MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as Jun 02 2015, 9:39 am
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
Gregory L. Fumarolo Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ashley J. Todd, June 2, 2015
Appellant-Defendant, Court of Appeals Case No.
02A04-1412-CR-588
v. Appeal from the Allen Superior
Court.
State of Indiana, The Honorable Frances C. Gull,
Judge.
Appellee-Plaintiff.
Cause Nos. 02D05-1405-FD-484 &
02D05-1405-FD-571
Riley, Judge
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STATEMENT OF THE CASE
[1] In this consolidated appeal, Appellant-Defendant, Ashley J. Todd (Todd),
appeals her sentence following her conviction for possession of
methamphetamine, a Class D felony, Ind. Code § 35-48-4-6.1(a) (2013);
maintaining a common nuisance, a Class D felony, I.C. § 35-48-4-13(b) (2013);
possession of chemical reagents or precursors with the intent to manufacture, a
Class D felony, I.C. § 35-48-4-14.5(e) (2013); and possession of paraphernalia, a
Class A misdemeanor, I.C. § 35-48-4-8.3(a)-(b) (2013) (collectively, Cause
Number 484), as well as her conviction for theft, a Class D felony, I.C. § 35-43-
4-2(a) (2013) (Cause Number 571).
[2] We affirm.
ISSUE
[3] Todd raises one issue on appeal, which we restate as follows: Whether Todd’s
sentence is inappropriate in light of the nature of the offense and her character.
FACTS AND PROCEDURAL HISTORY
[4] On April 25, 2014, the Fort Wayne Police Department executed a search
warrant at Todd’s home in Fort Wayne, Allen County, Indiana. Therein,
police officers discovered numerous ingredients used in the manufacture of
methamphetamine, as well as more than 0.5 grams of methamphetamine. An
aluminum foil “boat,” commonly used for ingesting methamphetamine, and a
wooden smoking pipe—both of which contained burnt residue—were also
recovered. (Appellant’s App. p. 20).
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[5] On May 1, 2014, the State filed an Information under Cause Number 484,
charging Todd with Count I, possession of methamphetamine as a Class D
felony; Count II, maintaining a common nuisance as a Class D felony; Count
III, possession of chemical reagents or precursors with intent to manufacture as
a Class D felony; and Count IV, possession of paraphernalia as a Class A
misdemeanor. On May 5, 2014, Todd posted bond and was released from jail.
Just eleven days later, Todd was shopping at a Sears store and was observed
stealing a package of chainsaw blades, valued at $44.99. Todd was
apprehended immediately after exiting the store, so Sears was able to recover its
merchandise. On May 19, 2014, Todd’s bond in Cause Number 484 was
revoked, and on May 22, 2014, the State filed an Information under Cause
Number 571, charging her with theft as a Class D felony.
[6] On June 2, 2014, pursuant to a plea agreement, Todd pled guilty to all charges
under both Cause Numbers 484 and 571. In accordance with the plea
agreement, the trial court took Todd’s guilty plea under advisement and placed
Todd in the Drug Court Diversion Program (Diversion Program). Todd signed
a Drug Court Participation Agreement, which provided that upon successful
completion of the Diversion Program, both causes would be dismissed. It was
further explained to Todd that if she failed to comply with the conditions of the
Diversion Program, her participation would be revoked, and the trial court
would enter a judgment of conviction on all charges and sentence Todd
accordingly.
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[7] As part of the Diversion Program, Todd was required to adhere to a plethora of
conditions, including, in part, transitional living, submitting to urine screens,
and maintaining good behavior. Within the first month of beginning the
Diversion Program, Todd struggled to follow the rules of the Redemption
House—her transitional living assignment. She admitted to smoking marijuana
and was sanctioned by her transitional home. On June 26, 2014, July 2, 2014,
and July 21, 2014, Todd’s drug screens were diluted. Due to her violations, the
Redemption House discharged Todd on July 11, 2014, but she was thereafter
accepted into another transitional facility—the Rose Home. On July 21, 2014,
the trial court ordered Todd’s remand to the Allen County Jail until August 1,
2014, as a penalty for violating the Diversion Program’s rules. On October 9,
2014, Todd was unsuccessfully discharged from the Rose Home after she
purchased energy pills in violation of the Rose Home’s rules. On October 14,
2014, the Diversion Program filed a verified petition to terminate Todd’s
participation.
[8] On November 14, 2014, the trial court conducted a sentencing hearing and
entered a judgment of conviction on all charges in accordance with the plea
agreement. In Cause Number 484, the trial court imposed a sentence of two
years on each of the three Class D felonies, and a one-year sentence on the
Class A misdemeanor, all to be served concurrently. In Cause Number 571, the
trial court sentenced Todd to serve two years for the Class D felony. The trial
court further ordered the sentences in Cause Number 484 and Cause Number
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571 to be served consecutively, for an aggregate sentence of four years, fully
executed in the Indiana Department of Correction.
[9] On December 15, 2014, Todd filed a motion to consolidate the appeals for
Cause Number 484 and Cause Number 571, which this court granted on
January 12, 2015. Todd now appeals. Additional facts will be provided as
necessary.
