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.
Nov 13 2013, 5:42 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CHRIS P. FRAZIER GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BRENDA PAINTER, )
)
Appellant-Defendant, )
)
vs. ) No. 48A02-1304-CR-346
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable David A. Happe, Judge
Cause No. 48C04-1205-FB-982
Cause No. 48C04-1209-FA-1806
November 13, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
Brenda Painter appeals her sentence for two counts of Class B felony dealing in
methamphetamine. Finding no abuse of discretion in the trial court’s sentence and that
Painter’s aggregate twenty-two-year sentence, of which only ten years will be served in the
Department of Correction, is not inappropriate in light of the nature of the offenses and her
character, we affirm.
Facts and Procedural History
The factual basis in this case is limited. It was established at the guilty-plea hearing
that in May 2012, Painter “did knowingly or intentionally aide, induce or cause another to
manufacture methamphetamine, pure or adulterated.” Tr. p. 14. Painter was charged with
six counts. Appellant’s App. p. 14-18. In September 2012, while released on bond and
awaiting trial on the May 2012 charges, Painter again “did knowing [sic] or intentionally
aide, induce, or cause” Mark Brown to manufacture methamphetamine. Tr. p. 14. Painter
was charged with two counts. Appellant’s App. p. 61-62. Neither the State nor Painter
introduced further evidence about the offenses at the guilty-plea hearing.
On the day of the trial for both cases, Painter agreed to plead guilty. In the plea
agreement, which covered both cases, Painter pled guilty to two counts of Class B felony
dealing in methamphetamine. Tr. p. 13. The State dismissed the other six counts. Id. at
5-6. The sentence was left open to the trial court. Appellant’s Br. p. 3.
At sentencing, the court found Painter’s guilty plea as a mitigating factor. However,
it was “entitled to very little weight given, uh, that it didn’t happen until the day of your
scheduled trial when the jurors and all the witnesses that have been inconvenienced and
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the State had put the effort into trial preparation.” Tr. p. 36. The trial court also decided
to give it little weight because Painter’s guilty plea “doesn’t really involve an expression
of your acceptance of sincere responsibility for the case, or any remorse.” Id.
The court also found two aggravators. First, the court concluded that Painter’s
criminal history was an aggravator. The trial court stated that Painter’s convictions for
driving under the influence and possession of paraphernalia were aggravating in terms of
Painter’s criminal history. Id. Second, the court determined that the timing of Painter’s
second offense for dealing in methamphetamine was aggravating because it occurred while
she was released on bond for the first dealing in methamphetamine case. The court
ultimately concluded that the aggravators outweighed the mitigator. Id.
Despite the trial court’s comments that Painter had multiple convictions, the pre-
sentence investigation report (PSI) shows that Painter’s sole previous conviction is a
misdemeanor violation of an open-container law in South Carolina in 2001. PSI p. 5.
Painter was also charged with an open-container violation in 2000, but the PSI does not
state the disposition of that charge. Id. Similarly, in 1997, Painter was charged in South
Carolina with driving under the influence, simple possession of marijuana, and possession
of drug paraphernalia, but the PSI does not reveal the disposition of those charges. Id. The
State concedes on appeal that Painter has only one conviction. Appellee’s Br. p. 8. In
addition, the PSI categorized Painter as a low risk to reoffend. PSI p. 1, 10.
The court sentenced Painter to eleven years in the Department of Correction for each
Class B felony dealing in methamphetamine conviction, running consecutively, for a total
sentence of twenty-two years. Tr. p. 37; see also Ind. Code § 35-50-1-2(d)(2)(B) (requiring
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consecutive sentences when a second offense is committed while released on bond for the
first offense). Of those twenty-two years, the trial court ordered ten years to be executed
in the Department of Correction. The remaining twelve years were to be served on
probation. Tr. p. 37-38.
Painter now appeals her sentence.
Discussion and Decision
Painter raises two issues on appeal. First, she contends that the trial court abused
its discretion by considering charges that did not result in convictions as an aggravator and
by not considering her lack of criminal history as a mitigator. Second, she contends that
her twenty-two-year sentence is inappropriate in light of the nature of the offenses and her
character.
