Paula S. Black v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 14, 2017
• Docket: 35A02-1705-CR-1173
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 14 2017, 9:28 am regarded as precedent or cited before any court except for the purpose of establishing CLERK 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 Jeremy K. Nix Curtis T. Hill, Jr. Huntington, Indiana Attorney General of Indiana

Laura R. Anderson Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Paula S. Black, December 14, 2017 Appellant-Defendant, Court of Appeals Case No. 35A02-1705-CR-1173 v. Appeal from the Huntington Superior Court State of Indiana, The Honorable Jennifer E. Appellee-Plaintiff. Newton, Judge Trial Court Cause No. 35D01-1610-F3-211

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 35A02-1705-CR-1173| December 14, 2017 Page 1 of 9 Case Summary [1] Paula Black appeals her sentence for Level 3 felony dealing in a schedule II

controlled substance and Level 4 felony dealing in a schedule II controlled

substance. We reverse and remand.

Issues [2] Black raises two issues, which we restate as:

I. whether the trial court abused its discretion when it sentenced her; and

II. whether her sentence is inappropriate.

Facts [3] On December 21, 2015, and January 18, 2016, Black sold methyphenidate

hydrochloride (Ritalin) in her home to a confidential informant. During the

January 18th incident, a six-year-old child that lived with Black walked through

the room during the transaction. Both transactions were videotaped. In October

2016, the State charged Black with Level 3 felony dealing in a schedule II

controlled substance for dealing methylphenidate in the presence of a child and

Level 4 felony dealing in a schedule II controlled substance for dealing

methylphenidate. As a term of pre-trial release, Black was placed on house arrest

through community corrections. On April 26, 2017, the State filed a petition to

revoke Black’s placement in community corrections because it alleged that she

was absent from her home at an unauthorized time.

Court of Appeals of Indiana | Memorandum Decision 35A02-1705-CR-1173| December 14, 2017 Page 2 of 9 [4] The State offered a plea agreement with a fixed sentence to Black, but she rejected

the agreement and pled guilty as charged without a plea agreement so that the

trial court could determine her sentence. The trial court sentenced Black to serve

fourteen years with five years suspended to probation on the Level 3 felony

conviction and eight years on the Level 4 felony conviction. The trial court

ordered the sentenced to be served concurrently. Black now appeals.

Analysis I. Abuse of Discretion

[5] Black argues that the trial court abused its discretion when it sentenced her.

Sentencing decisions are within the sound discretion of the trial court.

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

218. However, a trial court may be found to have abused its sentencing

discretion in a number of ways, including: (1) failing to enter a sentencing

statement at all; (2) entering a sentencing statement that explains reasons for

imposing a sentence where the record does not support the reasons; (3) entering

a sentencing statement that omits reasons that are clearly supported by the

record and advanced for consideration; and (4) entering a sentencing statement

in which the reasons given are improper as a matter of law. Id. at 490-91. The

reasons or omission of reasons given for choosing a sentence are reviewable on

appeal for an abuse of discretion. Id. at 491. The weight given to those reasons,

i.e. to particular aggravators or mitigators, is not subject to appellate review. Id.

Court of Appeals of Indiana | Memorandum Decision 35A02-1705-CR-1173| December 14, 2017 Page 3 of 9 [6] Black argues that the trial court improperly failed to identify her guilty plea,

remorse, and undue hardship upon a dependent as significant mitigating

circumstances. A trial court is not obligated to accept a defendant’s claim as to

what constitutes a mitigating circumstance. Rascoe v. State, 736 N.E.2d 246, 249

(Ind. 2000). A claim that the trial court failed to find a mitigating circumstance

requires the defendant to establish that the mitigating evidence is both

significant and clearly supported by the record. Anglemyer, 868 N.E.2d at 493.

[7] We first address whether the trial court abused its discretion by failing to

consider Black’s remorse as a mitigating factor. Our supreme court has held

that a trial court’s determination of a defendant’s remorse is similar to a

determination of credibility. Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002).

Without evidence of some impermissible consideration by the trial court, we

will accept its determination as to remorse. See id. Although Black expressed

remorse during the sentencing hearing, it was within the trial court’s discretion

to determine the credibility of that remorse. Our review of the evidence does

not demonstrate an impermissible consideration by the trial court, and we

cannot say that the trial court abused its discretion with respect to Black’s

remorse as a mitigating factor.

[8] Black also argues that the trial court should have considered undue hardship

upon a dependent as a significant mitigating circumstance. The evidence

showed that a six-year-old child had been living with Black since she was a

toddler. The child’s mother is incarcerated for selling drugs out of Black’s

home, and her father is a convicted sex offender. Black argues that she cared

Court of Appeals of Indiana | Memorandum Decision 35A02-1705-CR-1173| December 14, 2017 Page 4 of 9 for the child, but there was evidence presented at the sentencing hearing that

Black’s son, sister, and other friends often provided for the child and that the

child often cared for herself. The trial court commented on the situation and

noted that a six-year-old child “shouldn’t be taking care of themselves.” Tr. p.

105. Given this evidence, the trial court did not abuse its discretion when it did

not consider undue hardship on a dependent as a mitigating circumstance.

