MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 12 2018, 6:10 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Stacy Demaree, April 12, 2018 Appellant-Defendant, Court of Appeals Case No. 15A04-1710-CR-2335 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Jonathan N. Appellee-Plaintiff. Cleary, Judge Trial Court Cause Nos. 15D01-1610-F6-363 15D01-1611-F6-403
Mathias, Judge.
[1] Stacy Demaree (“Demaree”) pleaded guilty to Level 6 felony possession of
heroin in Dearborn Superior Court. She also admitted that the offense was a
Court of Appeals of Indiana | Memorandum Decision 15A04-1710-CR-2335 | April 12, 2018 Page 1 of 9 probation violation. Sentencing was left to the discretion of the trial court, and
Demaree received a two and one-half year sentence executed in the Department
of Correction (“DOC”) with one and one-half year suspended to probation. The
court also revoked her 870-day, previously suspended sentence. Demaree now
appeals and argues that her sentence is inappropriate in light of the nature of the
offense and the character of the offender and that the trial court abused its
discretion when it revoked her suspended sentence.
[2] We affirm.
Facts and Procedural History [3] Demaree has a tortured history of heroin addiction and abuse. In 2009, she was
convicted of dealing heroin and received an eight-year sentence with six years
suspended to probation. Demaree then violated her probation, and it was
revoked. She was required to serve four years of her sentence. The trial court
offered Demaree the opportunity to participate in the CLIFF program in the
DOC, but she decided not to because, in her words, “I had been clean for two
years and I thought I was okay.” Tr. p. 26.
[4] In 2015, soon after her release, Demaree traveled to Cincinnati to get drugs
and crossed the border into Kentucky where she did heroin in her car while her
seven-month old son was in the vehicle. She was arrested in Boone County,
Kentucky and received five years of reporting probation. Demaree subsequently
failed a drug screen—for heroin—and an active warrant was issued for her
arrest.
Court of Appeals of Indiana | Memorandum Decision 15A04-1710-CR-2335 | April 12, 2018 Page 2 of 9 [5] On October 11, 2016, Demaree was at work in Dearborn County, Indiana
when the Kentucky warrant was served. She had heroin on her at the time, and
she was arrested. Demaree pleaded guilty to Level 6 felony possession at her
initial hearing on the charge, and on October 25, she was sentenced to 910 days
with 870 days suspended to probation. Four days later, Demaree was released
from the DOC to the hospital to receive medical treatment for complications
arising from pregnancy.1 While in the hospital, Demaree received her personal
property which included heroin in her wallet. She did the heroin, nodded out,
and the nurses found her and called the police.
[6] On November 10, the State charged Demaree with Level 6 felony possession
and filed to revoke her probation. On April 20, 2017, she pleaded guilty to the
probation violation and the new offense. At sentencing on September 7, the trial
court revoked the 870 days of her suspended sentence, and she was ordered to
serve two and one-half years with one and one-half year suspended to probation
and one year executed in the DOC for the new offense. The two sentences were
to run concurrently.
[7] Demaree now appeals her sentence and the trial court’s revocation of her
probation.
1 Demaree was eighteen weeks pregnant at the time. Appellant’s App. Vol. 3, p. 9. And the child was subsequently born in February 2017 addicted to methadone. Tr. p. 29.
Court of Appeals of Indiana | Memorandum Decision 15A04-1710-CR-2335 | April 12, 2018 Page 3 of 9 I. Appropriateness of Sentence
[8] Demaree first argues that the one year executed sentence by the trial court for
Level 6 felony possession is inappropriate. Specifically, Demaree contends that
her sentence is inappropriate because she desperately needs drug treatment and
not incarceration. See Appellant’s Br. at 14–16.
[9] Indiana Appellate Rule 7(B) provides that “[t]he Court 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.” In conducting our review, “[w]e do not look
to determine if the sentence was appropriate; instead we look to make sure the
sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.
2012). “[S]entencing 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). Thus, 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 a
perceived ‘correct’ result in each case.” Id. at 1225. It is Demaree’s burden on
appeal to establish that her sentence is inappropriate. Grimes v. State, 84 N.E.3d
635, 645 (Ind. Ct. App. 2017), trans. denied.
