a habitual offender. In exchange for her plea, the State dismissed
the other charges. The trial court accepted the guilty plea, which left sentencing
open to the trial court’s discretion. Following a hearing, the trial court
sentenced Hardesty to six years for the Level 5 felony enhanced by six years for
being a habitual offender, for an aggregate term of twelve years executed. This
appeal ensued.
Discussion and Decision [5] Hardesty contends that her sentence is inappropriate in light of the nature of the
offense and her character. Indiana Appellate Rule 7(B) provides that “[t]he
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.” This Court
has recently held that “[t]he advisory sentence is the starting point the
legislature has selected as an appropriate sentence for the crime committed.”
Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana
Supreme Court has explained that: Court of Appeals of Indiana | Memorandum Decision 18A-CR-2727 | March 20, 2019 Page 3 of 6 The principal role of appellate review should be to attempt to leaven the outliers . . . but not achieve a perceived “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. [Anglemyer, 868 N.E.2d at 494].
Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).
[6] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we
regard a sentence as inappropriate at the end of the day turns on “our sense of
the culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other facts that come to light in a given case.” Id. at 1224.
The question is not whether another sentence is more appropriate, but rather
whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[7] Indiana Code Section 35-50-2-6(b) states that a person convicted of a Level 5
felony shall be imprisoned for a fixed term between one and six years, with an
advisory sentence of three years. Indiana Code Section 35-50-2-8 states in
relevant part that, where a person has been convicted of a Level 5 felony and
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2727 | March 20, 2019 Page 4 of 6 found to be a habitual offender, the court shall sentence her to an additional
fixed term that is between two years and six years. Here, the trial court
identified as an aggravating circumstance Hardesty’s criminal history, including
a 2006 conviction for dealing in methamphetamine, as a Class B felony;
probation violations in 2009 and 2011; a 2015 conviction for possession of
methamphetamine, as a Level 6 felony; and “a home detention violation in
2017.” Appellant’s App. Vol. II at 89. The trial court also found aggravating:
the presence of young children in the home; that Hardesty was “a major source
of methamphetamine to Ripley County”; and her high risk to reoffend. Id. The
trial court found two mitigating circumstances, namely, Hardesty’s cooperation
with law enforcement officers and her guilty plea. The trial court found that the
aggravators outweighed the mitigators and imposed the maximum aggregate
sentence of twelve years.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 20 2019, 9:01 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 Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kathy Hardesty, March 20, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2727 v. Appeal from the Ripley Superior Court State of Indiana, The Honorable Jeffrey L. Appellee-Plaintiff. Sharp, Judge Trial Court Cause No. 69D01-1804-F6-100
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2727 | March 20, 2019 Page 1 of 6 Statement of the Case [1] Kathy Hardesty appeals her sentence following her conviction for dealing in
methamphetamine, as a Level 5 felony, and her adjudication as a habitual
offender pursuant to a guilty plea. Hardesty presents a single issue for our
review, namely, whether her sentence is inappropriate in light of the nature of
the offense and her character. We affirm.
Facts and Procedural History [2] On April 5, 2018, Indiana State Police Trooper Jordan Craig and other officers
conducted a knock and talk investigation at Hardesty’s house in Holton. Once
Trooper Craig and the other officers were inside, they found nine adults,
including Hardesty, and two small children. After Trooper Craig observed a
burned marijuana cigarette in plain view, and after one of the adults was found
to possess methamphetamine after consenting to a search of his person, Trooper
Craig obtained and executed a search warrant for the residence. In the course
of that search, officers found: a pipe used to smoke methamphetamine (found
inside a diaper bag); five syringes (one on a couch, one in a laundry basket, and
three in a backpack); a corner-cut baggie containing methamphetamine;
Hardesty’s wallet, with $1000 in cash; and a ledger listing names and amounts
owed for methamphetamine sales.
[3] Hardesty agreed to talk to Trooper Craig, and she admitted that the cash found
in her wallet was payment for a methamphetamine sale. Hardesty also told
Trooper Craig that she had sold methamphetamine to “numerous people in
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2727 | March 20, 2019 Page 2 of 6 Ripley [County] and Jennings County” and that “[s]he was dealing to people
who dealt.” Tr. at 27. Hardesty stated that she sold approximately one ounce
of methamphetamine per week.
