MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Jun 08 2018, 5:48 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
Benjamin Loheide Curtis T. Hill, Jr.
Law Office of Benjamin Loheide Attorney General of Indiana
Columbus, Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Connie D. Richey, June 8, 2018
Appellant-Defendant, Court of Appeals Case No.
03A01-1710-CR-2404
v. Appeal from the Bartholomew
Superior Court
State of Indiana, The Honorable James D. Worton,
Appellee-Plaintiff. Judge
Trial Court Cause No.
03D01-1705-F5-2824
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 1 of 13
Case Summary and Issue
[1] Following a jury trial, Connie Richey was convicted of dealing in a narcotic
drug, a Level 5 felony, and dealing in a substance represented to be a controlled
substance, a Level 6 felony. Richey was sentenced to consecutive terms of four
and one-half years and one and one-half years, respectively, for a total of six
years to be executed at the Indiana Department of Correction. Richey now
appeals, raising the sole issue of whether her sentence is inappropriate in light
of her character and the nature of her offense. Concluding her sentence is
inappropriate, we reverse and remand.
Facts and Procedural History
[2] On March 22, 2016, a confidential informant contacted Detective Chad Moore
of the Columbus Police Department and informed him that she could introduce
him to Connie Richey, a prospective drug dealer, and arrange for a drug buy.
At around 9 p.m., Detective Moore, operating undercover, drove to a
prearranged address and parked his vehicle out front. Having viewed
photographs of Richey to familiarize himself with her appearance, Detective
Moore recognized Richey as she approached his vehicle. Detective Moore gave
Richey $100 in exchange for one gram of a substance Richey purported to be
methamphetamine, but was later revealed to be a look-alike substance.
Detective Moore stated that he wished to buy “boy,” Transcript, Volume II at
64, a slang term for heroin, and Richey responded that she did not have any
herself, but she would check with someone else in the residence. Richey
Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 2 of 13
emphasized the potency of the heroin, telling Detective Moore, “[t]hey say it’s
fire too. I mean I don’t touch the sh*t.” Id. at 65.
[3] The next day, Richey called Detective Moore and informed him that someone
in the building could sell “boy,” and that she would let him know further details
through the confidential informant. Detective Moore and the confidential
informant then arranged for the purchase of five packs of heroin for $100.
Detective Moore returned to Richey’s residence, this time accompanied by
Detective Kelly Hibbs, and conducted another drug buy. Richey again
emphasized the potency of the heroin and explained that she had told the
source of the heroin, “I said well the sh*t what that is [sic] I’m kinda scared of it
cause my daughter had a six year addiction . . . .” Id. at 72.
[4] On May 19, 2017, the State charged Richey with dealing in a narcotic drug, a
Level 5 felony, and dealing in a substance represented to be a controlled
substance, a Level 6 felony. Richey was found guilty of both charges after a
two-day jury trial in which audio recordings of the drug deals were played for
the jury.
[5] The presentence investigation report reflected that Richey’s lengthy criminal
history began with an arrest for theft in 1986. Richey pleaded guilty to driving
while intoxicated and driving while suspended, both Class A misdemeanors, in
2000, and criminal conversion, a Class A misdemeanor, in 2007. In 2010,
Richey was again arrested for driving while suspended, a Class A
misdemeanor, and in 2012, Richey pleaded guilty to theft, a Class D felony,
Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 3 of 13
and was sentenced to three years with two years suspended. In 2015, Richey
was again charged with two counts of criminal conversion, both Class A
misdemeanors, and pleaded guilty to receive a sentence of one year, with all but
two days suspended. During the course of Richey’s various terms on probation,
five petitions to revoke her probation were filed and she has admitted to
numerous probation violations.
[6] At sentencing, the trial court found Richey’s criminal history and history of
probation violations as aggravating circumstances, but found no mitigating
circumstances. The trial court explained:
[T]he evidence was overwhelming. And you still take no
responsibility for your actions, blame others, . . . and the Court
. . . looks at your probation performance in the past and doesn’t
. . . think you are a good candidate for probation in this case.
Tr., Vol. II at 236. The trial court sentenced Richey to four and one-half years
for dealing in a narcotic drug, a Level 5 felony, and to one and one-half years
for dealing in a counterfeit substance, a Level 6 felony, with the terms to be
served consecutively. Richey now appeals.
Discussion and Decision
I. Standard of Review
[7] Article 7, Section 6 of the Indiana Constitution provides this court with the
authority to review and revise a criminal sentence. Indiana Appellate Rule 7(B)
explains that we may revise a sentence “if, after due consideration of the trial
Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 4 of 13
court’s decision, the Court finds that the sentence is inappropriate in light of the
nature of the offense and the character of the offender.” Because a trial court’s
judgment “should receive considerable deference[,]” Cardwell v. State, 895
N.E.2d 1219, 1222 (Ind. 2008), our principal role is to “leaven the outliers,” id.
at 1225. “Such deference should prevail unless overcome by compelling
evidence portraying in a positive light the nature of the offense (such as
accompanied by restraint, regard, and lack of brutality) and the defendant’s
character (such as substantial virtuous traits or persistent examples of good
character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The defendant
bears the burden to persuade this court that his or her sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). We may rely on any
factors appearing in the record in making the determination of whether a
sentence is inappropriate. Stokes v. State, 947 N.E.2d 1033, 1038 (Ind. Ct. App.
