MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jul 30 2015, 6:27 am 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 Chris Palmer Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tammie D. Wasson, July 30, 2015
Appellant-Defendant, Court of Appeals Case No. 70A04-1504-CR-139 v. Appeal from the Rush Superior Court State of Indiana, The Honorable Brian D. Hill, Judge Cause No. 70D01-1407-FA-383 Appellee-Plaintiff.
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 70A04-1504-CR-139 | July 30, 2015 Page 1 of 7 Statement of the Case [1] Appellant/Defendant, Tammie D. Wasson (“Wasson”), appeals her sentence
for her conviction of Class B felony dealing in a controlled substance.1 She asks
us to revise her sentence under Indiana Appellate Rule 7(B). However, we
conclude that Wasson’s sentence was not inappropriate in light of the nature of
her offense and character.
[2] We affirm.
Issue Whether Wasson’s sentence was inappropriate in light of the nature of her offense and her character.
Facts [3] On September 30, 2013, Wasson was cleaning her friend Susie Scheidler’s
(“Scheidler”) house, which she did twice a week, when her friend Erik Bussberg
(“Bussberg”) sent her a text message. He asked if she could get hydrocodone
pills for him from Scheidler, who was at home at the time. Bussberg was a
confidential informant working with the police. Wasson obtained ten pills
directly from Scheidler, took them outside of Scheidler’s house, sold them to
Bussberg for $50.00, and gave the proceeds to Scheidler. Wasson did not keep
1 IND. CODE § 35-48-4-2(a)(1)(C). This statute was amended effective July 1, 2014. However, since Wasson committed her offense in 2013, we will apply the version of the statute in effect at that time.
Court of Appeals of Indiana | Memorandum Decision 70A04-1504-CR-139 | July 30, 2015 Page 2 of 7 any of the money herself. Then, the “same thing” happened the next day. (Tr.
13).
[4] On July 7, 2014, the State charged Wasson with two counts of Class A felony
dealing in a schedule I, II, or III controlled substance. A few months later,
Wasson pled guilty, pursuant to a plea agreement, to a lesser-included charge of
Class B felony dealing in a controlled substance. In exchange, the State agreed
to dismiss the two Class A felony charges and to a sentencing cap of seven (7)
years in the Department of Correction (“DOC”). Otherwise, the parties agreed
to leave the length and terms of the sentence to the discretion of the trial court.
[5] On March 5, 2015, the trial court held a guilty plea hearing and accepted the
terms of Wasson’s plea agreement. At the hearing, Wasson acknowledged that
she had a prior 2004 felony conviction for obtaining a controlled substance by
fraud or deceit. The trial court found that Wasson’s prior conviction was an
aggravating factor and also noted that Wasson had continued to associate with
a known drug dealer after her conviction. It said:
Just along those lines, we can paint a picture of Mr. Bussberg, too, just based on my contacts with Mr. Bussberg on prior criminal cases. Everybody knows what Erik Bussberg does as far as controlled substances and drugs. And you have a prior conviction for that and then yet you continue to maintain a friendship with him and sell or deliver or whatever it is you do with pills on multiple occasions to him.
(Tr. 15-16). However, the court also found that the amount of time that had
passed since the conviction was a mitigating factor. At the conclusion of the
Court of Appeals of Indiana | Memorandum Decision 70A04-1504-CR-139 | July 30, 2015 Page 3 of 7 hearing, the trial court sentenced Wasson to seven (7) years, with four (4) years
to be executed at the DOC and three (3) years to be served in the Rush County
Community Corrections Home Detention Program. Wasson now appeals.
Decision [6] On appeal, Wasson asks us to revise her sentence under Indiana Appellate Rule
7(B) in light of the nature of her offense and her character. She argues that the
sentence was inappropriate in light of the nature of her offense because she only
“passed the pills along” and did not keep any of the money for herself.
(Wasson’s Br. 9). She also argues that she sold only $75 worth of hydrocodone
and that her crimes were not violent in nature.2 As for her character, Wasson
notes that she had only one prior criminal conviction, which occurred years
ago.
[7] Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 493 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (Ind. 2007). However, pursuant to Appellate Rule 7(B), a reviewing court
may revise a sentence if, “after due consideration of the trial court’s decision,”
it finds that the sentence is inappropriate in light of the nature of the offense and
the character of the offender. Childress v. State, 848 N.E.2d 1073, 1079-80 (Ind.
2 At the hearing, Wasson testified that she sold the hydrocodone for $50 on September 30, 2013 and that “the same thing” happened the next day. (Tr. 13). However, in her brief she states that the total amount she received for the pills was $75. It is possible she only received $25 for the pills as a result of her second sale, but that evidence is not a part of the record and is not dispositive here.