[4] The State charged Hardesty with dealing in methamphetamine, as a Level 5
felony; maintaining a common nuisance, a Level 6 felony; possessing
methamphetamine, as a Level 6 felony; and being a habitual offender.
Hardesty pleaded guilty to dealing in methamphetamine, as a Level 5 felony,
and to being a habitual offender. In exchange for her plea, the State dismissed
the other charges. The trial court accepted the guilty plea, which left sentencing
open to the trial court’s discretion. Following a hearing, the trial court
sentenced Hardesty to six years for the Level 5 felony enhanced by six years for
being a habitual offender, for an aggregate term of twelve years executed. This
appeal ensued.
Discussion and Decision [5] Hardesty contends that her sentence is inappropriate in light of the nature of the
offense and her character. Indiana Appellate Rule 7(B) provides that “[t]he
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.” This Court
has recently held that “[t]he advisory sentence is the starting point the
legislature has selected as an appropriate sentence for the crime committed.”
Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana
Supreme Court has explained that: Court of Appeals of Indiana | Memorandum Decision 18A-CR-2727 | March 20, 2019 Page 3 of 6 The principal role of appellate review should be to attempt to leaven the outliers . . . but not achieve a perceived “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. [Anglemyer, 868 N.E.2d at 494].
Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).
[6] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we
regard a sentence as inappropriate at the end of the day turns on “our sense of
the culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other facts that come to light in a given case.” Id. at 1224.
The question is not whether another sentence is more appropriate, but rather
whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[7] Indiana Code Section 35-50-2-6(b) states that a person convicted of a Level 5
felony shall be imprisoned for a fixed term between one and six years, with an
advisory sentence of three years. Indiana Code Section 35-50-2-8 states in
relevant part that, where a person has been convicted of a Level 5 felony and
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2727 | March 20, 2019 Page 4 of 6 found to be a habitual offender, the court shall sentence her to an additional
fixed term that is between two years and six years. Here, the trial court
identified as an aggravating circumstance Hardesty’s criminal history, including
a 2006 conviction for dealing in methamphetamine, as a Class B felony;
probation violations in 2009 and 2011; a 2015 conviction for possession of
methamphetamine, as a Level 6 felony; and “a home detention violation in
2017.” Appellant’s App. Vol. II at 89. The trial court also found aggravating:
the presence of young children in the home; that Hardesty was “a major source
of methamphetamine to Ripley County”; and her high risk to reoffend. Id. The
trial court found two mitigating circumstances, namely, Hardesty’s cooperation
with law enforcement officers and her guilty plea. The trial court found that the
aggravators outweighed the mitigators and imposed the maximum aggregate
sentence of twelve years.
[8] Hardesty maintains that her sentence is inappropriate in light of the nature of
the offense because “there is nothing in the nature of [the] crime that makes it
above and beyond the nature of offense the legislature proscribed in the
criminal statute.” Appellant’s Br. at 12. And she maintains that her sentence is
inappropriate in light of her character because of her “significant work history,”
her history of addiction, her cooperation with law enforcement, her acceptance
of responsibility, and her remorse. Id.
[9] We cannot say that Hardesty’s sentence is inappropriate in light of the nature of
the offense or her character. Regarding the nature of the offense, Hardesty
admitted that she had sold methamphetamine in the presence of her two very
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2727 | March 20, 2019 Page 5 of 6 young grandchildren. With respect to her character, Hardesty admitted to
selling methamphetamine for ten years, and this is her third methamphetamine-
related felony conviction since 2006. Hardesty admitted that she had sold
methamphetamine to other dealers, and Trooper Craig testified that Hardesty
was “the source for a lot of mid-level drug dealers.” Appellant’s App. Vol. II at
89. Hardesty has two previous probation violations, and she violated the terms
of her home detention in 2017. Hardesty’s numerous encounters with law
enforcement and the courts have done nothing to discourage her from criminal
conduct. We cannot say that Hardesty’s twelve-year sentence is inappropriate
in light of the nature of the offense and her character.
[10] Affirmed.
Baker, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2727 | March 20, 2019 Page 6 of 6