[9] We next address whether the trial court abused its discretion by failing to

identify her guilty plea as a mitigating circumstance. A guilty plea is not

necessarily a mitigating factor where the defendant receives substantial benefit

from the plea or where evidence against the defendant is so strong that the

decision to plead guilty is merely pragmatic. Amalfitano v. State, 956 N.E.2d

208, 212 (Ind. Ct. App. 2011), trans. denied. Here, Black’s offenses were

videotaped, and her guilty plea was merely pragmatic. The trial court did not

abuse its discretion.1

II. Inappropriate Sentence

[10] Black argues that her fourteen-year sentence is inappropriate under Indiana

Appellate Rule 7(B). Appellate Rule 7(B) provides that we may revise a

sentence authorized by statute if, after due consideration of the trial court’s

1 Even if the trial court erred by failing to consider Black’s guilty plea as a mitigator, when the trial court abuses its discretion in sentencing, “we have the option to remand to the trial court for a . . . new sentencing determination,” or “we may exercise our authority to review and revise the sentence” under Indiana Appellate Rule 7(B). Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007). We have determined in this case that Black’s sentence is inappropriate, and we revise it under Indiana Appellate Rule 7(B).

Court of Appeals of Indiana | Memorandum Decision 35A02-1705-CR-1173| December 14, 2017 Page 5 of 9 decision, we find that the sentence is inappropriate in light of the nature of the

offenses and the character of the offender. When considering whether a

sentence is inappropriate, we need not be “extremely” deferential to a trial

court’s sentencing decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.

App. 2007). Still, we must give due consideration to that decision. Id. We also

understand and recognize the unique perspective a trial court brings to its

sentencing decisions. Id. Under this rule, the burden is on the defendant to

persuade the appellate court that his or her sentence is inappropriate. Childress

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

[11] 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. 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).

[12] Black was convicted of a Level 3 felony and a Level 4 felony. The advisory

sentence for a Level 3 felony is nine years with a sentencing range of three to

sixteen years. The advisory sentence for a Level 4 felony is six years with a

Court of Appeals of Indiana | Memorandum Decision 35A02-1705-CR-1173| December 14, 2017 Page 6 of 9 sentencing range of two to twelve years. Here, the trial court sentenced Black

to fourteen years with five years suspended to probation for the Level 3 felony

concurrent with an eight-year sentence for the Level 4 felony. Black requests

that we reduce her sentence.

[13] The nature of the offense is that, on two occasions, Black sold methyphenidate

hydrochloride (Ritalin) in her home to a confidential informant. On one of the

occasions, a six-year-old child that lived with Black walked through the room

during the transaction.

[14] As for the character of the offender, forty-six-year-old Black has a minimal

criminal history. As a juvenile, Black had adjudications for battery and minor

in consumption of alcohol. As an adult, Black has several older misdemeanor

convictions, including a 1989 conviction for battery, a 1991 conviction for theft,

a 1991 conviction for conversion, and a 2006 conviction for false informing.

Black pled guilty as charged in this case. While Black was on pre-trial home

detention, she had a pass to be out of her home from 9:00 a.m. to 12:00 p.m. to

attend the funeral of a family member. However, she violated her pre-trial

detention because she was seen driving at 8:37 a.m. that morning. We also

acknowledge the police officer’s testimony at the sentencing hearing that the

police department had been hearing rumors for years of Black dealing

prescription drugs from her house. However, Black’s sentence in this case

cannot be based on mere rumors.

Court of Appeals of Indiana | Memorandum Decision 35A02-1705-CR-1173| December 14, 2017 Page 7 of 9 [15] We acknowledge that Black has severe health issues. After she was placed on

home detention and others were not allowed to visit her home, she arranged for

home health care assistance several days a week. She cannot cook, wash

dishes, shop for groceries and requires assistance bathing herself and using the

restroom. Prior to her arrest, Black’s adult son, sisters, and friends cared for

her. Six-year-old M.F. has lived with Black for the majority of M.F.’s life. She

lived with Black because M.F.’s mother is incarcerated for dealing drugs in

Black’s home in front of M.F. in early December 2015 and her father is a sex

offender.

[16] Although we cannot say the trial court abused its discretion by failing to find

Black’s proposed mitigating factors, given the circumstances here, including

Black’s guilty plea and relatively minor criminal history, we choose to exercise

our authority to revise Black’s sentence. Black had asked for the imposition of

the nine-year advisory sentence, and we find that sentence appropriate here.

We revise the sentence for Black’s Level 3 felony conviction to the advisory

sentence of nine years with four years suspended to probation. We revise the

sentence for the Level 4 felony conviction to the advisory sentence of six years

with one year suspended to probation. We order the sentences to be served

Court of Appeals of Indiana | Memorandum Decision 35A02-1705-CR-1173| December 14, 2017 Page 8 of 9 concurrently for an aggregate sentence of nine years with four years suspended

to probation.2

Conclusion [17] We conclude that, although the trial court did not abuse its discretion when it

sentenced Black, her fourteen-year sentence is inappropriate. Consequently, we

revise the sentence to an aggregate sentence of nine years with four years

suspended to probation. We reverse and remand.

[18] Reversed and remanded.

May, J., and Bradford, J., concur.

2 We also note that the concurrent sentences imposed here were required by Beno v. State, 581 N.E.2d 922, 924 (Ind. 1991), which required concurrent sentences where the defendant was convicted of “virtually identical crimes separated by only four days” as part of a “police sting operation” for dealing drugs.

Court of Appeals of Indiana | Memorandum Decision 35A02-1705-CR-1173| December 14, 2017 Page 9 of 9