MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any court except for the purpose of establishing Jun 22 2017, 5:39 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Stanley L. Campbell Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana
George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Lisa G. King, June 22, 2017 Appellant-Defendant, Court of Appeals Case No. 90A02-1610-CR-2469 v. Appeal from the Wells Circuit Court State of Indiana, The Honorable Kenton W. Appellee-Plaintiff. Kiracofe, Judge Trial Court Cause No. 90C01-1602-F4-6
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2469 | June 22, 2017 Page 1 of 8 Case Summary [1] Lisa King appeals her two-year sentence for one count of Level 6 felony
possession of methamphetamine. We affirm.
Issues [2] The issues before us are:
I. whether the trial court abused its discretion in sentencing King; and
II. whether her sentence is inappropriate.
Facts [3] On February 12, 2016, the State charged King with Level 4 felony dealing in
methamphetamine, Level 5 felony possession of chemical reagents or
precursors with intent to manufacture a controlled substance, Level 6 felony
theft of a firearm, and Level 6 felony unlawful possession or use of a legend
drug. The charges were based on the Bluffton Police Department’s discovery of
methamphetamine precursors, stolen firearms, and prescription medication in a
vehicle belonging to Daniel Zerbe, Sr. King was in a relationship with Zerbe,
Sr. at the time and empty prescription bottles belonging to her also were found
in the car. The bottles were found in a makeup bag, which also contained the
prescription drug methylprednisolone; this drug did not have any prescription
information with it. Additionally, there was information that King was seen in
or near the car on February 1, 2016, along with Zerbe, Sr. and his son, Daniel
Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2469 | June 22, 2017 Page 2 of 8 Zerbe, Jr., and all three were reported by a neighbor to be engaged in suspicious
behavior, such as shining flashlights in or around the car for about an hour.
King was arrested and incarcerated on March 16, 2016, and never bonded out
of jail.
[4] On August 17, 2016, King agreed to plead guilty to a new charge, Level 6
felony possession of methamphetamine, and the State dismissed the four
original charges. The plea contained no sentencing limit. King informed the
probation officer preparing the presentence investigation report that she had
been contacted by Zerbe, Sr., through Facebook1 while she was in a drug
treatment program in Tennessee and that he eventually convinced her to come
to Indiana with him to help Zerbe, Jr., get into drug addiction treatment.
Instead, by December 2015, Zerbe, Sr. was manufacturing methamphetamine,
and King was using it daily.
[5] On September 28, 2016, the trial court sentenced King to a term of two years
executed. The court said it was giving King “some weight” for her guilty plea
but that she had received a substantial benefit in the dismissal of the original
four charges. Tr. Vol. II p. 34. It also found that her criminal history
warranted an enhanced sentence. King now appeals.
1 King’s ex-husband is Zerbe, Sr.’s brother.
Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2469 | June 22, 2017 Page 3 of 8 Analysis I. Abuse of Discretion
[6] King first claims the trial court abused its discretion in sentencing her. An
abuse of discretion in identifying or not identifying aggravators and mitigators
occurs if it is “‘clearly against the logic and effect of the facts and circumstances
before the court, or the reasonable, probable, and actual deductions to be drawn
therefrom.’” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007) (quoting K.S.
v. State, 849 N.E.2d 538, 544 (Ind. 2006)). Additionally, an abuse of discretion
occurs if the record does not support the reasons given for imposing sentence,
or the sentencing statement omits reasons that are clearly supported by the
record and advanced for consideration, or the reasons given are improper as a
matter of law. Id. at 490-91.
[7] King argues that the trial court erred in discounting the mitigating weight of her
guilty plea based on the State’s dismissal of the original four charges. However,
the weight that the trial court decides to assign to an aggravator or mitigator is
not subject to appellate review. Id. at 491. King cannot establish an abuse of
discretion on this issue.
II. Appropriateness
[8] We now assess whether King’s sentence is inappropriate under Indiana
Appellate Rule 7(B) in light of her character and the nature of the offense. See
Anglemyer, 868 N.E.2d at 491. Although Rule 7(B) does not require us to be
“extremely” deferential to a trial court’s sentencing decision, we still must give
Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2469 | June 22, 2017 Page 4 of 8 due consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873
(Ind. Ct. App. 2007). We also understand and recognize the unique perspective
a trial court brings to its sentencing decisions. Id. “Additionally, a defendant
bears the burden of persuading the appellate court that his or her sentence is
inappropriate.” Id.
