Lisa Livingston v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 4, 2018
• Docket: 18A-CR-716
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 04 2018, 9:27 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stacy R. Uliana Curtis T. Hill, Jr. Bargersville, Indiana Attorney General of Indiana Jennifer H. Culotta Laura R. Anderson New Albany, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Lisa Livingston, October 4, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-716 v. Appeal from the Orange Circuit Court State of Indiana, The Honorable Steven L. Owen, Appellee-Plaintiff. Judge Trial Court Cause No. 59C01-1308-FA-546

Mathias, Judge.

[1] Lisa Livingston (“Livingston”) presents two issues on appeal from the Orange

Circuit Court, which we restate as: (1) whether the trial court abused its

Court of Appeals of Indiana | Memorandum Decision 18A-CR-716 | October 4, 2018 Page 1 of 13 discretion in its consideration of the mitigating and aggravating circumstances,

and (2) whether Livingston’s sentence is appropriate in light of the nature of the

offense and the character of the offender.

[2] We affirm.

Facts and Procedural History [3] On August 6, 2013, police officers were investigating a theft when they received

information that Livingston had been manufacturing and dealing

methamphetamine out of her home. Based on this information, police sought

and received a search warrant for Livingston’s residence. During the execution

of the warrant, Livingston confessed to dealing and manufacturing

methamphetamine. She had manufactured to both sell and use. Livingston

informed police that her vehicle contained methamphetamine, cocaine, and a

lab. She also consented to police searching her vehicle.

[4] Police recovered eleven baggies totaling 5.6 grams of methamphetamine and

one baggie weighing 8.9 grams of cocaine. Police also recovered lithium

batteries, salt, coffee filters, cold pills, airline tubing, ice packs, lighter fluid, and

a pill grinder.

[5] Shortly thereafter, in August 2013, the State charged Livingston with two Class

A felonies: dealing in methamphetamine, and dealing in methamphetamine -

possession with intent to deliver; Class C felony of possession of

methamphetamine; and two Class D felonies: possession of cocaine and

possession of two or more chemical reagents or precursors with the intent to

Court of Appeals of Indiana | Memorandum Decision 18A-CR-716 | October 4, 2018 Page 2 of 13 manufacture a controlled substance. The State later alleged that Livingston was

a habitual substance offender.

[6] In November of 2013, Livingston posted a $75,000 property bond under the

condition that she reside at Bliss House, a substance abuse recovery home.

Livingston completed one year at the Bliss House and two years at its

transitional house.

[7] The trial in the instant matter was continued a total of ten times, each at

Livingston’s request. These continuances amounted to an approximate four-

year period between charging and an eventual guilty plea. In October of 2017,

Livingston pleaded guilty as charged and admitted she was a habitual offender

without plea agreement. The sentencing hearing took place in March of 2018.

[8] Between posting bond in November of 2013 and the sentencing hearing in

March of 2018, Livingston took several positive steps in her life. In 2014,

Livingston, along with her nephew, started a roofing and construction business.

At the time of sentencing, this business provided her with an annual income of

$80,000. In addition to managing this roofing business, in 2017, Livingston

used her own savings to open BreakAway Recovery Home for women

recovering from addiction. Livingston served as both the Executive Director

and the night manager of the BreakAway Home. At the time of sentencing, the

home housed fourteen women.

[9] In early 2017, Livingston petitioned the trial court for placement in a pre-trial

home detention program, which the trial court denied. In late February of 2017,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-716 | October 4, 2018 Page 3 of 13 Livingston voluntarily placed herself on home detention in neighboring Floyd

County. While on this voluntary home detention, Livingston tested negative for

every drug screen and reported her whereabouts to her case manager seven days

per week.

[10] The trial court determined Livingston’s guilty plea, her lack of further offenses,

her successful completion of drug treatment, her gainful employment, including

opening her own company, as well as her advocacy and support for drug

treatment, to be mitigating factors. The trial court found Livingston’s lengthy

criminal history and two prior violations of pre-trial release to be aggravating

factors.

