MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Mar 01 2018, 5:44 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald E.C. Leicht Curtis T. Hill, Jr.
Kokomo, Indiana Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jaide T. Spencer, March 1, 2018
Appellant-Defendant, Court of Appeals Case No.
34A02-1711-CR-2615
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable William C.
Appellee-Plaintiff. Menges, Judge
Trial Court Cause No.
34D01-1707-F2-871
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Jaide Spencer (Spencer), appeals the trial court’s sentence
following a plea agreement for dealing in a narcotic drug, a Level 2 felony, Ind.
Code 35-48-4-1(a)(2).
[2] We affirm.
ISSUE
[3] Spencer presents us with one issue on appeal, which we restate as: Whether
Spencer’s executed sentence without a recommendation for the Department of
Correction’s therapeutic community program, was inappropriate in light of the
nature of the offense and her character.
FACTS AND PROCEDURAL HISTORY
[4] On July 22, 2017, officers went to the Motel 6 in Kokomo, Indiana, to serve an
active warrant on Spencer. When they located Spencer in her motel room, she
was in possession of 25 grams of heroin and a syringe. They also found a set of
digital scales and two packages of small Ziploc plastic bags that are commonly
used to package illegal drugs, hidden under the air conditioner.
[5] On July 25, 2017, the State filed an Information, charging Spencer with Count
I, dealing in a narcotic drug, a Level 2 felony, I.C. § 35-48-4-1(a)(2); Count 2,
possession of a narcotic drug, a Level 4 felony, I.C. § 35-48-4-6(a); Count III,
unlawful possession of a syringe, a Level 5 felony, I.C. § 16-42-19-18; and
Count IV, maintaining a common nuisance, a Level 6 felony, I.C. § 35-45-1-
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5(c). On September 29, 2017, Spencer entered into a guilty plea with the State,
agreeing to plead guilty to Count I, in exchange for the State’s dismissal of the
other charges. The trial court accepted the plea agreement on the same day and
entered judgment of conviction accordingly.
[6] On October 31, 2017, the trial court conducted a sentencing hearing. During
the sentencing hearing, twenty-three-year-old Spencer admitted she has “been
fooling” around with the drug scene for the past nine years. (Transcript p. 15).
She started using heroin when she was fourteen years old and has been injecting
it since May of 2016. She also started using methamphetamine in September
2016. She used both drugs “off and on at the same time” ever since. (Tr. p.
18). She has never participated in a drug and alcohol program. During this
time period, Spencer had three children, who were ages nine, four, and three at
the time of sentencing, but none of them resided with her.
[7] Spencer testified that she considered herself “just a user” “until it got hard to get
[her] drugs.” (Tr. p. 18). Then she started getting larger quantities to “sell
them” and admitted to becoming a “dealer at some point.” (Tr. p. 18). She
confirmed that she had planned to sell the amount of heroin found in the motel
room, after having used some of it.
[8] Spencer has prior convictions for Level 6 felony possession of a narcotic drug, a
Class A misdemeanor maintaining a common nuisance, and a Class A
misdemeanor unlawful possession of a syringe in two separate cases arising out
of incidents in November 2016. At the time of sentencing, Spencer had a
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warrant out for her arrest for a theft charge in Marshall County, and a petition
to revoke her probation was pending in Miami County. Spencer requested the
trial court to sentence her to the DOC’s therapeutic community program, 1
which would allow the trial court to modify her sentence, upon successful
completion of the program. She wanted to enroll in the program because she
doesn’t “want to live like this anymore and [she] just want[s] to be able to get
[her] life together so [she] can be with [her] children.” (Tr. p. 15).
[9] During the State’s cross-examination of Spencer, the trial court, in response to
an objection by Spencer’s counsel, observed:
I think as a practical matter, what you’re asking for [defense
counsel], is that she be treated solely as an addict, sent to the
[t]herapeutic [c]ommunity which puts her back into the general
population within a year, eighteen months, on the theory that she
is in fact an addict. We have a couple of problems with that.
Number 1, we have a large amount of heroin involved. Number
2, we get into the criminal thinking and we have to, I have to
figure out whether she is an addict or whether she’s a drug
dealer. If she’s a drug dealer she doesn’t need [t]herapeutic
[c]ommunity.