[10] When considering the nature of the offense, we observe that “the advisory
sentence is the starting point the Legislature selected as appropriate for the
crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The Court of Appeals of Indiana | Memorandum Decision 15A04-1710-CR-2335 | April 12, 2018 Page 4 of 9 advisory sentence for a Level 6 felony is one year, with a sentencing range of six
months to two and one-half years. Ind. Code § 35-50-2-7(b). Thus, Demaree
was ordered to serve the advisory sentence.
[11] Concerning the nature of the offense, the trial court allowed Demaree to receive
medical treatment relating to her pregnancy while incarcerated. At the hospital,
she was given her purse, which still contained heroin in her wallet. She
proceeded to use the heroin in the hospital room at the time she was receiving
medical treatment for her unborn child. The nature of the offense here does not
warrant revision of Demaree’s sentence.
[12] Regarding Demaree’s character, she has a lengthy criminal history, she has
violated probation on several occasions, and she has failed to take advantage of
numerous opportunities she has been provided in effort to help get and remain
sober. We acknowledge that Demaree “is a victim in the growing opiate
epidemic.” Appellant’s Br. at 15. However, she has had opportunities for
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 12 2018, 6:10 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Stacy Demaree, April 12, 2018 Appellant-Defendant, Court of Appeals Case No. 15A04-1710-CR-2335 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Jonathan N. Appellee-Plaintiff. Cleary, Judge Trial Court Cause Nos. 15D01-1610-F6-363 15D01-1611-F6-403
Mathias, Judge.
[1] Stacy Demaree (“Demaree”) pleaded guilty to Level 6 felony possession of
heroin in Dearborn Superior Court. She also admitted that the offense was a
Court of Appeals of Indiana | Memorandum Decision 15A04-1710-CR-2335 | April 12, 2018 Page 1 of 9 probation violation. Sentencing was left to the discretion of the trial court, and
Demaree received a two and one-half year sentence executed in the Department
of Correction (“DOC”) with one and one-half year suspended to probation. The
court also revoked her 870-day, previously suspended sentence. Demaree now
appeals and argues that her sentence is inappropriate in light of the nature of the
offense and the character of the offender and that the trial court abused its
discretion when it revoked her suspended sentence.
[2] We affirm.
Facts and Procedural History [3] Demaree has a tortured history of heroin addiction and abuse. In 2009, she was
convicted of dealing heroin and received an eight-year sentence with six years
suspended to probation. Demaree then violated her probation, and it was
revoked. She was required to serve four years of her sentence. The trial court
offered Demaree the opportunity to participate in the CLIFF program in the
DOC, but she decided not to because, in her words, “I had been clean for two
years and I thought I was okay.” Tr. p. 26.
[4] In 2015, soon after her release, Demaree traveled to Cincinnati to get drugs
and crossed the border into Kentucky where she did heroin in her car while her
seven-month old son was in the vehicle. She was arrested in Boone County,
Kentucky and received five years of reporting probation. Demaree subsequently
failed a drug screen—for heroin—and an active warrant was issued for her
arrest.
Court of Appeals of Indiana | Memorandum Decision 15A04-1710-CR-2335 | April 12, 2018 Page 2 of 9 [5] On October 11, 2016, Demaree was at work in Dearborn County, Indiana
when the Kentucky warrant was served. She had heroin on her at the time, and
she was arrested. Demaree pleaded guilty to Level 6 felony possession at her
initial hearing on the charge, and on October 25, she was sentenced to 910 days
with 870 days suspended to probation. Four days later, Demaree was released
from the DOC to the hospital to receive medical treatment for complications
arising from pregnancy.1 While in the hospital, Demaree received her personal
property which included heroin in her wallet. She did the heroin, nodded out,
and the nurses found her and called the police.
[6] On November 10, the State charged Demaree with Level 6 felony possession
and filed to revoke her probation. On April 20, 2017, she pleaded guilty to the
probation violation and the new offense. At sentencing on September 7, the trial
court revoked the 870 days of her suspended sentence, and she was ordered to
serve two and one-half years with one and one-half year suspended to probation
and one year executed in the DOC for the new offense. The two sentences were
to run concurrently.
