Lisa M. Morehouse v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 7, 2016
• Docket: 79A02-1604-CR-868
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 07 2016, 10:02 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brian A. Karle Gregory F. Zoeller Ball Eggleston, PC Attorney General of Indiana Lafayette, Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Lisa M. Morehouse, November 7, 2016 Appellant-Defendant, Court of Appeals Case No. 79A02-1604-CR-868 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Steven P. Meyer, Judge Trial Court Cause No. 79D02-1508-F3-11

Kirsch, Judge.

[1] After Lisa M. Morehouse (“Morehouse”) pleaded guilty to Level 5 felony

criminal confinement resulting in bodily injury, Level 6 felony criminal

Court of Appeals of Indiana | Memorandum Decision 79A02-1604-CR-868 | November 7, 2016 Page 1 of 10 recklessness while armed with a deadly weapon, and Level 6 felony

strangulation, the trial court sentenced her to an aggregate term of seven years,

with six years executed in the Indiana Department of Correction (“DOC”) and

one year suspended to supervised probation. Morehouse appeals, asserting that

her sentence is inappropriate.

[2] We affirm.

Facts and Procedural History [3] On August 20, 2015, Morehouse was an inmate at Tippecanoe County Jail

(“the Jail”), and at that time, L.M. (“Nurse”) was a correctional nurse at the

Jail. Nurse was distributing medication to inmates, and when she opened the

door to Morehouse’s cell, Morehouse threw a cup of water in Nurse’s face, put

her left arm around Nurse’s neck, placing her in a headlock, and held a pencil

to the right side of Nurse’s neck. Tr. at 11-12; Appellant’s App. at 11. Nurse felt

pain, had trouble breathing, and felt in fear for her life. Correctional officers

who were nearby heard Nurse yell for help, and they saw the incident and

intervened. Nurse experienced pain from the incident, and thereafter, she

sought a medical evaluation. Redness and abrasions to Morehouse’s neck and

head were noted, and Morehouse was diagnosed with “thoracic strain and

cervical pain.” Appellant’s App. at 11.

[4] On August 26, 2015, the State charged Morehouse with: Count I, criminal

confinement while armed with a deadly weapon as a Level 3 felony for

confining Nurse while holding a pencil close to her neck; Count II, criminal

Court of Appeals of Indiana | Memorandum Decision 79A02-1604-CR-868 | November 7, 2016 Page 2 of 10 recklessness while armed with a deadly weapon as a Level 6 felony; Count III,

strangulation as a Level 6 felony; Count IV, battery resulting in bodily injury as

a Class A misdemeanor; and Count V, being an habitual offender. Id. at 6-10.

[5] In March 2016, Morehouse and the State entered into a negotiated plea

agreement wherein Morehouse pleaded guilty but mentally ill to an amended

Count I, in which the criminal confinement charge was reduced from a Level 3

to a Level 5 felony. Id. at 35-36. She also pleaded guilty but mentally ill to

Counts II and III, and the State dismissed the remaining charges, battery and

being an habitual offender. Id.

[6] At the sentencing hearing, Nurse testified and described that she was

“traumatized” by the incident with Morehouse on August 20 and that she

feared for her life that day. Tr. at 12. Nurse expressed that she now lives in

“constant fear,” has “trouble trusting people,” and experiences flashbacks to

being strangled and unable to breathe. Id. at 13. Morehouse made a statement

at sentencing, apologizing to Nurse and expressing remorse for her actions that

day. Morehouse also stated that she needed mental treatment and asked the

trial court “not to [] put me away in prison where I won’t get help[.]” Id. at 15.

[7] Counsel for both parties presented argument to the trial court regarding

sentencing. Morehouse’s attorney asked the trial court to recognize that

Morehouse has “a long history of mental illness,” which “played a substantial

role in the events that occurred that day,” and he further observed that

Morehouse also “struggle[s] with substance abuse addiction,” noting that, over

Court of Appeals of Indiana | Memorandum Decision 79A02-1604-CR-868 | November 7, 2016 Page 3 of 10 the past five years or so, Morehouse went through periods of relative stability to

“chaotic instability,” including the time in question. Id. at 16. The State

recognized Morehouse’s mental illness, but maintained that guilty but mentally

ill “is not an excuse and [] not necessarily a mitigating circumstance,” but

rather, “if she went into [DOC], [it] might get her treatment for mental illness.” 1

Id. at 21. The State reminded the trial court that Morehouse committed this

offense while she was incarcerated in connection with another offense and that

she has a criminal history that includes five convictions of battery on police

officers. Id.