(Tr. p. 26). In closing, Spencer’s counsel argued that Spencer was not a
professional drug dealer, but a drug addict who was “stupid enough” to meet a
1
The DOC’s therapeutic community program is an in-patient substance abuse therapeutic community for
offenders who have addictions to drugs or alcohol. See Purposeful Incarceration,
https://www.in.gov/idoc/2798.htm (last visited Febr. 20, 2018).
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drug dealer and “get big quantities.” (Tr. p. 30). The trial court declined
Spencer’s request and sentenced her as follows:
I’m going to find that [Spencer’s] criminal history is an
aggravating factor, that she’s recently violated the conditions of
probation, parole, [c]ommunity [c]orrections, placed on pretrial
release granted to her. I find that her imprisonment will cause a
hardship on her children but that is a very minimal mitigating
factor given the situation when she was not incarcerated and so I
don’t think it’s entitled to much weight. I find that the
aggravating factors outweigh the mitigating factors and justify an
enchanced sentence. The problem we have is exactly what I said
earlier, are we dealing with a drug dealer who needs to be
incarcerated because of the danger that she poses to the rest of
society or are we dealing with an addict who needs treatment so
she can go and live the rest of her life. Twenty-five grams of
heroin. For somebody just starting heroin usage the average dose
would be three to four milligrams. You know, there are 1,000
milligrams in a gram so that 25 grams for somebody just starting
out would be 8,333 doses of heroin. For somebody who, I guess
an experienced heroin user, they build a tolerance but it’s
generally accepted that even though the tolerance exists and the
amount of heroin that somebody consumes goes up, regardless of
your tolerance a dosage of 75 milligrams or so is going to be
fatal, so let’s just assume that you’re a long term heroin user.
The only [] purchase [sic] 333 doses. I don’t buy it. I think
you’re a dealer. Accordingly, I’m going to sentence you to the
Indiana Department of Correction for a period of 20 years.
That’s executed.
(Tr. pp. 31-32).
[10] Spencer now appeals. Additional facts will be provided if necessary.
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DISCUSSION AND DECISION
[11] Spencer contends that the trial court improperly imposed an executed sentence
of twenty years instead of referring her to the DOC’s therapeutic community
program. Maintaining that the reality between a dealer and addict “is not
binary,” Spencer argues that the evidence is “unrefuted” that she is a
“chemically addicted offender” suitable to participate in the therapeutic
community program. (Appellant’s Br. p. 9).
[12] We may only revise a sentence authorized by statute if, after due consideration
of the trial court’s decision, “the [c]ourt finds that the sentence is inappropriate
in light of the nature of the offense and the character of the offender.” Ind.
Appellate Rule 7(B). “[S]entencing is principally a discretionary function in
which the trial court’s judgment should receive considerable deference.”
Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The question under
Appellate Rule 7(B) analysis is “not whether another sentence is more
appropriate” but rather “whether the sentence imposed is inappropriate.” King
v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). “The location where a
sentence is to be served is an appropriate focus for application of our review and
revise authority.” Id. “A defendant challenging the placement of a sentence
must convince us that the given placement is itself inappropriate.” Id. As a
practical matter, trial courts know the feasibility of alternative placements in
particular counties or communities. Id.
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[13] Under the particular circumstances of this case, we conclude that the trial court
did not improperly sentence Spencer. Spencer’s criminal history includes
convictions in 2016 for a level 6 felony possession of a narcotic drug, a Class A
misdemeanor maintaining a common nuisance, and a Class A misdemeanor
unlawful possession of a syringe. She had a warrant out for her arrest in
Marshall County, as well as a pending petition to revoke probation in Miami
County. Even though Spencer testified that she considered herself to be “just a
user,” the quantity of heroin in her possession—twenty-five grams—was much
larger than even needed by an experienced drug addict. (Tr. p. 18). Confronted
by the State, Spencer openly admitted that she became a “dealer at some point”
and confirmed that she planned to sell the amount of heroin found in the motel
room. (Tr. p. 18). She has been involved in the drug scene for nine years—the
entire life of her oldest child—but never sought any substance abuse treatment.
[14] In light of Spencer’s criminal history—including the failed rehabilitation—and
her testimony at the sentencing hearing, we cannot conclude that the trial
court’s sentence of twenty years executed in the DOC, without a
recommendation for the therapeutic community program, was inappropriate.
CONCLUSION
[15] Based on the foregoing, we hold that the trial court’s sentence is not
inappropriate pursuant to Indiana Appellate Rule 7(B).
[16] Affirmed.
[17] Baker, J. and Brown, J. concur
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