[9] The principal role of Rule 7(B) review “should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). We “should focus on the forest—the aggregate sentence—rather than
the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id. Whether a sentence is inappropriate
ultimately turns on 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. Id. at 1224. When reviewing the appropriateness of a sentence
under Rule 7(B), we may consider all aspects of the penal consequences
imposed by the trial court in sentencing the defendant, including whether a
portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,
1025 (Ind. 2010).
[10] The sentencing range for a Level 6 felony is six months to two-and-a-half years,
with the advisory sentence being one year. See Ind. Code § 35-50-2-7(b). Thus,
King’s sentence was at the upper level of the range. As to the nature of the
offense, King admitted to possessing an unspecified amount of
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any court except for the purpose of establishing Jun 22 2017, 5:39 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Stanley L. Campbell Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana
George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Lisa G. King, June 22, 2017 Appellant-Defendant, Court of Appeals Case No. 90A02-1610-CR-2469 v. Appeal from the Wells Circuit Court State of Indiana, The Honorable Kenton W. Appellee-Plaintiff. Kiracofe, Judge Trial Court Cause No. 90C01-1602-F4-6
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2469 | June 22, 2017 Page 1 of 8 Case Summary [1] Lisa King appeals her two-year sentence for one count of Level 6 felony
possession of methamphetamine. We affirm.
Issues [2] The issues before us are:
I. whether the trial court abused its discretion in sentencing King; and
II. whether her sentence is inappropriate.
Facts [3] On February 12, 2016, the State charged King with Level 4 felony dealing in
methamphetamine, Level 5 felony possession of chemical reagents or
precursors with intent to manufacture a controlled substance, Level 6 felony
theft of a firearm, and Level 6 felony unlawful possession or use of a legend
drug. The charges were based on the Bluffton Police Department’s discovery of
methamphetamine precursors, stolen firearms, and prescription medication in a
vehicle belonging to Daniel Zerbe, Sr. King was in a relationship with Zerbe,
Sr. at the time and empty prescription bottles belonging to her also were found
in the car. The bottles were found in a makeup bag, which also contained the
prescription drug methylprednisolone; this drug did not have any prescription
information with it. Additionally, there was information that King was seen in
or near the car on February 1, 2016, along with Zerbe, Sr. and his son, Daniel
Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2469 | June 22, 2017 Page 2 of 8 Zerbe, Jr., and all three were reported by a neighbor to be engaged in suspicious
behavior, such as shining flashlights in or around the car for about an hour.
King was arrested and incarcerated on March 16, 2016, and never bonded out
of jail.
[4] On August 17, 2016, King agreed to plead guilty to a new charge, Level 6
felony possession of methamphetamine, and the State dismissed the four
original charges. The plea contained no sentencing limit. King informed the
probation officer preparing the presentence investigation report that she had
been contacted by Zerbe, Sr., through Facebook1 while she was in a drug
treatment program in Tennessee and that he eventually convinced her to come
to Indiana with him to help Zerbe, Jr., get into drug addiction treatment.
Instead, by December 2015, Zerbe, Sr. was manufacturing methamphetamine,
and King was using it daily.
[5] On September 28, 2016, the trial court sentenced King to a term of two years
executed. The court said it was giving King “some weight” for her guilty plea
but that she had received a substantial benefit in the dismissal of the original
four charges. Tr. Vol. II p. 34. It also found that her criminal history
warranted an enhanced sentence. King now appeals.
1 King’s ex-husband is Zerbe, Sr.’s brother.
Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2469 | June 22, 2017 Page 3 of 8 Analysis I. Abuse of Discretion
[6] King first claims the trial court abused its discretion in sentencing her. An
abuse of discretion in identifying or not identifying aggravators and mitigators
occurs if it is “‘clearly against the logic and effect of the facts and circumstances
before the court, or the reasonable, probable, and actual deductions to be drawn
therefrom.’” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007) (quoting K.S.
v. State, 849 N.E.2d 538, 544 (Ind. 2006)). Additionally, an abuse of discretion
occurs if the record does not support the reasons given for imposing sentence,
or the sentencing statement omits reasons that are clearly supported by the
record and advanced for consideration, or the reasons given are improper as a
matter of law. Id. at 490-91.
[7] King argues that the trial court erred in discounting the mitigating weight of her
guilty plea based on the State’s dismissal of the original four charges. However,
the weight that the trial court decides to assign to an aggravator or mitigator is
not subject to appellate review. Id. at 491. King cannot establish an abuse of
discretion on this issue.