2011), trans. denied.
II. Inappropriate Sentence
A. Nature of the Offense
[8] On appeal, Richey asserts that Beno v. State, 581 N.E.2d 922 (Ind. 1991), and its
progeny prohibit a trial court from imposing consecutive sentences for her two
convictions.
[9] In Beno, the defendant was convicted of two counts of dealing in cocaine and
one count of maintaining a common nuisance after two controlled buys at his
house—occurring just four days apart—and the trial court ordered him to serve
Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 5 of 13
consecutive sentences on the three counts. On transfer, our supreme court
explained:
Beno was convicted of committing virtually identical crimes
separated by only four days. Most importantly, the crimes were
committed as a result of a police sting operation. As a result of
this operation, Beno was hooked once. The State then chose to
let out a little more line and hook Beno for a second offense.
There is nothing that would have prevented the State from
conducting any number of additional buys and thereby hook
Beno for additional crimes with each subsequent sale. We
understand the rationale behind conducting more than one buy
during a sting operation, however, we do not consider it
appropriate to then impose maximum and consecutive sentences
for each additional violation. If Beno, for instance, had sold
drugs to different persons, or if he had provided a different type
of drug during each buy, the consecutive sentences imposed
might seem more appropriate. Here, however, because the
crimes committed were nearly identical State-sponsored buys,
consecutive sentences were inappropriate.
Id. at 924. The court then revised the defendant’s sentence from consecutive
terms to concurrent terms. Id.
[10] Next, in Gregory v. State, 644 N.E.2d 543 (Ind. Ct. App. 1994), a confidential
informant purchased a total of forty-two grams of cocaine in four different
transactions over a ten-day period. After a jury found the defendant guilty of
four counts of delivery of more than three grams of cocaine, all Class A
felonies, the trial court imposed consecutive sentences for an aggregate term of
120 years. On transfer, our supreme court explained:
Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 6 of 13
As in Beno, Gregory sold the same drug to the same informant on
several occasions over a short period of time. Presumably, the
police could have set up any number of additional transactions,
each time adding an additional count against Gregory. While
the police may find it necessary to conduct a series of buys, the
trial court should be leery of sentencing a defendant to
consecutive terms for each count. We hold that on these facts, a
sentence of 120 years was inappropriate.
Id. at 546.
[11] Although Beno opined that if the defendant “had provided a different type of
drug during each buy, the consecutive sentences imposed might seem more
appropriate,” 581 N.E.2d at 924, we identified this statement as dicta in
Hendrickson v. State, 690 N.E.2d 765, 767 (Ind. Ct. App. 1998). There, police
conducted five controlled buys over a period of two months in which the
defendant sold marijuana, methadone, and two different legend drugs. After
the trial court imposed consecutive sentences, we revised the sentences to
concurrent terms on appeal. Id. In so doing, we explained, “the purpose of
Beno in prohibiting consecutive sentences when the police entice additional
drug buys, applies whether or not different drugs are involved. Therefore, we
conclude that the holding in Beno is applicable even if the defendant provides a
different type of drug during additional buys.” Id.
[12] What’s more, in Williams v. State, we held that the principle that “the State may
not ‘pile on’ sentences by postponing prosecution in order to gather more
evidence . . . applies equally to convictions arising from evidence gathered as a
direct result of the State-sponsored criminal activity.” 891 N.E.2d 621, 635
Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 7 of 13
(Ind. Ct. App. 2008). And, more recently, our supreme court took the same
approach in holding that consecutive sentences were inappropriate where
controlled buys led to a search and additional drug-related convictions.
Eckelbarger v. State, 51 N.E.3d 169 (Ind. 2016). In Eckelbarger, an informant
purchased methamphetamine from the defendant twice in the period of one
week and police then used the evidence of the controlled buys to obtain and
execute a search warrant on the defendant’s residence. The former resulted in
two counts of dealing in methamphetamine (by delivery), both Class B felonies
(Counts I and II), while the latter resulted in one count of dealing in
methamphetamine (by manufacture), a Class B felony (Count III), and one
count of possession of precursors with intent to manufacture
methamphetamine, a Class D felony (Count IV). The trial court imposed
sixteen-year sentences on Counts I and II to be served concurrently, as well as a
sixteen-year sentence on Count III and a three-year sentence on Count IV to be
served concurrent with Count III. The sentences for Counts I and II were then
ordered to be served consecutive to Counts III and IV, for an aggregate
sentence of thirty-two years, with eight suspended to probation. On transfer,
our supreme court cited Gregory for the proposition that “[c]onsecutive
sentences are not appropriate when the State sponsors a series of virtually
identical offenses,” and revised the defendant’s sentence so that all four counts
ran concurrently. Eckelbarger, 51 N.E.3d at 170.