Court of Appeals of Indiana | Memorandum Decision 70A04-1504-CR-139 | July 30, 2015 Page 4 of 7 2006) (quoting App. R. 7(B)). Although this Court is not required to use “great
restraint,” we nevertheless exercise deference to a trial court’s sentencing
decision, both because Appellate Rule 7(b) requires that we give “due
consideration” to that decision and because we recognize the unique
perspective a trial court has when making decisions. Stewart v. State, 866
N.E.2d 858, 865-66 (Ind. Ct. App. 2007). 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.” Cardwell v.
State, 895 N.E.2d 1219, 1225 (Ind. 2008). In addition, the defendant bears the
burden of persuading this Court that her sentence is inappropriate. Childress,
848 N.E.2d at 1080.
[8] Under INDIANA CODE § 35-50-2-5(a), the sentencing range for a Class B felony
is between six (6) and twenty (20) years, with an advisory sentence of ten (10)
years. As Wasson was sentenced to seven (7) years, her sentence was close to
the minimum for a Class B felony.
[9] In support of her argument that the nature of her offense and her character
justify a reduction in sentence, Wasson cites to our recent case, Norris v. State,
27 N.E.3d 333 (Ind. Ct. App. 2015). There, Norris pled guilty to Class B felony
dealing in a controlled substance after he sold ten hydrocodone pills in
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jul 30 2015, 6:27 am 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 Chris Palmer Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tammie D. Wasson, July 30, 2015
Appellant-Defendant, Court of Appeals Case No. 70A04-1504-CR-139 v. Appeal from the Rush Superior Court State of Indiana, The Honorable Brian D. Hill, Judge Cause No. 70D01-1407-FA-383 Appellee-Plaintiff.
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 70A04-1504-CR-139 | July 30, 2015 Page 1 of 7 Statement of the Case [1] Appellant/Defendant, Tammie D. Wasson (“Wasson”), appeals her sentence
for her conviction of Class B felony dealing in a controlled substance.1 She asks
us to revise her sentence under Indiana Appellate Rule 7(B). However, we
conclude that Wasson’s sentence was not inappropriate in light of the nature of
her offense and character.
[2] We affirm.
Issue Whether Wasson’s sentence was inappropriate in light of the nature of her offense and her character.
Facts [3] On September 30, 2013, Wasson was cleaning her friend Susie Scheidler’s
(“Scheidler”) house, which she did twice a week, when her friend Erik Bussberg
(“Bussberg”) sent her a text message. He asked if she could get hydrocodone
pills for him from Scheidler, who was at home at the time. Bussberg was a
confidential informant working with the police. Wasson obtained ten pills
directly from Scheidler, took them outside of Scheidler’s house, sold them to
Bussberg for $50.00, and gave the proceeds to Scheidler. Wasson did not keep
1 IND. CODE § 35-48-4-2(a)(1)(C). This statute was amended effective July 1, 2014. However, since Wasson committed her offense in 2013, we will apply the version of the statute in effect at that time.
Court of Appeals of Indiana | Memorandum Decision 70A04-1504-CR-139 | July 30, 2015 Page 2 of 7 any of the money herself. Then, the “same thing” happened the next day. (Tr.
13).
[4] On July 7, 2014, the State charged Wasson with two counts of Class A felony
dealing in a schedule I, II, or III controlled substance. A few months later,
Wasson pled guilty, pursuant to a plea agreement, to a lesser-included charge of
Class B felony dealing in a controlled substance. In exchange, the State agreed
to dismiss the two Class A felony charges and to a sentencing cap of seven (7)
years in the Department of Correction (“DOC”). Otherwise, the parties agreed
to leave the length and terms of the sentence to the discretion of the trial court.
[5] On March 5, 2015, the trial court held a guilty plea hearing and accepted the
terms of Wasson’s plea agreement. At the hearing, Wasson acknowledged that
she had a prior 2004 felony conviction for obtaining a controlled substance by
fraud or deceit. The trial court found that Wasson’s prior conviction was an
aggravating factor and also noted that Wasson had continued to associate with
a known drug dealer after her conviction. It said:
Just along those lines, we can paint a picture of Mr. Bussberg, too, just based on my contacts with Mr. Bussberg on prior criminal cases. Everybody knows what Erik Bussberg does as far as controlled substances and drugs. And you have a prior conviction for that and then yet you continue to maintain a friendship with him and sell or deliver or whatever it is you do with pills on multiple occasions to him.
(Tr. 15-16). However, the court also found that the amount of time that had
passed since the conviction was a mitigating factor. At the conclusion of the
Court of Appeals of Indiana | Memorandum Decision 70A04-1504-CR-139 | July 30, 2015 Page 3 of 7 hearing, the trial court sentenced Wasson to seven (7) years, with four (4) years
to be executed at the DOC and three (3) years to be served in the Rush County
Community Corrections Home Detention Program. Wasson now appeals.
