MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Feb 16 2018, 8:07 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral 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
Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kristy L. Bowling, February 16, 2018 Appellant-Defendant, Court of Appeals Case No. 35A02-1709-CR-2134 v. Appeal from the Huntington Superior Court State of Indiana, The Honorable Jennifer E. Appellee-Plaintiff Newton, Judge Trial Court Cause Nos. 35D01-1610-F4-207 35D01-1708-F6-178
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2134 | February 16, 2018 Page 1 of 8 Case Summary [1] Kristy L. Bowling appeals her twenty-six-year sentence for Level 4 felony
dealing in a narcotic drug, Level 5 felony dealing in a narcotic drug, Level 6
felony possession of a hypodermic syringe, and being a habitual offender,
arguing that it is inappropriate. Although we affirm Bowling’s sentence, we
remand so that the trial court can correct the records to reflect that Bowling’s
fourteen-year habitual-offender enhancement is not a separate, consecutive
sentence but rather is attached to her ten-year sentence for Level 4 felony
dealing in a narcotic drug.
Facts and Procedural History [2] On December 2, 2015, Bowling sold hydromorphone hydrochloride to a
confidential informant working for the Huntington Police Department. Six
days later, Bowling sold 2.1 grams of morphine to a confidential informant. At
the time of the transactions, Bowling had recently been released from the
Department of Correction and was on probation. See Appellant’s App. Vol. II
p. 67; Tr. Vol. II p. 66.
[3] As a result of these transactions, in October 2016, the State, under Cause
Number 35D01-1610-F4-207, charged Bowling with Level 4 felony dealing in a
narcotic drug, Level 5 felony dealing in a narcotic drug, and being a habitual
offender. Bowling posted bond in April 2017 (the record shows that Bowling
gave birth in February 2017 and was not arrested until April, when “she had
Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2134 | February 16, 2018 Page 2 of 8 ample time to heal from the birthing process,” Tr. Vol. II p. 66). As a condition
of her bond, Bowling was required to submit to random drug tests and to test
negative. Appellant’s App. Vol. II p. 43. Bowling thereafter twice tested
positive for drugs, and the trial court issued a warrant for her arrest. Id. at 45.
[4] On August 2, 2017, Huntington Police Department Officers saw Bowling
driving and stopped her to serve the arrest warrant. As officers approached her
car, Bowling discarded a bag of syringes that she used to inject heroin and
meth. As a result of this incident, the State, under Cause Number 35D01-1708-
F6-178, charged Bowling with Level 6 felony possession of a hypodermic
syringe.
[5] Thereafter, Bowling pled guilty as charged in both cause numbers. See id. at 51-
52 (“There is no plea agreement offered to me in exchange for my plea of
guilty” & “I have chosen to allow the Court to decide my sentence in all
matters pending against me in the Huntington Superior Court”). At the
sentencing hearing, Bowling’s attorney conceded that she had “a very poor
record,” which included three felony convictions (operating a vehicle while
intoxicated, trafficking with an inmate, and theft), two probation violations,
and a bond revocation. Tr. Vol. II p. 54. However, defense counsel highlighted
that Bowling was the main provider for her three children—two teenagers and a
six-month-old baby. Defense counsel argued that although Bowling had pled
guilty to dealing drugs, she was not “a drug dealer” but rather “an addict” who
sold drugs as “a middle-man to feed [her] own addiction.” Id. at 55; see also id.
at 57 (arguing that Bowling was not at the “top of the chain”). Defense counsel
Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2134 | February 16, 2018 Page 3 of 8 also noted that when Bowling learned she was pregnant in May 2016, “she got
herself clean.” Id. at 56.