[11] In March of 2018, after conducting a sentencing hearing, the trial court

sentenced Livingston to concurrent terms of twenty-five years executed in the

Department of Correction (“DOC”) on Count 1, twenty-five years executed on

Count 2, three years executed on Count 3, 365 days executed on Count 4, and

365 days executed on Count 5. The trial court enhanced this sentence by five

years because Livingston was adjudicated a habitual substance offender.

Livingston’s aggregate sentence of thirty years, including the enhancement for

the habitual substance offender, is the equivalent of the advisory sentence for a

single Class A felony.

Discussion and Decision [12] Livingston argues that the trial court abused its discretion in three ways. First,

she asserts that the trial court abused its discretion by failing to consider the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-716 | October 4, 2018 Page 4 of 13 women of BreakAway as “dependents” for the purposes of Indiana Code

section 35-38-1-7.1(b)(10). Second, Livingston argues that the trial court abused

its discretion by using her financial means and community support as a way to

minimize her accomplishments. Third, Livingston argues that the trial court

abused its discretion by not placing Livingston in Community Corrections.

Livingston also argues that the sentence imposed was inappropriate to the

nature of the crimes and the character of the defendant. We now turn to

Livingston’s abuse of discretion arguments.

I. Abuse of Discretion

[13] The trial court abuses its discretion only if its sentencing decision 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). A trial court abuses its

discretion by: (1) failing to enter a sentencing statement, (2) finding aggravating

or mitigating factors unsupported by the record, (3) omitting mitigating factors

clearly supported by the record and advanced for consideration, or (4) giving

reasons that are improper as a matter of law. Id. at 490–91.

[14] Livingston first asserts that the trial court abused its discretion by rejecting her

argument that the women of BreakAway are Livingston’s dependents and these

women will suffer an undue hardship due to her incarceration.

[15] We agree with the trial court and the State that the “dependent[s]”to which

Indiana Code section 35-38-1-7.1(b)(10) refers does not include the women

Court of Appeals of Indiana | Memorandum Decision 18A-CR-716 | October 4, 2018 Page 5 of 13 housed at BreakAway. The legislature did not provide a specific definition of

“dependent” as it is used in Indiana Code section 35-38-1-7.1(b)(10). Livingston

cites no precedent, and we can find no precedent, in which a community or

other personal non-familial relationship has been considered to be a dependent

for the purposes of sentencing.

[16] Livingston argues that, by allowing a trial court to consider matters not

specifically listed in Indiana Code section 35-38-1-7.1(b)(10), the legislature did

not intend to prohibit the trial court’s consideration of the effect that

Livingston’s incarceration would have on the women housed at BreakAway.

See Ind. Code § 35-38-1-7.1. Livingston’s argument is flawed because it assumes

that the trial court did not consider the effect her incarceration would have on

the recovery home. It does not follow that, because the trial court did not

consider these women to be Livingston’s dependents for the purposes of the

statute, the trial court completely disregarded the work Livingston did with the

home.

[17] In fact, the sentencing order in the instant matter specifically references that

Livingston became an advocate for drug treatment and opened up her own

treatment facility. The record shows that Livingston was the night manager and

the Executive Director. However, the record also shows that BreakAway has a

Board of Directors. Livingston was not the sole individual responsible for the

management of BreakAway. Even more, Livingston started this recovery home

knowing that she faced a significant sentence in this matter. For these reasons,

the trial court did not abuse its discretion by not considering the women of

Court of Appeals of Indiana | Memorandum Decision 18A-CR-716 | October 4, 2018 Page 6 of 13 BreakAway to be Livingston’s dependents for the purposes of Indiana Code

section 35-38-1-7.1(b)(10).

[18] Additionally, Livingston argues that the trial court abused its discretion by

referencing Livingston’s financial resources and notoriety within the

community during the sentencing hearing. Livingston focuses on two related

points: (1) the trial court erred by basing its decision on a “legally erroneous

comparison” of Livingston with other defendants; and (2) the trial court’s

reasoning is clearly against the effect of the facts and circumstances before it.

[19] Livingston asserts that the trial court abused its discretion by discounting the

numerous letters sent to the court on Livingston’s behalf by members of the

community. In their entirety, these letters emphasize Livingston’s positive

character and her recent accomplishments within the community.