[13] Similar to the defendants in Beno, Gregory, and Hendrickson, Richey was enticed
by the police to make an additional sale as part of a sting operation. And,
Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 8 of 13
notably, the drug buys involved here occurred only one day apart—even closer
in temporal proximity than the four days at issue in Beno, 581 N.E.2d at 923,
the ten days at issue in Gregory, 644 N.E.2d at 544, or the two-month period in
Hendrickson, 690 N.E.2d at 766. To this point, the State seems to acknowledge
the factual similarities with Beno and Gregory, but argues that Richey’s crimes
were “materially distinct,” and that Richey’s “subsequent sale of heroin . . . was
a grave escalation in her illegal trafficking.” Brief of the Appellee at 10-11.
However, the State’s argument is premised on the fact that two different drugs
were involved, while failing to so much as acknowledge our decision in
Hendrickson, let alone distinguish it.
[14] Moreover, to the extent the State argues that the sale of heroin constituted a
“grave escalation in [Richey’s] illegal trafficking,” it was Detective Moore who
solicited a different drug, rather than it being Richey who offered it. Although
that, of course, by no means diminishes Richey’s culpability for the underlying
crime, allowing the State to utilize such a loophole would effectively eviscerate
the well-established prohibition on stacking sentences for separate drug deals
resulting from the same police sting operation. That prohibition applies
whether the aggregate sentence is 120 years, as in Gregory, or six years, as in this
case. Therefore, we find the State’s argument unpersuasive and conclude that
the trial court’s imposition of consecutive sentences, on these facts, was
inappropriate.
Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 9 of 13
B. Character of the Offender
[15] Richey also argues that her character rendered her sentence inappropriate.
The “character of the offender” portion of the standard refers to
the general sentencing considerations and the relevant
aggravating and mitigating circumstances. We assess the trial
court’s recognition or non-recognition of aggravators and
mitigators as an initial guide to determining whether the sentence
imposed was inappropriate.
Reis v. State, 88 N.E.3d 1099, 1104-05 (Ind. Ct. App. 2017) (citations omitted).
[16] Here, the trial court found two aggravating circumstances, Richey’s criminal
history and history of probation violations, but no mitigating circumstances.
Based on those findings, the trial court determined Richey was not a candidate
for probation.
[17] On appeal, Richey minimizes her criminal history, arguing that she is now fifty-
two years old with only one felony conviction. However, Richey’s
misdemeanor record is extensive, dating back over thirty years with a sharp
increase in criminal conduct around 2010. And, as we often emphasize,
“[e]ven a minor criminal record reflects poorly on a defendant’s character.”
Reis, 88 N.E.3d at 1105. Nevertheless, as discussed above, we conclude these
offenses dictate the imposition of concurrent—not consecutive—sentences.
Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 10 of 13
Conclusion
[18] The nature of Richey’s crimes rendered the imposition of consecutive sentences
inappropriate. We therefore reverse Richey’s sentence and remand for the trial
court to issue a new sentencing order consistent with this opinion.
[19] Reversed and remanded.
Najam, J., concurs.
Altice, J., dissents with opinion.
Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 11 of 13
IN THE
COURT OF APPEALS OF INDIANA
Connie D. Richey,
Appellant-Defendant, Court of Appeals Case No.
03A01-1710-CR-2404
v.
State of Indiana,
Appellee-Plaintiff.
Altice, Judge, dissenting.
[20] I believe that the extraordinary relief of appellate sentence revision is not
warranted in this case and, therefore, I dissent. Although the convictions both
arose from State-sponsored buys that were close in time, I agree with the State
that the offenses were materially distinct in that the subsequent sale of heroin
was a significant escalation of Richey’s illegal drug trafficking. Further, I do
not agree with Hendrickson v. State, 690 N.E.2d 765, 767 (Ind. Ct. App. 1998),
trans. not sought, to the extent that it concludes the sale of different drugs during
each buy cannot weigh into our sentencing analysis. In both Gregory and Beno,
our Supreme Court emphasized that the defendant sold the same drug to the
same informant during each buy resulting in virtually identical State-sponsored
Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 12 of 13
buys. Gregory v. State, 644 N.E.2d 543, 544-46 (Ind. 1994); Beno v. State, 581
N.E.2d 922, 924 (Ind. 1991).
[21] Moreover, in this case, Richey received an aggregate sentence of only six years,
which amounts to the maximum sentence she faced for her Level 5 felony
conviction alone. This is a far cry from the 100-year sentence in Beno and the
120-year sentence in Gregory found inappropriate.
Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2404 | June 8, 2018 Page 13 of 13