[6] The trial court found no mitigators and three aggravators: (1) Bowling’s
criminal history, including three felonies and two probation violations; (2)
Bowling committed the offenses in Cause No. F4-207 when she “had just
recently been released from incarceration” and was on probation; and (3) after
Bowling was arrested in Cause No. F4-207 and was out on bond, she continued
using drugs. Id. at 69. As for Bowling’s claim that she was an addict and had
to sell drugs to feed her addiction, the trial court pointed out that she stopped
using drugs when she was pregnant, which undercut her claim that she had to
sell drugs because she was an addict. Id. at 68. Accordingly, for Cause No. F4-
207, the trial court sentenced Bowling to ten years for Level 4 felony dealing in
a narcotic drug, enhanced by fourteen years for being a habitual offender, and a
concurrent sentence of five years for Level 5 felony dealing in a narcotic drug.
For Cause No. F6-178, the court sentenced Bowling to two years for Level 6
felony possession of a hypodermic syringe. The court ordered the sentences in
the two cause numbers to be served consecutively.
[7] Bowling now appeals her sentence.
Discussion and Decision [8] Bowling contends that her aggregate sentence of twenty-six years
is inappropriate and asks us to reduce it “to the advisory sentence on each
Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2134 | February 16, 2018 Page 4 of 8 charge, enhanced by the minimum habitual offender enhancement on the
dealing conviction.” Appellant’s Br. p. 12. Pursuant to Indiana Appellate Rule
7(B), an appellate 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.” Because we generally defer to the judgment of trial courts in
sentencing matters, Norris v. State, 27 N.E.3d 333, 335-36 (Ind. Ct. App. 2015),
defendants have the burden of persuading us that their sentences
are inappropriate, Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014).
“Whether a sentence is inappropriate ultimately turns on the culpability of the
defendant, the severity of the crime, the damage done to others, and a myriad
of other factors that come to light in a given case.” Id. (citing Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008)).
[9] Here, in the two cause numbers, Bowling pled guilty to a Level 4 felony, a
Level 5 felony, and a Level 6 felony, and she admitted that she was a habitual
offender. A person who commits a Level 4 felony shall be imprisoned for a
fixed term of between two and twelve years, with an advisory sentence of six
years. Ind.
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Feb 16 2018, 8:07 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral 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
Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kristy L. Bowling, February 16, 2018 Appellant-Defendant, Court of Appeals Case No. 35A02-1709-CR-2134 v. Appeal from the Huntington Superior Court State of Indiana, The Honorable Jennifer E. Appellee-Plaintiff Newton, Judge Trial Court Cause Nos. 35D01-1610-F4-207 35D01-1708-F6-178
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2134 | February 16, 2018 Page 1 of 8 Case Summary [1] Kristy L. Bowling appeals her twenty-six-year sentence for Level 4 felony
dealing in a narcotic drug, Level 5 felony dealing in a narcotic drug, Level 6
felony possession of a hypodermic syringe, and being a habitual offender,
arguing that it is inappropriate. Although we affirm Bowling’s sentence, we
remand so that the trial court can correct the records to reflect that Bowling’s
fourteen-year habitual-offender enhancement is not a separate, consecutive
sentence but rather is attached to her ten-year sentence for Level 4 felony
dealing in a narcotic drug.
Facts and Procedural History [2] On December 2, 2015, Bowling sold hydromorphone hydrochloride to a
confidential informant working for the Huntington Police Department. Six
days later, Bowling sold 2.1 grams of morphine to a confidential informant. At
the time of the transactions, Bowling had recently been released from the
Department of Correction and was on probation. See Appellant’s App. Vol. II
p. 67; Tr. Vol. II p. 66.
[3] As a result of these transactions, in October 2016, the State, under Cause
Number 35D01-1610-F4-207, charged Bowling with Level 4 felony dealing in a
narcotic drug, Level 5 felony dealing in a narcotic drug, and being a habitual
offender. Bowling posted bond in April 2017 (the record shows that Bowling
gave birth in February 2017 and was not arrested until April, when “she had
Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2134 | February 16, 2018 Page 2 of 8 ample time to heal from the birthing process,” Tr. Vol. II p. 66). As a condition
of her bond, Bowling was required to submit to random drug tests and to test
negative. Appellant’s App. Vol. II p. 43. Bowling thereafter twice tested
positive for drugs, and the trial court issued a warrant for her arrest. Id. at 45.