Decision [6] On appeal, Wasson asks us to revise her sentence under Indiana Appellate Rule
7(B) in light of the nature of her offense and her character. She argues that the
sentence was inappropriate in light of the nature of her offense because she only
“passed the pills along” and did not keep any of the money for herself.
(Wasson’s Br. 9). She also argues that she sold only $75 worth of hydrocodone
and that her crimes were not violent in nature.2 As for her character, Wasson
notes that she had only one prior criminal conviction, which occurred years
ago.
[7] Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 493 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (Ind. 2007). However, pursuant to Appellate Rule 7(B), a reviewing court
may revise a sentence if, “after due consideration of the trial court’s decision,”
it finds that the sentence is inappropriate in light of the nature of the offense and
the character of the offender. Childress v. State, 848 N.E.2d 1073, 1079-80 (Ind.
2 At the hearing, Wasson testified that she sold the hydrocodone for $50 on September 30, 2013 and that “the same thing” happened the next day. (Tr. 13). However, in her brief she states that the total amount she received for the pills was $75. It is possible she only received $25 for the pills as a result of her second sale, but that evidence is not a part of the record and is not dispositive here.
Court of Appeals of Indiana | Memorandum Decision 70A04-1504-CR-139 | July 30, 2015 Page 4 of 7 2006) (quoting App. R. 7(B)). Although this Court is not required to use “great
restraint,” we nevertheless exercise deference to a trial court’s sentencing
decision, both because Appellate Rule 7(b) requires that we give “due
consideration” to that decision and because we recognize the unique
perspective a trial court has when making decisions. Stewart v. State, 866
N.E.2d 858, 865-66 (Ind. Ct. App. 2007). 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.” Cardwell v.
State, 895 N.E.2d 1219, 1225 (Ind. 2008). In addition, the defendant bears the
burden of persuading this Court that her sentence is inappropriate. Childress,
848 N.E.2d at 1080.
[8] Under INDIANA CODE § 35-50-2-5(a), the sentencing range for a Class B felony
is between six (6) and twenty (20) years, with an advisory sentence of ten (10)
years. As Wasson was sentenced to seven (7) years, her sentence was close to
the minimum for a Class B felony.
[9] In support of her argument that the nature of her offense and her character
justify a reduction in sentence, Wasson cites to our recent case, Norris v. State,
27 N.E.3d 333 (Ind. Ct. App. 2015). There, Norris pled guilty to Class B felony
dealing in a controlled substance after he sold ten hydrocodone pills in
exchange for $60. Id. at 334. At his sentencing hearing, the trial court
sentenced him to twenty (20) years, the maximum for a Class B felony. Id. at
335. On appeal, this Court reduced Norris’s sentence under Appellate Rule
Court of Appeals of Indiana | Memorandum Decision 70A04-1504-CR-139 | July 30, 2015 Page 5 of 7 7(B), noting that even though Norris had four prior convictions, the nature of
his offense did not support the maximum sentence. Id. at 336. We remanded
the case to the trial court with instructions for the trial court to impose a
sentence of twelve (12) years, with eight (8) years executed in the DOC and
four years suspended to probation. Id. Because the amount of pills exchanged
in Norris is similar to the instant case, Wasson argues that we should also
reduce her sentence.
[10] However, unlike in Norris, Wasson was not sentenced to the maximum possible
number of years allowed for a Class B felony. See id. at 335. She was sentenced
to only seven (7) years, a mere one (1) year above the minimum for her Class B
felony, and only four (4) of those years are to be served in the DOC. This
Court reduced Norris’s sentence to twelve years, which is still a higher number
of years than Wasson’s sentence. Also, Appellate Rule 7(B) focuses “less on
comparing the facts of this case to others, whether real or hypothetical, and
more on focusing on the nature, extent, and depravity of the offense for which
the defendant was sentenced, and what it reveals about the defendant’s
character.” Leffingwell v. State, 810 N.E.2d 369, 372 (Ind. Ct. App. 2004).
[11] As a result, we find that, although as Wasson asserts, the nature of her offense
was not heinous or violent, she still obtained and delivered hydrocodone pills in
exchange for money. As for her character, she does have a prior conviction for
a drug-related offense and, as the trial court noted, continued to associate with a
known drug dealer after she was convicted. In light of these factors, and the
fact that Wasson’s sentence was already near the minimum sentence she could
Court of Appeals of Indiana | Memorandum Decision 70A04-1504-CR-139 | July 30, 2015 Page 6 of 7 receive for a Class B felony, we decline to revise her sentence based on the
nature of her offense and her character.
Affirmed.
Vaidik, C.J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 70A04-1504-CR-139 | July 30, 2015 Page 7 of 7