Shandaleigha M. Tharp v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: January 11, 2012
• Docket: 48A05-1105-CR-292
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JOHN T. WILSON GREGORY F. ZOELLER Anderson, Indiana Attorney General of Indiana

MONIKA PREKOPA TALBOT Deputy Attorney General Indianapolis, Indiana FILED Jan 11 2012, 9:20 am

IN THE CLERK COURT OF APPEALS OF INDIANA of the supreme court, court of appeals and tax court

SHANDALEIGHA M. THARP, ) ) Appellant-Defendant, ) ) vs. ) No. 48A05-1105-CR-292 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MADISON SUPERIOR COURT The Honorable Thomas Newman, Jr., Judge Cause Nos. 48D03-1108-FC-371, 48D03-1003-FC-118, 48D03-1008-FD-372 and 48D03-1008-FB-358

January 11, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge STATEMENT OF THE CASE

Shandaleigha Tharp appeals her sentence following her convictions for burglary,

as a Class B felony; two counts of forgery, Class C felonies; fraud on a financial

institution, a Class C felony; receiving stolen property, as a Class C felony; and two

counts of theft, as Class D felonies; pursuant to a guilty plea. Tharp presents two issues

for our review:

1. Whether she was denied her right to due process when she was terminated from the Drug Court program without a hearing.

2. Whether her sentence is inappropriate in light of the nature of the offenses and her character.

We affirm in part, reverse in part, and remand with instructions.

FACTS AND PROCEDURAL HISTORY

On September 13, 2010, Tharp pleaded guilty as charged in cause numbers

48D03-1108-FC-371 (“FC-371”), 48D03-1003-FC-118 (“FC-118”), 48D03-1008-FD-

372 (“FD-372”), and 48D03-1008-FB-358 (“FB-358”). In FC-371, the State charged

Tharp with forgery and receiving stolen property after she had used a credit card she and

her brother had found lying on the ground. In FC-118, the State charged Tharp with

forgery and fraud on a financial institution after she cashed two checks she had stolen

from a relative suffering from Alzheimer’s. In FD-372, the State charged Tharp with

theft after she stole $240 and a credit card from a neighbor. And in FB-358, the State

charged Tharp with burglary and theft after she and her brother broke into Rhonda

Mullins’ apartment and stole money, jewelry, and electronics. Each of these crimes

occurred over the course of a seven-month period from January 4 to August 3, 2010.

2 In the plea agreement, which the trial court accepted, the State agreed that Tharp’s

sentence

shall be deferred and the Defendant evaluated for placement in the Madison County Drug Court program. If the Defendant successfully completes Drug Court, the sentence will be open to the Court but the Defendant shall receive a suspended sentence. If the Defendant is referred back to the Court without graduating from Drug Court, the sentence shall be open to the Court.

Appellant’s App. at 132. Upon entering the Drug Court program, on September 22,

2010, Tharp signed an Agreement whereby she expressly acknowledged that she had a

minimum of twelve months and a maximum of thirty-six months to complete the

program. Tharp “absconded” from the Drug Court program on December 22, and her

participation was terminated without notice or a hearing. Id. at 6.

At sentencing, Tharp admitted that she did not complete the Drug Court program

“[b]ecause it just got too hard[.]” Transcript at 18. And she acknowledged that because

of her failure to complete the program, the trial court had discretion to sentence her. At

the conclusion of the hearing, the trial court sentenced Tharp as follows: five years for

forgery, a Class C felony, and three years for receiving stolen property, as a Class C

felony, to run concurrently (FC-371); five years for forgery, a Class C felony, and five

years for fraud on a financial institution, to run concurrently (FC-118); two years for

theft, as a Class D felony (FD-372); and fifteen years for burglary, as a Class B felony,

and two years for theft, as a Class D felony, to run concurrently (FB-358). Finally, the

trial court ordered that the sentences in each cause would run consecutively, for an

aggregate term of twenty-seven years, all executed. This appeal ensued.