[20] However, there is nothing in the record to support Livingston’s assertions that

the trial court discounted the letters. At the sentencing hearing, the trial court

explicitly stated that it read the letters. The accomplishments for which many of

the letters applaud Livingston were listed as mitigating circumstances in the

sentencing order. Showing that it considered the letters, the trial court stated

that it was not going to sentence Livingston based on a public opinion poll, nor

was it going to give her a break simply because she had more significant

Court of Appeals of Indiana | Memorandum Decision 18A-CR-716 | October 4, 2018 Page 7 of 13 financial resources than most offenders.1 In making these statements, the trial

court emphasized that it did not intend to treat Livingston differently than other

defendants. As the trial court certainly considered the facts and circumstances

of the matter at issue, we find neither legal error nor abuse of discretion.2

[21] Thirdly, Livingston argues that the trial court abused its discretion by declining

to place her on Community Corrections. Sentencing placements are not

reviewable for an abuse of discretion. King v. State, 894 N.E.2d 265, 267 (Ind.

Ct. App. 2008). This court addresses the argument in accordance with an

inappropriate sentence standard of review.

II. Inappropriate Sentence

[22] Indiana Appellate Rule 7(B) provides that the court on appeal “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.”

[23] Still, we must and should exercise deference to a trial court’s sentencing

decision because Rule 7(B) requires us to give “due consideration” to that

1 The record shows that Livingston posted a $75,000 property bond in this matter and that she had an annual income of $80,000 at the time of sentencing. 2 The trial court considered the mitigating and aggravating factors and determined these factors to cancel each other out. Contrary to Livingston’s assertions that the trial court disregarded her recent accomplishments, the trial court expressly stated that it gave great weight to the improvements Livingston made to her life while on bond. Livingston’s arguments that the trial court struck an improper balance of the mitigating and aggravating circumstances amounts to a request to this court to reweigh the evidence, which we cannot and will not do. Harrison v. State, 32 N.E.3d 240, 247 (Ind. Ct. App. 2015), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-716 | October 4, 2018 Page 8 of 13 decision and because we understand and recognize the unique perspective a

trial court brings to its sentencing decisions. Trainor v. State, 950 N.E.2d 352,

355 (Ind. Ct. App. 2011) (quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct.

App. 2007)), trans. denied. Although we have the power to review and revise

sentences, the principal role of appellate 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 what

we perceive to be a “correct” result in each case. Fernbach v. State, 954 N.E.2d

1080, 1089 (Ind. Ct. App. 2011) (quoting Cardwell v. State, 895 N.E.2d 1219,

1225 (Ind. 2008)), trans. denied. The appropriate question is not whether another

sentence is more appropriate; rather, the question is whether the sentence

imposed is inappropriate. Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App.

2007). Whether a sentence is appropriate “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, 895 N.E.2d at

1224. When considering the character of the offender, an individual’s criminal

history is relevant to the trial court’s determination. Rutherford v. State, 866

N.E.2d 867, 874 (Ind. Ct. App. 2007). It is the defendant’s burden on appeal to

persuade us that the sentence imposed by the trial court is inappropriate.

Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

[24] In the instant matter, the trial court imposed a thirty-year aggregate sentence for

five felony convictions, including two Class A felonies, a Class C felony, two

Class D felonies, and for being a habitual substance offender. Due to

Court of Appeals of Indiana | Memorandum Decision 18A-CR-716 | October 4, 2018 Page 9 of 13 Livingston’s criminal history and the offenses at issue in this matter, Livingston

was facing a minimum executed sentence of twenty-three years. See Ind. Code §

35-50-2-2(b)(1)3 (court may suspend only that part of the sentence that is in

excess of the minimum sentence if the crime committed was a Class A felony

and the person has a prior unrelated felony conviction); Ind. Code § 35-50-2-

10(f)4 (“[t]he court shall sentence a person found to be a habitual substance

offender to an additional fixed term of at least three (3) years but not more than

eight (8) years imprisonment”). She faced a maximum sentence of sixty-three

years. See Ind. Code § 35-50-1-2(c)5 (stating “the total of the consecutive terms

of imprisonment, exclusive of terms of imprisonment under IC 35-50-2-8 and

IC 35-50-2-10, to which the defendant is sentenced for felony convictions

arising out of an episode of criminal conduct shall not exceed the advisory

sentence for a felony for which is one (1) class of felony higher than the most

serious of the felonies for which the person has been convicted”).

