Westlake v. State

893 N.E.2d 769, 2008 Ind. App. LEXIS 2096, 2008 WL 4307447
CourtIndiana Court of Appeals
DecidedSeptember 23, 2008
Docket79A04-0803-CR-138
StatusPublished
Cited by3 cases

This text of 893 N.E.2d 769 (Westlake 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
Westlake v. State, 893 N.E.2d 769, 2008 Ind. App. LEXIS 2096, 2008 WL 4307447 (Ind. Ct. App. 2008).

Opinions

OPINION

MATHIAS, Judge.

Anna Westlake (“Westlake”) pleaded guilty in Tippecanoe Superior Court to Class B felony dealing in cocaine and Class C felony neglect of a dependent. The trial court ordered Westlake to serve an aggregate sentence of fourteen years in the Department of Correction. Westlake raises one issue on appeal: whether her fourteen-year sentence is appropriate.

We reverse and remand.

Pacts and Procedural History

On August 16, 2006, the Tippecanoe County Drug Task Force (“DTF”) were maintaining surveillance on Westlake’s home and saw a vehicle leave. The DTF stopped the vehicle and found a baggie of cocaine that belonged to the passenger. The passenger had purchased the cocaine from Westlake and had purchased cocaine from her on previous occasions.

Based on this information, the DTF obtained a search warrant for Westlake’s home. However, before executing the warrant, the DTF noticed that Westlake had left her house and met another person at a laundromat. The police approached the vehicle and after noting items commonly used for smoking crack in plain view in the back seat, searched the vehicle.

The search of the vehicle turned up a small amount of marijuana, several baggies of rock and powder cocaine, and a bag of drug paraphernalia. Westlake was arrested. While in custody, Westlake told police she had been dealing for several months, and when told of the impending search warrant for her home, she volunteered to show police where drugs were hidden.

The search of Westlake’s home on August 17, 2006, revealed more than fifty grams of cocaine, more than forty grams of marijuana, various prescription pills, and drug paraphernalia. At the time of the search, Westlake’s six-year old son lived in the home.

[771]*771As a result of the search, the DTF arrested a man who was living with Westlake for manufacturing methamphetamine. Child Protective Services (“CPS”) removed her son from the home and subsequent hair follicle tests of the child showed the presence of cocaine and methamphetamine. Westlake herself also tested positive for methamphetamine.

On January 12, 2007, the State charged Westlake with two counts of Class A felony dealing in cocaine, Class A felony possession of cocaine, Class D felony possession of marijuana, and two counts of Class C felony neglect of a dependent. On January 19, 2007, the State added two more counts of Class A felony dealing in cocaine.

On July 13, 2007, Westlake pleaded guilty to Class B felony dealing in cocaine and Class C felony neglect of a dependent. Under the plea agreement, the remaining counts would be dismissed and sentencing would be left open. The trial court took the guilty plea under advisement, placed Westlake in a pre-conviction release program pending sentencing, and ordered that she obtain psychiatric and substance abuse evaluations.

While awaiting sentencing, a CHINS case involving her children proceeded. Prior to the sentencing hearing, Westlake had visitation with her children at least every other weekend. The CHINS case was eventually dismissed.

As a result of the evaluations ordered at the guilty plea hearing, Westlake was diagnosed and treated for bipolar disorder, a serious mental illness that had previously been undiagnosed and untreated. While in the pre-conviction release program, Westlake obtained full-time employment, participated in an outpatient drug treatment program, attended daily Narcotics Anonymous meetings, and enrolled in parenting classes. During this time, Westlake lost part of her right thumb in a work-related accident. She received prescribed narcotic painkillers, discontinued use of them after two weeks, and reentered the drug treatment program. Not surprisingly, her pre-sentence report found that Westlake is in the low risk offender group that is suitable for halfway house placement, minimum security, and/or parole.

On December 20, 2007, the trial court accepted the plea agreement, found West-lake guilty but mentally ill, and sentenced her to an executed ten-year sentence for the Class B felony dealing in cocaine and four years for the Class C neglect of a dependent with three years suspended to community corrections and one year suspended to unsupervised probation. The trial court found five mitigating circumstances: Westlake’s intelligence, education, work history, incarceration causing undue hardship on her children, and her bipolar disorder; and two aggravating circumstances: criminal history and the extent of her drug dealing. The trial court found that these factors were in balance but imposed consecutive sentences because of the serious substance abuse and the extent of her drug dealing.

Westlake appeals.

Discussion and Decision

Westlake argues her fourteen-year sentence is inappropriate. Appellate courts have the constitutional authority to revise a sentence if, after consideration of the trial court’s decision, the court concludes the sentence is inappropriate in light of the nature of the offense and character of the offender. Ind. Appellate Rule 7(B) (2008); Marshall v. State, 832 N.E.2d 615, 624 (Ind.Ct.App.2005), trans. denied. “[A] defendant must persuade the appellate court that his or her sentence has met the inappropriateness standard of review.” Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.2007).

[772]*772Considering the nature of the offenses, Westlake pleaded guilty to Class B felony dealing in cocaine and Class C felony neglect of a dependent. The range of sentences for a Class B felony is from six to twenty years with a fine of not more than $10,000. The range of sentences for the Class C felony is from two to eight years with a fine of not more than $10,000. Westlake had been dealing cocaine, marijuana, and other prescription drugs for nearly one year. Through Westlake’s immediate cooperation, police found more than an ounce of cocaine, more than an ounce of marijuana, various prescription medications, and other drug paraphernalia in Westlake’s home. Hair follicle tests showed that her six-year old son had been exposed to cocaine and methamphetamine. The trial court determined that her level of involvement in drug dealing was an aggra-vator. However, no aggravators were deemed to attach to the neglect of a dependent charge.

Westlake’s demonstrated character is crucial to our review and to our conclusion that Westlake’s sentence is inappropriate. When police confronted her, she immediately assisted them in locating all of the drugs in her home. After she pleaded guilty, the trial court placed Westlake in its excellent pre-conviction release program. While in this program, Westlake was diagnosed with bipolar disorder1 and received treatment and medication. With her newfound psychiatric stability, she was incredibly successful in the pre-conviction release program. In addition, Westlake cooperated with the CPS to such a degree that the CHINS case was dismissed. She was granted liberal visitation with her children and would have had the children returned to her care, if not for the possibility of jail time. Appellant’s App. p. 17.

In her pre-sentence report, Westlake was determined to be in the low risk offender group suitable for placement in a halfway house, minimum security, and/or parole.

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Indiana Court of Appeals, 2014
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Westlake v. State
893 N.E.2d 769 (Indiana Court of Appeals, 2008)

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893 N.E.2d 769, 2008 Ind. App. LEXIS 2096, 2008 WL 4307447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westlake-v-state-indctapp-2008.