[8] At the sentencing hearing, the trial court discussed the existence of various

aggravators, including “significant” misdemeanor and felony convictions,

violations of probation, violations of pre-trial release, and violations of

community corrections. Id. at 28. The trial court stated to Morehouse, “You

are a danger to others and, specifically[,] to law enforcement. You fight with

them and you get physical with them. You place them in danger.” Id. With

regard to Morehouse’s mental illness, the trial court observed, “I do recognize

that people do suffer from mental illness and it’s a serious, serious issue with

you. But you’ve got to be willing to get help and you’ve got to be willing to

deal with it and stay on top of it every day of your life.” Id. at 29-30.

1 While a defendant who is guilty but mentally ill is sentenced “in the same manner as a defendant found guilty of the offense,” Indiana Code section 35-36-2-5(a), such defendant shall, however, “be further evaluated and then treated in such a manner as is psychiatrically indicated for the defendant’s mental illness.” Ind. Code § 35-36-2-5(c).

Court of Appeals of Indiana | Memorandum Decision 79A02-1604-CR-868 | November 7, 2016 Page 4 of 10 [9] In its written sentencing statement, the trial court identified the following as

aggravating factors:

[T]he offense happened while Defendant was incarcerated; the crimes were committed against a Nurse acting in the capacity of her employment at the Tippecanoe County Jail; the impact the crimes had on the [victim]; the Defendant’s extensive criminal history; her violation of probation; her violation of pre-trial release; the repetitive nature of the offenses against Public Safety Officials; and proper attempts at rehabilitation have been unsuccessful.

Appellant’s App. at 40. The trial court found that Morehouse’s mental illness2

and her expression of remorse were mitigating factors. Id.

[10] The trial court sentenced Morehouse as follows: Count I, six years of

incarceration in the DOC; Count II, one year in the DOC, suspended to

probation; and Count III, one year in the DOC, suspended to probation. Count

II was ordered to be served consecutive to Count I, and Counts II and III were

ordered concurrent with each other, for an aggregate sentence of seven years,

with one year suspended to probation. Id. at 40-41, 44. Morehouse now

appeals.

2 The psychological evaluation report of forensic psychologist Jeffrey Wendt, Ph.D. (“Dr. Wendt”), contained in the pre-sentence investigation report, reflected that Morehouse “has a well documented history of severe mental illness” and that she suffers from Bipolar I Disorder, severe with psychotic features, and “[h]er condition is complicated by secondary diagnoses of anxiety disorders and borderline personality traits that are exacerbated by chronic alcohol use and periodic drug abuse.” Appellant’s App. at 100. Dr. Wendt concluded that Morehouse’s condition during the time of the offenses was the result of both mental illness and residual effects of voluntary intoxication. Id. at 101.

Court of Appeals of Indiana | Memorandum Decision 79A02-1604-CR-868 | November 7, 2016 Page 5 of 10 Discussion and Decision [11] Morehouse claims that her seven-year sentence is inappropriate, arguing that it

was the maximum possible and that she is “not one of the worst of the worst

offenders deserving of a maximum sentence,” particularly given her history of

mental illness and her exhibited remorse for her conduct. Appellant’s Br. at 6;

Reply Br. at 5.

[12] “This court has authority to revise a sentence ‘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.’” Delao v. State, 940

N.E.2d 849, 853 (Ind. Ct. App. 2011) (quoting Ind. Appellate Rule 7(B)), trans.

denied. A defendant bears the burden of showing that both prongs of the inquiry

favor revision of his or her sentence. Anderson v. State, 989 N.E.2d 823, 827

(Ind. Ct. App. 2013), trans. denied. We understand and recognize the unique

perspective a trial court brings to its sentencing decisions. Rutherford v. State,

866 N.E.2d 867, 873 (Ind. Ct. App. 2007). The trial court’s judgment “should

receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

2008). A defendant must persuade the appellate court that his or her sentence is

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

[13] Regarding the nature of the offense, the advisory sentence is the starting point

the Legislature has selected as an appropriate sentence for the crime committed.

Id. at 1081. Morehouse pleaded guilty but mentally ill to Level 5 felony

criminal confinement resulting in bodily injury, Level 6 felony criminal

Court of Appeals of Indiana | Memorandum Decision 79A02-1604-CR-868 | November 7, 2016 Page 6 of 10 recklessness while armed with a deadly weapon, and Level 6 felony

strangulation. Appellant’s App. 3, 35-38. A Level 5 felony conviction carries a

sentence of one to six years, with a three-year advisory sentence. Ind. Code §

35-50-2-6(b). A Level 6 felony conviction carries a sentence of six months to

three years with an advisory sentence of one and one-half years. Ind. Code §

35-50-2-7(a). Here, the trial court sentenced Morehouse to six years on the

convictions for amended Count I and a consecutive one year on the conviction

for Count II. The sentence for Count II ran concurrent with the one year

sentence on Count III, and the convictions for both Counts II and III were

suspended to supervised probation. On appeal, Morehouse claims that the

seven-year sentence, which was the maximum possible in this case,3 was

inappropriate.