I. Abuse of Discretion
Painter contends that the trial court abused its discretion by considering charges that
did not result in convictions as an aggravator. Sentencing decisions are within the sound
discretion of the trial court and are reviewed on appeal only for abuse of discretion.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218
(Ind. 2007). As long as the sentence is within the statutory range, it is reviewable only for
abuse of discretion. Id. An abuse of discretion occurs if the decision is “clearly against
the logic and effect of the facts and circumstances before the court, or the reasonable,
probable, and actual deductions to be drawn therefrom.” Id. (citing K.S. v. State, 849
N.E.2d 538, 544 (Ind. 2006)).
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A trial court can abuse its sentencing discretion in several ways, including: (1)
failure to enter a sentencing statement at all; (2) entering a sentencing statement that
explains reasons for imposing a sentence where the record does not support the reasons;
(3) entering a sentencing statement that omits reasons that are clearly supported by the
record and advanced for consideration; and (4) entering a sentencing statement in which
the reasons given are improper as a matter of law. Id. at 490-91. If the trial court abuses
its discretion in one of these or any other way, remand for resentencing may be the
appropriate remedy “if we cannot say with confidence that the trial court would have
imposed the same sentence had it properly considered reasons that enjoy support in the
record.” Id. at 491.
Although there may be several aggravating factors, “[o]nly one valid aggravator is
needed to sustain an enhanced sentence.” Id. (citing Jones v. State, 600 N.E.2d 544, 548
(Ind. 1992)). If one aggravating factor is improperly applied, the sentence is still valid as
long as “other valid aggravators exist[ed] and the invalid aggravator did not play a
significant role in the trial court’s decision.” Hart v. State, 829 N.E.2d 541, 543-44 (Ind.
Ct. App. 2005). Moreover, “the court may rely on the same reasons to impose an enhanced
sentence and also impose consecutive sentences.” Moore v. State, 907 N.E.2d 179, 181
(Ind. Ct. App. 2009).
Initially, we note that the advisory sentence for each count was ten years. In
addition, the trial court was required to run the sentences consecutively under Indiana Code
section 35-50-1-2(d)(2)(B), which requires the trial court to impose a consecutive sentence
for two crimes if another crime is committed while the accused is released on bond for the
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first crime. The trial court imposed a sentence that was only two years more than the
aggregate advisory sentence of twenty years and within the aggregate statutory guideline
range of forty years. See Ind. Code § 35-50-2-5.
Painter argues that the trial court erred in considering her criminal record as an
aggravator. The State concedes that the trial court improperly considered Painter’s charges
for driving under the influence and possession of drug paraphernalia as convictions.
However, it is well-established that only one valid aggravator is required for a trial court
to enhance a presumptive sentence. Anglemyer, 868 N.E.2d at 491. Here, the trial court
validly concluded that the fact that Painter committed a second dealing-in-
methamphetamine offense while awaiting trial for the first offense was an aggravator,
giving the trial court an independent basis to enhance her sentence beyond the presumptive
sentence. Tr. p. 36. Thus, the error committed by the trial court was harmless.
Painter also argues that trial court should have considered her criminal history to be
a mitigator. Under Indiana Code section 35-38-1-7.1(b)(1), a court may consider as a
mitigating circumstance the fact that “[t]he person has no history of delinquency or
criminal activity, or the person has led a law-abiding life for a substantial period before
commission of the crime.” The trial court may consider a defendant’s criminal history.
While Painter led a law-abiding life for a substantial period of time before the instant
offense, she was arrested for a second dealing-in-methamphetamine offense while released
on bond for the first. The trial court did not abuse its discretion in not considering her lack
of criminal history as a mitigating circumstance.
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Because the trial court concluded that Painter’s one mitigating factor was entitled
to such little weight and found one appropriate aggravator, namely that the second offense
was committed while Painter was released on bond for the first offense, we can say with
confidence that the trial court would have imposed the same sentence had it not considered
Painter’s 1997 charges as convictions. Thus, the trial court’s error was harmless.