3 DISCUSSION AND DECISION

Issue One: Due Process

Tharp first contends that she was denied her right to due process when her

participation in the Drug Court program was terminated without any notice or a hearing.

For support, she cites this court’s opinion in Gosha v. State, 931 N.E.2d 432 (Ind. Ct.

App. 2010). In Gosha, we held that a participant in a Drug Court program is entitled to

due process, including an evidentiary hearing, with written notice of the claimed

violations, disclosure of the evidence against him, an opportunity to be heard and to

present evidence, and the right to confront and cross-examine witnesses. Id. at 435. And,

following Gosha, our legislature has codified these rights in Indiana Code Section 33-23-

16-14.5.

But it is well settled that a federal constitutional error is harmless if it is clear

beyond a reasonable doubt that it did not affect the judgment. Pope v. State, 853 N.E.2d

970, 973 (Ind. Ct. App. 2006). In Pope, we held that the defendant was entitled to notice

of an alleged violation and a hearing before her termination from a Community

Corrections program. And we further held that the denial of those requirements of due

process was not harmless error. The State had alleged that the defendant had violated the

terms of the program when she failed a drug screen and that any violation of her due

process rights was harmless because a hearing was eventually held. But we observed that

“Pope was impeded in her defense” in that she “sought an independent drug test promptly

after being informed of the allegations against her.” Id. at 973. However,

because she received no notice of these allegations and was summarily returned to jail, Pope was unable to get an independent drug screen until 4 several weeks later. Obviously, the delay reduced the probative value of the drug screen, since the fact finder could conclude that the drugs had passed from her system naturally by the time the independent drug screen was conducted. Under these circumstances, we cannot say that the error was harmless beyond a reasonable doubt.

Id.

In contrast to the defendant in Pope, Tharp does not make any argument that she

would have presented evidence or asserted any defense to the allegation that she

absconded from the Drug Court program in violation of her agreement. And Tharp does

not deny that her conduct warranted her removal from the program. At the sentencing

hearing, Tharp admitted that she absconded from the Drug Court program. She offered

no excuse, but stated that it was “too hard.” Transcript at 18. Indeed, Tharp’s testimony

indicated no desire to resume participation in the Drug Court program.

While she was clearly entitled to notice of the violation and an evidentiary

hearing, Tharp makes no argument that reversing and remanding for such a hearing

would be beneficial to her in any way, other than to delay her sentencing. Tharp declared

that she absconded from the Drug Court program because “it just got too hard and I

couldn’t mentally do it, let alone physically do it.” Id. Tharp went further to explain that

it “got even harder” when “[they] started making me talk about my life[.]” Id. Rather

than asking the court that she be readmitted to the program, Tharp stated that she

understood that she would be sentenced and merely asked the sentencing court to order

“house arrest or something.” Id. at 20. We hold that it is clear beyond a reasonable

doubt that the denial of Tharp’s right to an evidentiary hearing and the other elements of

due process did not affect the trial court’s determination that she violated the terms of the

5 Drug Court program when she abandoned it, that her participation in the program should

be terminated, and that she should be sentenced. In sum, because the outcome would not

have been any different, the error was harmless.

Issue Two: Sentence

Tharp next contends that her sentence is inappropriate in light of the nature of the

offenses and her character. Although a trial court may have acted within its lawful

discretion in determining a sentence, Article VII, Sections 4 and 6 of the Indiana

Constitution “authorize [ ] independent appellate review and revision of a sentence

imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007)

(alteration original). This appellate authority is implemented through Indiana Appellate

Rule 7(B). Id. Revision of a sentence under Appellate Rule 7(B) requires the appellant

to demonstrate that her sentence is inappropriate in light of the nature of her offenses and

her character. See App. R. 7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App.

