Thomas-Collins v. State

868 N.E.2d 557, 2007 Ind. App. LEXIS 1315, 2007 WL 1792312
CourtIndiana Court of Appeals
DecidedJune 22, 2007
DocketNo. 79A05-0703-CR-176
StatusPublished
Cited by3 cases

This text of 868 N.E.2d 557 (Thomas-Collins v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomas-Collins v. State, 868 N.E.2d 557, 2007 Ind. App. LEXIS 1315, 2007 WL 1792312 (Ind. Ct. App. 2007).

Opinion

OPINION

VAIDIK, Judge.

Case Summary

Tracy Thomas-Collins (“Thomas-Collins”) appeals her cumulative ten-year sentence for Burglary as a Class B felony and Possession of a Schedule II Controlled Substance within 1000 feet of school property, a Class C felony. Concluding that the trial court did not abuse its discretion in finding, weighing, and balancing the aggravating and mitigating circumstances and that Thomas-Collins’ sentence is not otherwise inappropriate, we affirm the judgment of the trial court.

Facts and Procedural History

On August 8, 2005, Thomas-Collins broke into the apartment of Rebecca Bus-sert with the intent of stealing oxycodone. Upon entering the apartment, Thomas-Collins found no drugs, but she did take approximately 100 bracelets and forty tank tops. When apprehended for the burglary, Thomas-Collins was in possession of oxycodone tablets and was within 1000 feet of a school.

The State charged Thomas-Collins with: Count I, Burglary as a Class B felony;1 Count II, Theft as a Class D felony;2 Count III, Possession of a Schedule II Controlled Substance (oxycodone) within 1000 feet of school property, a Class C [559]*559felony;3 Count TV, Possession of a Schedule II Controlled Substance (Ritalin) within 1000 feet of school property, a Class C felony;4 Count V, Possession of a Schedule III Controlled Substance (codeine) within 1000 feet of school property, a Class C felony;5 Count VI, Possession of Marijuana as a Class A misdemeanor;6 Count VII, Possession of Paraphernalia (syringes) as a Class A misdemeanor;7 and Count VIII, Possession of Paraphernalia (rolling papers and other smoking devices) as a Class A misdemeanor.8 Pursuant to a plea agreement, Thomas-Collins pled guilty to Count I, Burglary as a Class B felony, and Count III, Possession of a Schedule II Controlled Substance (oxyco-done), a Class C felony, and the State agreed to dismiss all other charges. The parties agreed to leave sentencing to the discretion of the trial court.

Between the date of the guilty plea hearing and the sentencing hearing, Thomas-Collins voluntarily participated in a ninety-day substance abuse treatment program at Discover Recovery in Terre Haute. However, at the beginning of the sentencing hearing on August 11, 2006, Thomas-Collins admitted to recent marijuana use. As such, the trial court revoked her bond, ordered her to jail, and continued the sentencing hearing.

In sentencing Thomas-Collins, the trial court found as a mitigating circumstance her lack of prior felony convictions. The trial court identified as aggravating circumstances Thomas-Collins’ . history of criminal activity and her history of substance abuse. Finding that the aggrava-tors and the mitigator balance, the trial court imposed the advisory sentence of ten years for. Count I and the advisory sentence of four years for Count II, with the sentences to run concurrently. Of the ten-year sentence, the trial court ordered six years executed, three years with Tippecanoe County Community Corrections, and one year of supervised probation. Thomas-Collins now appeals.

Discussion and Decision

On appeal, Thomas-Collins argues that her sentence is inappropriate. In part, Thomas-Collins contends that the ⅛⅛1 court abused its discretion in finding, weighing, and balancing the aggravating and mitigating circumstances. In this regard, we note that the Indiana General Assembly has amended Indiana Code § 35 — 38—1—7.1(d) to provide that a trial court may impose any sentence that is authorized by statute and permissible under the Indiana Constitution “regardless of the presence or absence of aggravating circumstances or mitigating circumstances.” Nonetheless, this Court has held that “[e]ven under the new statutes, an assessment of the trial court’s finding and weighing of aggravators and miti-gators” is still relevant in determining whether a sentence is inappropriate. McMahon v. State, 856 N.E.2d 743, 748 (Ind.Ct.App.2006).9 We perform this assessment under an abuse of discretion [560]*560standard. Long v. State, 865 N.E.2d 1031 (Ind.Ct.App.2007).

Before turning to Thomas-Collins’ specific arguments, we emphasize that the sentence the trial court did impose is not nearly as severe as the sentence that it could have imposed. Thomas-Collins pled guilty to burglary as a Class B felony and possession of a Schedule II controlled substance as a Class C felony. She would have faced twenty-eight years in prison if the trial court had imposed the maximum sentence of twenty years for the Class B felony and the maximum sentence of eight years for the Class C felony and ordered the sentences to run consecutively. Instead, the trial court imposed the advisory sentence for each conviction and ordered them to run concurrently with three years to be served with Tippecanoe County Community Corrections and one year suspended to probation.

Thomas-Collins first asserts that the trial court abused its discretion by assigning too much aggravating weight to her criminal history. Her criminal history consists of misdemeanor convictions for driving with a revoked or suspended license in 1997, theft (shoplifting) in 2000, possession of drug paraphernalia in 2001, and prostitution and criminal trespass in 2002. Furthermore, the pre-sentence investigation report reveals that Thomas-Collins has violated her probation at least once in the past and that she had pending misdemeanor charges for possession of marijuana, possession of paraphernalia, and operating a vehicle having never received a license when she was arrested for the instant offenses.

Contrary to Thomas-Collins’ claim, it does not appear that the trial court assigned this aggravator significant weight. Indeed, the trial court found Thomas-Collins’ lack of felony convictions to be a mitigating circumstance. In addition, the trial court found that the aggravating and mitigating circumstances balance and imposed concurrent advisory sentences. To the extent that the trial court did assign aggravating weight to Thomas-Collins’ criminal history, it did not abuse its discretion. The weight of a defendant’s criminal history is measured by the number of pri- or convictions and their gravity, by their proximity or distance from the present offense, and by any similarity or dissimilarity to the present offense that might reflect on a defendant’s culpability. Duncan v. State, 857 N.E.2d 955, 959 (Ind. 2006). Though misdemeanors, Thomas-Collins’ convictions are both relatively recent, and three of the five — theft (shoplifting), possession of drug paraphernalia, and criminal trespass — are similar to her instant convictions for burglary and possession of a Schedule II controlled substance. Moreover, Thomas-Collins’ offenses have been increasingly serious, and she committed the instant offenses while three other misdemeanor charges were pending. We cannot say that the trial court abused its discretion in weighing Thomas-Collins’ criminal history.

Thomas-Collins also argues that the trial court abused its discretion in failing to find certain mitigating circumstances. First, she notes that she pled guilty.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Robert Tingle v. State of Indiana (mem. dec.)
Indiana Court of Appeals, 2016
Jesse L. Rose v. State of Indiana
Indiana Court of Appeals, 2013

Cite This Page — Counsel Stack

Bluebook (online)
868 N.E.2d 557, 2007 Ind. App. LEXIS 1315, 2007 WL 1792312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-collins-v-state-indctapp-2007.