[25] Livingston argues that her thirty-year sentence to the DOC is inappropriate in

light of the nature of the crime and the character of the defendant. In support of

this argument, Livingston relies heavily on the life changes she has made since

commission of the crimes at issue in the instant matter.

3 We note that this statute was repealed effective July 1, 2014. Because Livingston committed her crimes prior to that date, we apply the statute in effect at the time she committed the offense. 4 See supra note 3. 5 See supra note 3.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-716 | October 4, 2018 Page 10 of 13 [26] Indeed, Livingston made several commendable changes to her life since her

arrest in the instant matter. She and her nephew opened a roofing business.

This business provided her with significant income and employed five people in

addition to providing work for several subcontractors. The record showed that

Livingston had remained substance free. Livingston also became an advocate

for substance abuse treatment. She established and served as the Executive

Director and night manager of the BreakAway home, a home for women

recovering from drug addiction. She did not re-offend during this period and

entered into an open plea.

[27] However, Livingston has a lengthy criminal history including two

misdemeanor convictions and two felony convictions. Livingston was dealing

methamphetamine on a regular basis, and she was a habitual substance

offender. Livingston had twice violated her pre-trial release on prior offenses,

and she committed resisting law enforcement while on bond for possession of

cocaine. Livingston committed the offenses in the instant matter while she was

on bond for felony theft.

[28] Livingston pleaded guilty to serious drug offenses. She was manufacturing and

distributing significant amounts of methamphetamine at the time of her arrest.

The arresting officer testified that methamphetamine is incredibly dangerous, is

one of the most mind-altering drugs, and affects more parts of the brain than

other commonly used drugs. The arresting officer also testified that, in his

experience, methamphetamine use often leads to commission of other crimes,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-716 | October 4, 2018 Page 11 of 13 particularly theft, burglary, and robbery. He believed methamphetamine to be a

driving force behind crime in the community.

[29] Although Livingston’s recent accomplishments are commendable, in light of

her lengthy criminal history and prior violations while on pre-trial release, this

court does not find that the sentence in the instant matter is inappropriate.

[30] Livingston also challenges her placement at the DOC as inappropriate. The

location where a sentence is to be served is an appropriate focus for application

of a reviewing court’s review and revision authority. King, 894 N.E.2d at 267

(citing Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007)). As the question

under Appellate Rule 7(B) analysis is “not whether another sentence is more

appropriate” but rather “whether the sentence imposed is inappropriate,” it is

“quite difficult” for a defendant to prevail on a claim that his placement is

inappropriate. Id. at 267–68 (emphasis in original). “As a practical matter, trial

courts know the feasibility of alternative placements in particular counties or

communities.” Id. at 268. A defendant challenging the placement of a sentence

must convince us that the given placement is itself inappropriate. Id.

[31] In the instant case, Livingston expressly argues that she believes Community

Corrections to be the only appropriate placement. However, the record lacks

any argument or showing of why the DOC is an inappropriate location.

Moreover, at the sentencing hearing, the trial court showed it considered

Livingston’s request, explaining that it did not believe the Community

Corrections program to be appropriate for her length of sentence. Finding no

Court of Appeals of Indiana | Memorandum Decision 18A-CR-716 | October 4, 2018 Page 12 of 13 reason why the DOC is an inappropriate location for her sentence, we will not

disturb the location of Livingston’s sentence.

Conclusion [32] We cannot say that the trial court’s decision was against the logic and effect of

the facts and circumstances before the court. Accordingly, we find no abuse of

discretion. Finally, we are not persuaded that the sentence imposed by the trial

court is inappropriate.

[33] Affirmed.

Bailey, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-716 | October 4, 2018 Page 13 of 13