2007). We assess the trial court’s recognition or non-recognition of aggravators and

mitigators as an initial guide to determining whether the sentence imposed was

inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a

defendant must persuade the appellate court that his or her sentence has met th[e]

inappropriateness standard of review.” Roush, 875 N.E.2d at 812 (alteration original).

The Indiana Supreme Court more recently stated that “sentencing is principally a

discretionary function in which the trial court’s judgment should receive considerable

deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). Indiana’s flexible

sentencing scheme allows trial courts to tailor an appropriate sentence to the

6 circumstances presented. See id. at 1224. The principal role of appellate review is to

attempt to “leaven the outliers.” Id. at 1225. Whether we regard a sentence as

inappropriate at the end of the day turns on “our sense of the culpability of the defendant,

the severity of the crime, the damage done to others, and myriad other facts that come to

light in a given case.” Id. at 1224.

Here, each of the crimes committed by Tharp was non-violent. There is no

indication that Tharp was armed during any of the crimes, and she did not threaten the

use of violence against any of the victims. Indiana Code Section 35-38-1-7.1 provides in

relevant part that the trial court may consider as mitigating the fact that the offense

neither caused nor threatened serious harm to persons or property. We hold that the

nature of the offenses does not support the imposition of the twenty-seven-year aggregate

sentence.

Next, we consider Tharp’s character. She was twenty-one and twenty-two years

old at the time of the offenses, and she had no criminal history. While she was out on

bond for the offenses in FC-118 at the time she committed the other offenses, which is an

aggravating circumstance, her lack of criminal history is significant.1 Tharp has admitted

to serious drug abuse, and she was unable to complete the Drug Court program. But she

accepted responsibility for her crimes when she pleaded guilty as charged in September

1 The presentence investigation report shows that Tharp was charged with a curfew violation and battery as a juvenile, but that those charges were dismissed. Tharp was also charged with three minor traffic violations as an adult, but those charges were dismissed as well.

7 2010, a short time after the State filed informations in three of the four cause numbers.2

We conclude that the nature of Tharp’s character does not support her sentence.

It is well established that the fact of multiple victims or crimes—and here, there

were both—constitutes a valid aggravating factor that a trial court may consider in

imposing consecutive sentences. O’Connell v. State, 742 N.E.2d 943, 952 (Ind. 2001).

That rule is especially strong when, as here, the defendant committed separate crimes

against separate victims. Id. But we conclude that the lack of violence or threatened

violence by Tharp, coupled with her lack of criminal history and a prompt guilty plea, are

mitigators that offset the aggravators and warrant a revision of her sentence. See, e.g.,

Kemp v. State, 887 N.E.2d 102, 106 (Ind. Ct. App. 2008) (revising sentence from an

aggregate thirty-two year sentence to an aggregate sentence of sixteen years for multiple

counts of forgery and theft), trans. denied.

The Probation Department recommended that the trial court impose a total

aggregate sentence of nineteen and a half years, with fourteen and a half years executed

and five years suspended to probation. The Probation Department arrived at that

sentence by recommending the imposition of concurrent, advisory sentences for each

offense, with the sentences for each separate cause to run consecutively.3 We hold that

that sentence is appropriate in light of the nature of the offenses and Tharp’s character.

We hereby vacate Tharp’s aggregate twenty-seven-year sentence and impose sentence as

follows: in FC-118, four years on each count, to run concurrently; in FC-371, four years

2 The State filed those informations in August 2010. 3 FC-118: four years on each count, concurrent; FC-371: four years on the C felony, eighteen months on the D felony, concurrent, and consecutive to FC-118; FD-372: eighteen months, consecutive to FC-371; FB-358: ten years, with five years executed on the B felony, eighteen months on the D felony, concurrent, and consecutive to FD-372. 8 on the C felony and eighteen months on the D felony, to run concurrently, but

consecutive to the sentence in FC-118; in FD-372, eighteen months, consecutive to the

sentence in FC-371; in FB-358, ten years, with five years executed on the B felony and

eighteen months on the D felony, to run concurrently, and consecutive to FD-372. Thus,

the aggregate sentence is nineteen and a half years, with fourteen and a half years

executed and five years suspended.