[14] Concerning the nature of the offense, Morehouse contends that the seven-year

sentence, in this case a maximum, was not warranted because “[Morehouse’s]

actions were not committed with malice or motivated by greed; rather, her

actions were likely the product of a mental illness over which Morehouse had

no control[,]” and, further, Nurse “suffered only a temporary injury and [] the

confinement lasted only a few moments[.]” Appellant’s Br. at 8-9. With regard

to the proposition that Morehouse “had no control” over her mental illness, we

disagree. The record reflects that Morehouse had a long and documented

3 The parties agreed that the offenses arose form a single episode of criminal conduct, and because the most serious crime for which Morehouse was sentenced was a Level 5 felony, the total sentence could not exceed seven years under Indiana Code section 35-50-1-2(d)(2). Tr. at 23-24, 29.

Court of Appeals of Indiana | Memorandum Decision 79A02-1604-CR-868 | November 7, 2016 Page 7 of 10 history of mental illness, requiring psychotropic medications and individual and

group therapy, and that she was able to “maintain relative stability when

compliant with treatment,” but she had a history of at times “inconsistent

attendance and participation in treatment.” Appellant’s App. at 101. The record

also indicates that her “chronic alcohol use and periodic drug use” also

contributed to her conduct in this case. Id. at 100. The trial court recognized

Morehouse’s mental illness, but reminded her, “you’ve got to be willing to get

help and you’ve got to be willing to deal with it and stay on top of it every day

of your life.” Tr. at 29-30.

[15] With respect to Morehouse’s claims regarding the “few moments” of

confinement and resulting “temporary” injury, Nurse testified at the sentencing

hearing that Morehouse attacked her while she was distributing medications.

Appellant’s Br. at 8-9. Morehouse pushed the door open and grabbed Nurse by

the neck, putting her in a headlock and causing her to have trouble breathing.

Morehouse also held a pencil to Nurse’s neck in a manner indicating she was

going to stab Nurse with it. Nurse testified that she feared she was going to die

when Morehouse grabbed her by the neck, and she described the continuing

negative impact that the incident has had on her daily life, explaining that she is

in “constant fear,” has an inability to trust people, and experiences flashbacks.

Tr. at 13. She characterized the impact as “a lifetime sentence” that she must

live with. Id. The trial court at the sentencing hearing expressed its view

regarding the nature of the offense:

Court of Appeals of Indiana | Memorandum Decision 79A02-1604-CR-868 | November 7, 2016 Page 8 of 10 Based on your record and everything else I see here and the offense that occurred and the seriousness and the way it was carried out[,] I think you’d be looking at a lot more than seven years. I’d reject this plea agreement, but for the mental illness.

Id. at 29 (emphasis added). Morehouse has failed to establish that the nature of

the offense supports a revision of her sentence.

[16] Regarding the character of the defendant, Morehouse has a criminal history

that includes four convictions for battery on a law enforcement officer, one

conviction for battery against a public official, two additional batteries, resisting

law enforcement, and at least eight alcohol-related offenses such as public

intoxication and operating a motor vehicle while intoxicated; she has faced

fifteen petitions to revoke probation. Tr. at 27-28; Appellant’s App. at 58-66.

Morehouse committed the current offenses while she was on probation for a

prior offense and while being released on bond for another. Her criminal

record, spanning over twenty-five years, reveals a disrespect for authority.

Morehouse has failed to show that her character favors a revision of her

sentence.

[17] On appeal, Morehouse argues that her mental illness and her genuine

expressions of remorse render the sentence inappropriate. However, this is

effectively an argument that those mitigators – which the trial court expressly

recognized – were deserving of more weight, and it is well-settled that “[t]he

relative weight given to aggravating and mitigating factors is not subject to

review.” Webb v. State, 941 N.E.2d 1082, 1088 (Ind. Ct. App. 2011), trans.

Court of Appeals of Indiana | Memorandum Decision 79A02-1604-CR-868 | November 7, 2016 Page 9 of 10 denied; see also Flickner v. State, 908 N.E.2d 270, 273 (Ind. Ct. App. 2009) (trial

court not required to give same weight to proffered mitigators as does

defendant).

[18] The question before us is not whether another sentence is more appropriate;

instead, the question is whether the sentence imposed is inappropriate. Marley

v. State, 17 N.E.3d 335, 339 (Ind. Ct. App. 2014), trans. denied. We cannot say

that the trial court’s imposition of an aggregate seven-year sentence, with one

year suspended to supervised probation, was inappropriate. See Hines v. State,

30 N.E.3d 1216, 1225-26 (Ind. 2015) (defendant’s maximum eight-year

sentence for Class C felony criminal confinement for attack on correctional

officer was not inappropriate).

[19] Affirmed.

May, J., and Crone, J., concur.

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