[7] Demaree now appeals her sentence and the trial court’s revocation of her
probation.
1 Demaree was eighteen weeks pregnant at the time. Appellant’s App. Vol. 3, p. 9. And the child was subsequently born in February 2017 addicted to methadone. Tr. p. 29.
Court of Appeals of Indiana | Memorandum Decision 15A04-1710-CR-2335 | April 12, 2018 Page 3 of 9 I. Appropriateness of Sentence
[8] Demaree first argues that the one year executed sentence by the trial court for
Level 6 felony possession is inappropriate. Specifically, Demaree contends that
her sentence is inappropriate because she desperately needs drug treatment and
not incarceration. See Appellant’s Br. at 14–16.
[9] Indiana Appellate Rule 7(B) provides that “[t]he Court 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.” In conducting our review, “[w]e do not look
to determine if the sentence was appropriate; instead we look to make sure the
sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.
2012). “[S]entencing 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). Thus, 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 a
perceived ‘correct’ result in each case.” Id. at 1225. It is Demaree’s burden on
appeal to establish that her sentence is inappropriate. Grimes v. State, 84 N.E.3d
635, 645 (Ind. Ct. App. 2017), trans. denied.
[10] When considering the nature of the offense, we observe that “the advisory
sentence is the starting point the Legislature selected as appropriate for the
crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The Court of Appeals of Indiana | Memorandum Decision 15A04-1710-CR-2335 | April 12, 2018 Page 4 of 9 advisory sentence for a Level 6 felony is one year, with a sentencing range of six
months to two and one-half years. Ind. Code § 35-50-2-7(b). Thus, Demaree
was ordered to serve the advisory sentence.
[11] Concerning the nature of the offense, the trial court allowed Demaree to receive
medical treatment relating to her pregnancy while incarcerated. At the hospital,
she was given her purse, which still contained heroin in her wallet. She
proceeded to use the heroin in the hospital room at the time she was receiving
medical treatment for her unborn child. The nature of the offense here does not
warrant revision of Demaree’s sentence.
[12] Regarding Demaree’s character, she has a lengthy criminal history, she has
violated probation on several occasions, and she has failed to take advantage of
numerous opportunities she has been provided in effort to help get and remain
sober. We acknowledge that Demaree “is a victim in the growing opiate
epidemic.” Appellant’s Br. at 15. However, she has had opportunities for
treatment, and to this point, they have unfortunately all proven unsuccessful.
[13] In 2016, she sought treatment on her own in Battlecreek, Michigan. She
completed it but acknowledged that she did not benefit from it nor was she
ready for it. Tr. p. 18. She was placed in WRAP House in Covington,
Kentucky, but she was pregnant at the time and was medically discharged after
only two days of treatment. She attempted to receive treatment at the Recovery
Center in South Bend, but they did not accept her because she was not
“medically stable enough.” Id. at 19. Demaree was provided the opportunity to
Court of Appeals of Indiana | Memorandum Decision 15A04-1710-CR-2335 | April 12, 2018 Page 5 of 9 participate in the CLIFF program in the DOC, but she decided not to because
she had been clean for two years and thought she was okay. Id. at 25–26. She
was also given the opportunity to take part in JCAP,2 but she overslept for one
of the sessions and was removed from the program. Moreover, Demaree was
offered participation in both the AA and NA programs to no avail.
[14] Demaree has been provided several opportunities to take part in treatment
programs to help with her addiction. However, she continues to use heroin
regularly. And most concerning, she has used it around her children and while
pregnant. We hope that for her sake, and for the sake of her three children, that
after her release, she will take rehabilitation seriously and “be able to reenter the
world as a productive member of society.” Appellant’s Br. at 16. However, we
cannot say that the trial court’s decision to impose a one-year executed sentence
here is an “outlier” that should be reversed under our constitutional authority to
review and revise sentences. Caraway v. State, 977 N.E.2d 469, 473 (Ind. Ct.
App. 2012), trans. denied.