Affirmed in part, reversed in part, and remanded with instructions.

ROBB, C.J., concurs.

VAIDIK, J., dissents with separate opinion.

9 IN THE COURT OF APPEALS OF INDIANA

SHANDALEIGHA M. THARP, ) ) Appellant, ) ) vs. ) No. 48A05-1105-CR-292 ) STATE OF INDIANA, ) ) Appellee. ) )

VAIDIK, Judge, dissenting.

I respectfully dissent from the majority’s decision that the constitutional error is

harmless in this case. I agree with my colleagues that Gosha controls and that there are

certain due process rights that every individual in the Drug Court program is afforded.

However, I do not agree that the denial of these due process rights, particularly the denial

of the right to an evidentiary hearing at which the State must prove the allegations,

amounts to harmless error.

In Gosha, this Court determined that the due process rights for an individual in a

Drug Court program were the same as those for an individual on probation: “‘written

notice of the claimed violations, disclosure of the evidence against him, an opportunity to

be heard and present evidence, the right to confront and cross-examine witnesses, and a

neutral and detached hearing body . . . .’” Gosha v. State, 931 N.E.2d 432, 435 (Ind. Ct. 10 App. 2010) (quoting Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999)). Since Gosha, the

legislature has enacted Indiana Code section 33-23-16-14.5, which articulates the specific

due process rights afforded to individuals accused of violating a condition of a problem-

solving court program. Fundamental among these rights are the right to be heard, to

confront and cross-examine witnesses, and to have the State prove the violations by a

preponderance of the evidence.

Due process for probation also requires a two-step process before probation

revocation can occur: (1) determination of whether a violation has occurred by a

preponderance of the evidence and (2) determination of the appropriate sanctions. Cox v.

State, 850 N.E.2d 485, 488 (Ind. Ct. App. 2006). Following the holding in Gosha, Tharp

should also be afforded the due process rights of this two-step process. However, in this

case, the first step in the process never took place; there was no evidentiary hearing at

which the State was required to prove that Tharp violated the conditions of her Drug

Court program by a preponderance of the evidence. The only hearing that Tharp was

afforded was one to determine what the appropriate sanctions were in this case, in direct

violation of her due process rights.

Of course, just as a person who pleads guilty to the underlying crime can

voluntarily waive her right to a trial, so too can an individual accused of violating a term

of her Drug Court program waive her right to an evidentiary hearing. However, Tharp

neither voluntarily waived her right to a hearing, nor had a hearing on the merits of the

allegations. She never was advised of her rights nor did she admit to the charges. While

it is true that Tharp admitted to absconding from the Drug Court program, she did so at

11 what the trial court designated as a sentencing hearing. Put differently, at the time she

admitted to the violations, her guilt was fait accompli.

Tharp was denied her fundamental right to be heard and present evidence on the

alleged violations and to have the State prove the allegations by a preponderance of the

evidence. I am not prepared to say that denying an individual the fundamental right of an

evidentiary hearing amounts to harmless error. Admittedly the evidence was

overwhelming that Tharp had violated the conditions of her Drug Court program, but the

evidence primarily came from her as she threw herself on the mercy of the court at

sentencing. Even if that were not the case, she has a right to a hearing to determine her

guilt before sentencing takes place.

Although certain irregularities in due process rights may be harmless, see Pope v.

State, 853 N.E.2d 970, 973 (Ind. Ct. App. 2006),4 I cannot say absent a voluntary waiver

of a right to an evidentiary hearing that not having that hearing can ever be harmless

error. For this reason I respectfully dissent and would vacate Tharp’s sentence and

remand to the Drug Court for further proceedings.

4 Notably, Pope did have a trial to determine her guilt prior to sentencing. 12