II. Appropriateness
Painter also contends that her twenty-two-year 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 imposing a
sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent
appellate review and revision of sentences through Indiana Appellate Rule 7(B), which
provides that a court “may revise a sentence authorized by statute if, after due consideration
of the trial court’s decision, the Court finds the sentence is inappropriate in light of the
nature of the offense and the character of the offender.” Reid v. State, 876 N.E.2d 1114,
1116 (Ind. 2007) (citing Anglemyer, 868 N.E.2d at 491). When determining whether a
sentence is inappropriate, we recognize that the presumptive sentence “is the starting point
the Legislature has selected as an appropriate sentence for the crime committed.” Weiss v.
State, 848 N.E.2d 1070, 1072 (Ind. 2006). When assessing the nature of the offense and
the character of the offender, we may look to any factors appearing in the record. Stetler
v. State, 972 N.E.2d 404, 408 (Ind. Ct. App. 2012), trans. denied. The defendant has the
burden of persuading us that his sentence is inappropriate. Reid, 876 N.E.2d at 1116 (citing
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).
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The principal role of Rule 7(B) 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). We “should focus on the forest—
the aggregate sentence—rather than the trees—consecutive or concurrent, number of
counts, or length of the sentence on any individual count.” Id. Whether a sentence is
inappropriate ultimately turns on the culpability of the defendant, the severity of the crime,
the damage done to others, and a myriad of other factors that come to light in a given case.
Id. at 1224. In assessing whether a sentence is inappropriate, appellate courts may take
into account whether a portion of the sentence is ordered suspended or is otherwise crafted
using any of the variety of sentencing tools available to the trial judge. Davidson v. State,
926 N.E.2d 1023, 1025 (Ind. 2010). These tools include probation, home detention,
placement in a community corrections program, executed time in a Department of
Correction facility, concurrent rather than consecutive sentences, and restitution/fines. Id.
Here, for each Class B felony conviction, the trial court sentenced Painter to eleven
years—just one year above the advisory sentence—and ordered the sentences to be served
consecutively, as required by statute, for a total sentence of twenty-two years. This is
within the statutory range. Of those twenty-two years, only ten will be executed in the
Department of Correction.
The nature of the offenses is unremarkable. According to the limited factual basis,
Painter knowingly or intentionally aided, induced, or caused another to manufacture
methamphetamine. According to her brief, one of the dealings was a controlled buy to a
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police officer. Appellant’s Br. p. 11. However, Painter committed a second dealing-in-
methamphetamine offense while released on bond for the first dealing-in-
methamphetamine offense. This suggests that she was not deterred after being charged for
the first offense.
As to Painter’s character, she has only one misdemeanor conviction for an open-
container violation approximately twelve years ago. Painter has also been arrested for
driving under the influence, simple possession of marijuana, possession of drug
paraphernalia, and an open-container violation. However, Painter does not seem to have
remorse for her actions. In her statement to the court at sentencing, Painter maintained her
innocence after pleading guilty, claiming that she was induced into pleading guilty because
the State threatened to elevate her felony charge to a Class A felony and revoke her fiancé’s
plea agreement. Tr. p. 25. She also claimed that she was exposed to “Mersa, Hepatitis B
and C, Staph, HIV and AIDS,” while incarcerated. Id. at 26. Nowhere in the record did
she apologize or take responsibility for her actions. According to the trial court, Painter
needed a sentence “to help [her] understand that what [she] did, not what other people did
to you, but what [she] did when [she] participated in creating and distributing
methamphetamine . . . .” Id. at 35.
Given the nature of these offenses and Painter’s character, Painter has failed to
persuade us that her aggregate twenty-two-year sentence, of which only ten years will be
served in the Department of Correction, is inappropriate. We therefore affirm the trial
court.
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Affirmed.
BAKER, J., and FRIEDLANDER, J., concur.
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