[4] On August 2, 2017, Huntington Police Department Officers saw Bowling
driving and stopped her to serve the arrest warrant. As officers approached her
car, Bowling discarded a bag of syringes that she used to inject heroin and
meth. As a result of this incident, the State, under Cause Number 35D01-1708-
F6-178, charged Bowling with Level 6 felony possession of a hypodermic
syringe.
[5] Thereafter, Bowling pled guilty as charged in both cause numbers. See id. at 51-
52 (“There is no plea agreement offered to me in exchange for my plea of
guilty” & “I have chosen to allow the Court to decide my sentence in all
matters pending against me in the Huntington Superior Court”). At the
sentencing hearing, Bowling’s attorney conceded that she had “a very poor
record,” which included three felony convictions (operating a vehicle while
intoxicated, trafficking with an inmate, and theft), two probation violations,
and a bond revocation. Tr. Vol. II p. 54. However, defense counsel highlighted
that Bowling was the main provider for her three children—two teenagers and a
six-month-old baby. Defense counsel argued that although Bowling had pled
guilty to dealing drugs, she was not “a drug dealer” but rather “an addict” who
sold drugs as “a middle-man to feed [her] own addiction.” Id. at 55; see also id.
at 57 (arguing that Bowling was not at the “top of the chain”). Defense counsel
Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2134 | February 16, 2018 Page 3 of 8 also noted that when Bowling learned she was pregnant in May 2016, “she got
herself clean.” Id. at 56.
[6] The trial court found no mitigators and three aggravators: (1) Bowling’s
criminal history, including three felonies and two probation violations; (2)
Bowling committed the offenses in Cause No. F4-207 when she “had just
recently been released from incarceration” and was on probation; and (3) after
Bowling was arrested in Cause No. F4-207 and was out on bond, she continued
using drugs. Id. at 69. As for Bowling’s claim that she was an addict and had
to sell drugs to feed her addiction, the trial court pointed out that she stopped
using drugs when she was pregnant, which undercut her claim that she had to
sell drugs because she was an addict. Id. at 68. Accordingly, for Cause No. F4-
207, the trial court sentenced Bowling to ten years for Level 4 felony dealing in
a narcotic drug, enhanced by fourteen years for being a habitual offender, and a
concurrent sentence of five years for Level 5 felony dealing in a narcotic drug.
For Cause No. F6-178, the court sentenced Bowling to two years for Level 6
felony possession of a hypodermic syringe. The court ordered the sentences in
the two cause numbers to be served consecutively.
[7] Bowling now appeals her sentence.
Discussion and Decision [8] Bowling contends that her aggregate sentence of twenty-six years
is inappropriate and asks us to reduce it “to the advisory sentence on each
Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2134 | February 16, 2018 Page 4 of 8 charge, enhanced by the minimum habitual offender enhancement on the
dealing conviction.” Appellant’s Br. p. 12. Pursuant to Indiana Appellate Rule
7(B), an appellate 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.” Because we generally defer to the judgment of trial courts in
sentencing matters, Norris v. State, 27 N.E.3d 333, 335-36 (Ind. Ct. App. 2015),
defendants have the burden of persuading us that their sentences
are inappropriate, Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014).
“Whether a sentence is inappropriate ultimately turns on the culpability of the
defendant, the severity of the crime, the damage done to others, and a myriad
of other factors that come to light in a given case.” Id. (citing Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008)).
[9] Here, in the two cause numbers, Bowling pled guilty to a Level 4 felony, a
Level 5 felony, and a Level 6 felony, and she admitted that she was a habitual
offender. A person who commits a Level 4 felony shall be imprisoned for a
fixed term of between two and twelve years, with an advisory sentence of six
years. Ind. Code § 35-50-2-5.5. A person who commits a Level 5 felony shall
be imprisoned for a fixed term of between one and six years, with an advisory
sentence of three years. Ind. Code § 35-50-2-6. A person who commits a Level
6 felony shall be imprisoned for a fixed term of between six months and two-
and-a-half years, with an advisory sentence of one year. Ind. Code § 35-50-2-7.