DISCUSSION AND DECISION
[10] Todd claims that her sentence is inappropriate.1 We first note that the trial
court’s order of two-year sentences for each Class D felony and a one-year term
for the Class A misdemeanor falls squarely within the statutory sentencing
parameters. See I.C. § 35-50-2-7(a) (2013) (providing that a Class D felony is
punishable by “a fixed term of between six (6) months and three (3) years, with
the advisory sentence being one and one-half (1 ½) years”); I.C. § 35-50-3-2
(providing that the commission of a Class A misdemeanor warrants a fixed
term of imprisonment “of not more than one (1) year”). Because Todd was
released on bond in Cause Number 484 at the time she committed the theft in
Cause Number 571, the trial court was required to run the sentences
1
Pursuant to Indiana Administrative Rule 9(G)(2)(b) and Indiana Code section 35-38-1-13, the presentence
investigation (PSI) report must be excluded from public access. However, in this case, the information
contained in the PSI report “is essential to the resolution” of Todd’s claim of an inappropriate sentence. Ind.
Admin. Rule 9(G)(7)(a)(ii)(c). Accordingly, we have included confidential information in this decision only
to the extent necessary to resolve the appeal.
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consecutively, resulting in an aggregate term of four years. See I.C. § 35-50-1-
2(d)(2)(B) (2013).
[11] Notwithstanding the fact that the trial court imposed a statutorily authorized
sentence, our court may revise the sentence if we find “that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.” Ind. Appellate Rule 7(B). It is well established that “Indiana
Appellate Rule 7(B) leaves much to the discretion of appellate courts, but it
does not detract from the long-recognized principle that ‘sentencing is
principally a discretionary function in which the trial court’s judgment should
receive considerable deference.’” Parks v. State, 22 N.E.3d 552, 555 (Ind. 2014)
(quoting Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008)). On review, our
determination of the appropriateness of a sentence “turns on our sense of the
culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other factors that come to light in a given case.” Cardwell,
895 N.E.2d at 1224. We focus on the length of the aggregate sentence and how
it is to be served. Id. Our analysis is not intended “to determine whether
another sentence is more appropriate but rather whether the sentence imposed
is inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal
quotation marks omitted), reh’g denied. Ultimately, our goal is “to attempt to
leaven the outliers[] and identify some guiding principles for trial courts and
those charged with improvement of the sentencing statutes, . . . not to achieve a
perceived ‘correct’ result in each case.” Cardwell, 895 N.E.2d at 1224.
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[12] Todd bears the burden of persuading our court that her sentence is
inappropriate. See Conley, 972 N.E.2d at 876. As such, she posits that her
crimes were non-violent Class D felonies, and “her prior convictions are no
doubt the product of an ongoing problem with drug addiction.” (Appellant’s
Br. p. 17). Furthermore, she asserts that she wrote a letter to the trial court “in
which she accepts responsibility for her crimes, thanked the judge for the
opportunity to go through the [Diversion Program], and how that program
benefitted her even though she did not successfully complete it. More
importantly, the letter contained no excuses or requests for leniency.”
(Appellant’s Br. p. 17). Reserving her leniency requests for appeal, Todd now
seeks an aggregate sentence of three years, with one year executed (preferably in
work release or home detention) and two years suspended to probation.
[13] Looking first to the nature of the offense, we find that Todd pled guilty to being
in possession of both methamphetamine and several ingredients required for the
manufacture of methamphetamine, which she admittedly intended to do in her
home. Then, less than two weeks after being released on bond and while
awaiting acceptance into the Diversion Program, Todd stole approximately
$45.00 worth of chainsaw blades from a Sears store. As part of her plea
agreement, Todd was required to complete the Diversion Program in exchange
for having all of her charges dismissed. However, Todd repeatedly violated the
rules of both her transitional homes and was ultimately discharged from the
Diversion Program.
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[14] As to the character of the offender, we find that, in addition to the instant Class
D felony theft conviction, Todd has two prior felony convictions and one
misdemeanor conviction for theft. Todd’s criminal history also includes two
misdemeanor convictions for assault and leaving the scene of an accident. In
both of her prior felony theft cases, Todd received suspended sentences, which
were ultimately revoked. Contrary to Todd’s assertion, it is not clear from the
record that her prior crimes—none of which are drug-related—were the product
of her ongoing addiction with drugs. Nevertheless, Todd’s longstanding
substance abuse problem is apparent. She reportedly began using marijuana at
age sixteen and methamphetamine at age seventeen. Until age twenty, Todd
was using methamphetamine daily, but she quit using for a period of seven
years. Then, at age twenty-seven, Todd resumed her methamphetamine habit
and was using it two or three times per week up until her arrest in the instant
case. Todd has also experimented with cocaine, ecstasy, and mushrooms, and
she used Vicodin on a daily basis for over six years.
[15] In addition, we consider the fact that Todd is the mother of a nine-year-old son.
She has her GED, and she is licensed by the State of Indiana as an esthetician.
Todd expressed her gratitude to the court for the opportunity to participate in
the Diversion Program and stated that she is “regretful and ha[s] a broken heart
that [she] wasn’t able to complete [the Diversion Program].” (Sentencing Tr. p.
13). Todd indicated that she wanted to achieve sobriety and better herself for
her family, but when given the opportunity for rehabilitation, she admittedly
lied to and manipulated the staff-members at her transitional homes. As the
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trial court noted, Todd had previously “been given the benefit of jail, probation,
community service, Department of Correction treatment, drug court treatment
and transitional living and nothing has curtailed [her] behavior.” (Sentencing
Tr. p. 15). As leniency and the needs of her family have been insufficient
incentives for Todd to make lasting changes in her life prior to this point, it now
appears that an executed sentence is necessary to hold her accountable.
Therefore, we cannot say that Todd’s four-year sentence is inappropriate.
CONCLUSION
[16] Based on the foregoing, we conclude that Todd’s aggregate four-year sentence
is appropriate in light of the nature of the offense and her character.
[17] Affirmed.
[18] Bailey, J. and Barnes, J. concur
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