II. Appropriateness
[8] We now assess whether King’s sentence is inappropriate under Indiana
Appellate Rule 7(B) in light of her character and the nature of the offense. See
Anglemyer, 868 N.E.2d at 491. Although Rule 7(B) does not require us to be
“extremely” deferential to a trial court’s sentencing decision, we still must give
Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2469 | June 22, 2017 Page 4 of 8 due consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873
(Ind. Ct. App. 2007). We also understand and recognize the unique perspective
a trial court brings to its sentencing decisions. Id. “Additionally, a defendant
bears the burden of persuading the appellate court that his or her sentence is
inappropriate.” Id.
[9] The principal role of Rule 7(B) review “should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). We “should focus on the forest—the aggregate sentence—rather than
the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id. Whether a sentence is inappropriate
ultimately turns on 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. Id. at 1224. When reviewing the appropriateness of a sentence
under Rule 7(B), we may consider all aspects of the penal consequences
imposed by the trial court in sentencing the defendant, including whether a
portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,
1025 (Ind. 2010).
[10] The sentencing range for a Level 6 felony is six months to two-and-a-half years,
with the advisory sentence being one year. See Ind. Code § 35-50-2-7(b). Thus,
King’s sentence was at the upper level of the range. As to the nature of the
offense, King admitted to possessing an unspecified amount of
Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2469 | June 22, 2017 Page 5 of 8 methamphetamine. She had been using the drug regularly for several months,
and she has done so off and on for many years, having been in a rehabilitation
program before this latest relapse. King’s admitted offense fits an unfortunate
pattern often seen with this highly-addictive drug.
[11] Regarding the character of the offender, the most substantial disagreement
between the parties is the significance of her guilty plea as a reflection of good
character. Courts at any level must carefully assess the mitigating weight of a
guilty plea. Marlett v. State, 878 N.E.2d 860, 866 (Ind. Ct. App. 2007), trans.
denied. “One factor to consider in determining such weight is whether the
defendant substantially benefited from the plea because of the State’s dismissal
of charges in exchange for the plea.” Id. However, we agree with King that the
dismissal of charges does not automatically counteract the mitigating weight of
a guilty plea where the record is unclear that the State actually could have
garnered convictions on the dismissed charges. See id.
[12] Ultimately, based on the limited record before us, it is unclear that the State
could have obtained a conviction against King on any of the original charges it
brought against her, with the possible exception of illegally possessing a legend
drug (methylprednisolone), which is the same felony level as the crime to which
she pled guilty. King’s plea did not contain a cap on her possible sentence.
Thus, King delivered a substantial benefit to the State by pleading guilty and
did not receive much in return. This is not a case in which King’s guilty plea
appears merely to have been a “pragmatic decision.” Cf. Amalfitano v. State, 956
N.E.2d 208, 212 (Ind. Ct. App. 2011), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2469 | June 22, 2017 Page 6 of 8 [13] Still, we cannot conclude that King’s sentence is inappropriate. She has a
criminal history in Tennessee consisting of a 1997 conviction for misdemeanor
public intoxication and 2008 misdemeanor convictions for “simple possession,”
possession of a drug without a prescription, and possession of paraphernalia.
App. Vol. II p. 33. Thus, although King does not have a lengthy or particularly
serious criminal history, what she does have is closely related to the current
offense. King also admitted to frequent drug use in the months prior to the
current offense, as well as off-and-on substance use for many years. We
acknowledge the difficulties inherent with battling substance abuse. However,
King has tried various punitive and non-punitive roads to rehabilitation, and in
fact left her most recent rehabilitation attempt to move to Indiana and be with
Zerbe, Sr. and began receiving a steady supply of methamphetamine from his
manufacturing operation. King’s multiple prior attempts at rehabilitation, in
and out of the justice system, have been unsuccessful. Furthermore, King has
prior arrests for child neglect, domestic assault, resisting arrest, forgery, and
theft; at the time of sentencing, she also was facing a pending charge in Ohio for
tampering with evidence in a murder case involving Zerbe, Sr. Although not
technically constituting a criminal history, a defendant’s history of arrests, as
well as pending charges he or she is facing, may properly be considered when
evaluating a defendant’s character for sentencing purposes. See Tunstill v. State,
568 N.E.2d 539, 545 (Ind. 1991); Hape v. State, 903 N.E.2d 977, 1001 (Ind. Ct.
App. 2009), trans. denied. In sum, even if we give full credit to King for pleading
guilty, her criminal history, history of arrests, history of frequent drug usage
Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2469 | June 22, 2017 Page 7 of 8 that she has not been able to conquer, and pending charges lead us to conclude
that an enhanced sentence of two years is not inappropriate.
Conclusion [14] King’s abuse of discretion sentencing argument is not viable, and her sentence
of two years for Level 6 felony possession of methamphetamine is not
inappropriate. We affirm.
[15] Affirmed.
Baker, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2469 | June 22, 2017 Page 8 of 8