II. Probation Sentence
[15] Demaree also argues that the trial court abused its discretion when it ordered
her to serve the 870 days of her previously suspended sentence. Demaree does
not deny that she violated the terms of her probation; to the contrary, she
admitted to having done so. She claims only that the trial court abused its
2 The JCAP program is a ninety-day in-patient treatment program offered inside the jail. Tr. p. 9.
Court of Appeals of Indiana | Memorandum Decision 15A04-1710-CR-2335 | April 12, 2018 Page 6 of 9 discretion in ordering the execution of the entirety of the suspended sentence
because: (1) the nature of the violation was minor; (2) she readily admitted to
the violation; and (3) her medical condition warrants mitigation. Appellant’s
Br. at 12.3 We disagree.
[16] Upon a finding of a probation violation, a trial court may impose one or more
of the following sanctions:
(1) Continue the person on probation, with or without modifying or enlarging the conditions. (2) Extend the person’s probationary period for not more than one (1) year beyond the original probationary period. (3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.
Ind. Code § 35-38-2-3(h).
[17] A defendant is not entitled to serve a sentence in a probation program; rather,
such placement is a matter of grace and a conditional liberty that is a favor, not
a right. Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind. Ct. App. 2006). We
review the trial court’s sentencing decisions on probation violations for an
abuse of discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). An abuse
of discretion occurs where the decision is clearly against the logic and effect of
3 To the extent Demaree relies on our court’s decision in Johnson v. State, 62 N.E.3d 1224 (Ind. Ct. App. 2016), as support for her argument that the trial court abused its discretion when it ordered execution of her suspended sentence, we note that the defendant in Johnson did not commit a new criminal offense, he had limited cognitive ability, and he had succeeded in alternative placement before. Id. at 1231.
Court of Appeals of Indiana | Memorandum Decision 15A04-1710-CR-2335 | April 12, 2018 Page 7 of 9 the facts and circumstances before the court. Id. The trial court should be given
considerable leeway in deciding how to proceed following the revocation of
probation. Id. Consequently, so long as proper procedures have been followed,
the trial court may order execution of a suspended sentence after revoking
probation. Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct. App. 1999); see also
I.C. § 35-38-2-3(h).
[18] Here, Demaree committed a new criminal offense just four days after receiving
a sentence with 870 days suspended to probation. And this is not Demaree’s
first probation violation. She has violated probation several times over the
years, including four times in one case before it was ultimately revoked.
Demaree argues that she “had significant physical and mental health conditions
that impaired her ability to complete probation and did not warrant a complete
revocation of her sentence.” Appellant’s Br. at 14. However, this undermines
the seriousness of Demaree’s offense. Moreover, she acknowledged during her
sentencing hearing that she was afforded several opportunities to receive
treatment for her addiction:
[State]: Ms. Demaree it seems like you’ve had the benefit of a lot of treatment facilities, would you agree? I mean you’ve had the WRAP House. You were only there for a couple of days. You were discharged from South Bend. You couldn’t make it through the -- the program for medical discharge. You were supposed to attend the one in prison but you ended up getting work release and you didn’t do AA or NA after your conviction in Ripley County because
Court of Appeals of Indiana | Memorandum Decision 15A04-1710-CR-2335 | April 12, 2018 Page 8 of 9 you didn’t think you had a problem, and yet today this is what you’re asking the Court for?
[Demaree]: Yes.
[State]: And you were also terminated from JCAP?
Tr. pp. 31–32.
[19] Instead of taking advantage of numerous opportunities, Demaree failed to
undergo meaningful treatment and committed the very same act that resulted in
being placed on probation in the first place—possessing and using heroin. The
trial court was well within its discretion to order Demaree to serve the 870-day
balance of her previously suspended sentence.
Conclusion [20] Based on the facts and circumstances before us, we conclude that Demaree has
not met her burden of persuading us that her sentence is inappropriate in light
of the nature of the offense and the character of the offender. Further, the trial
court did not abuse its discretion when it ordered Demaree to serve the 870
days of her previously suspended sentence. Accordingly, we affirm.
Najam, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 15A04-1710-CR-2335 | April 12, 2018 Page 9 of 9