Natasha Peters v. State of Indiana (mem. dec.)

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 19 2016, 8:09 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 Jennifer L. Koethe Gregory F. Zoeller La Porte, Indiana Attorney General of Indiana

Ian McLean Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Natasha Peters, October 19, 2016 Appellant-Defendant, Court of Appeals Case No. 46A03-1602-CR-452 v. Appeal from the La Porte Superior Court State of Indiana, The Honorable Michael Bergerson, Appellee-Plaintiff. Judge Trial Court Cause No. 46D01-1506-F3-522

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 46A03-1602-CR-452 | October 19, 2016 Page 1 of 4 [1] Natasha Peters appeals the trial court’s twenty-year enhancement of her

sentence for being a habitual offender. She claims that the trial court abused its

discretion in its weighing of certain mitigating factors. Additionally, Peters asks

that we exercise our authority to review and revise her sentence to provide more

weight to those mitigating factors.

[2] We affirm.

Facts & Procedural History

[3] On June 25, 2015, the State charged Peters with robbery, a Level 3 felony.

Shortly after the State added a habitual offender allegation, Peters pled guilty as

charged. The plea agreement provided that Peters would receive ten years

executed for the robbery and the trial court would have discretion with regard

to the habitual offender enhancement. On January 28, 2016, the trial court

sentenced Peters to ten years for robbery, enhanced by twenty years for being a

habitual offender. The court ordered the entire sentence executed in the

“Indiana Department of Correction Therapeutic Community for chemically

addicted offenders”. Appendix at 52. The trial court indicated in its sentencing

order that Peters “shall have the right to file a Modification upon successful

completion of the Therapeutic Community Program, to serve the balance of

[her] sentence [in the] LaPorte County Community Correction Work Release

Program.” Id.

Discussion & Decision

Court of Appeals of Indiana | Memorandum Decision 46A03-1602-CR-452 | October 19, 2016 Page 2 of 4 [4] Initially, Peters argues that the trial court abused its discretion “in giving little

weight to the mitigating factors of [her] plea of guilty to the Habitual Offender

charge and the undue hardship on her family”.1 Appellant’s Brief at 8. This issue

is a nonstarter because we are proscribed from finding that a trial court abused

its discretion in the weighing of aggravating and mitigating factors. See

Anglemeyer v. State, 868 N.E.2d 482, 491 (Ind. 2007) (“Because the trial court no

longer has any obligation to ‘weigh’ aggravating and mitigating factors against

each other when imposing a sentence, unlike the pre-Blakely statutory regime, a

trial court can not now be said to have abused its discretion in failing to

‘properly weigh’ such factors.”), modified on reh’g, 875 N.E.2d 218 (Ind. 2007).

[5] Peters also asks that we exercise our authority under Ind. Appellate Rule 7(B)

to revise her sentence “to give her additional weight for the mitigating factors of

pleading guilty and the undue hardship that her lengthy incarceration will

impose on her family and child”. Appellant’s Brief at 11.

[6] Pursuant to App. R. 7(B), we may independently review and revise a sentence

“if, after due consideration of the trial court’s decision, [we find] that the

sentence is inappropriate in light of the nature of the offense and the character

of the offender.” Our review in this regard is “very deferential” to the trial

court. See Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “Such deference

should prevail unless overcome by compelling evidence portraying in a positive

1 The trial court found three mitigating factors in this case: Peters’s guilty plea, the undue hardship on her family, and her expression of remorse.

Court of Appeals of Indiana | Memorandum Decision 46A03-1602-CR-452 | October 19, 2016 Page 3 of 4 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). Peters bears the burden of persuading us that her sentence

is inappropriate. See Conley, 972 N.E.2d at 876.

[7] Peters makes no attempt to address the nature of the offense or her character.

In fact, her brief is entirely devoid of any mention of the facts underlying her

robbery conviction. And she does not discuss how her guilty plea or the

hardship on her family relate to the nature of the offense or her character.

Accordingly, she has waived this issue for our review. See Day v. State, 898

N.E.2d 471, 472 (Ind. Ct. App. 2008); see also Ford v. State, 718 N.E.2d 1104,

1107 n.1 (Ind. 1999).

[8] Judgment affirmed.

[9] Bradford, J. and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 46A03-1602-CR-452 | October 19, 2016 Page 4 of 4