Finally, the court shall sentence a person found to be a habitual offender “to an
Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2134 | February 16, 2018 Page 5 of 8 additional fixed term that is between . . . six (6) years and twenty (20) years, for
a person convicted of murder or a Level 1 through Level 4 felony.” Ind. Code §
35-50-2-8(i). In Cause No. F4-207, the trial court sentenced Bowling to ten
years for the Level 4 felony, enhanced by fourteen years for being a habitual
offender, and a concurrent sentence of five years for the Level 5 felony. In
Cause No. F6-178, the trial court sentenced Bowling to two years for the Level
6 felony. The court ordered the sentences in the two cause numbers to be
served consecutively. The sentences for the Level 4 and Level 5 felonies in
Cause No. F4-207 were required to be served concurrently because they were
nearly identical State-sponsored buys, see Walton v. State, 81 N.E.3d 679, 683
(Ind. Ct. App. 2017), and, as Bowling acknowledges on appeal, the sentences in
the two cause numbers were required to be served consecutively because
Bowling was on bond when she committed the offense in F6-178, see Ind. Code
§ 35-50-1-2(e)(2). Accordingly, Bowling faced a sentencing range of eight-and-
a-half years to thirty-four-and-a-half years. The trial court sentenced her to
twenty-six years.
[10] There is nothing extraordinary about the nature of the offenses in the two cause
numbers. Bowling twice sold drugs to a confidential informant and possessed a
[11] Bowling’s criminal history and failed attempts at rehabilitation, however,
support her sentence. Bowling had recently been released from the DOC and
was on probation when she sold drugs to a confidential informant. Then, while
Bowling was out on bond for the dealing offenses, she twice tested positive for
Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2134 | February 16, 2018 Page 6 of 8 drugs—violating the conditions of her bond—and committed a new offense,
possession of a hypodermic syringe. She did these things although claiming to
be the main provider for her children. As the trial court observed at sentencing,
“I don’t think that you care whether or not you use or whether or not you deal.
I think that dealing may have helped feed your habit but I don’t [think] that
that’s the only reason you were dealing.” Tr. Vol. II p. 69. In short, Bowling
has not taken prison time, probation, or bond seriously and continues to live
her life using and dealing drugs despite the consequences to her and her
children.
[12] Bowling claims that this case is like Schaaf v. State, 54 N.E.3d 1041 (Ind. Ct.
App. 2016), where we found that the defendant’s forty-year sentence for two
counts of dealing in heroin to a confidential informant was inappropriate and
revised it to thirty years. This case is distinguishable from Schaaf on many
grounds, including that this case involves a habitual-offender enhancement that
accounts for the majority of Bowling’s twenty-six-year sentence. Bowling has
failed to persuade us that her twenty-six-year sentence is inappropriate.
[13] However, we agree with Bowling that this case needs to be remanded because
the trial court entered a separate, consecutive sentence for her habitual-offender
status instead of attaching the enhancement to her ten-year sentence for Level 4
felony dealing in a narcotic drug. See Appellant’s App. Vol. II pp. 73, 76.
Indiana Code section 35-50-2-8(j) provides:
Habitual offender is a status that results in an enhanced sentence. It is not a separate crime and does not result in a consecutive
Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2134 | February 16, 2018 Page 7 of 8 sentence. The court shall attach the habitual offender enhancement to the felony conviction with the highest sentence imposed and specify which felony count is being enhanced.
Therefore, we remand this case to the trial court with instructions to correct the
sentencing order, the abstract of judgment, and the CCS in Cause No. F4-207
to reflect that Bowling’s fourteen-year habitual-offender enhancement is
attached to her ten-year sentence for Level 4 felony dealing in a narcotic drug.
[14] Affirmed and remanded.
May, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2134 | February 16, 2018 Page 8 of 8