MEMORANDUM DECISION FILED
Jun 13 2018, 10:05 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
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
Stanley L. Campbell Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Andrea K. Brown, June 13, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-31
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D04-1709-F6-1082
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-31 | June 13, 2018 Page 1 of 6
Case Summary
[1] Andrea K. Brown appeals her two concurrent two-year sentences for possession
of cocaine or a narcotic drug and possession of a hypodermic syringe or needle,
as Level 6 felonies. We affirm.
Issue
[2] The sole issue before us is whether Brown’s sentence is inappropriate in light of
the nature of her offenses and her character.
Facts
[3] On September 19, 2017, as Fort Wayne police officers executed a search
warrant for a residence, a vehicle pulled into the driveway. The occupants gave
conflicting explanations for their presence at the scene. The police asked to
check the vehicle occupants’ identification, and Brown consented to a search of
her wallet. An officer opened her purse to remove her wallet and saw four used
syringes, charred spoons, and a plastic baggie with residue that was later
determined to be heroin.
[4] On September 25, 2017, the State charged Brown with possession of cocaine or
a narcotic drug and possession of a hypodermic syringe or needle, as Level 6
felonies. Brown pled guilty pursuant to a plea agreement on October 16, 2017.
She waived her right to sentencing within thirty days, and she was enrolled in
the drug court program. She was referred to an inpatient program, Park Center,
where staff learned of her heroin addiction.
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[5] Approximately five days after she was placed in Park Center, Brown committed
“severe and serious rule violations.” Tr. Vol. II p. 26. On November 6, 2017,
the State filed a verified petition to revoke Brown’s participation in the drug
court program because she had failed to comply with Park Center’s rules and
admitted to using heroin while residing at the facility. The State also alleged
that Brown possessed urine or a lookalike substance to interfere with urine drug
screens. At a hearing that same day, Brown admitted to the allegations. The
trial court revoked her participation in the drug court program.
[6] At Brown’s sentencing hearing on December 6, 2017, the trial court found, as
mitigating, Brown’s guilty plea, acceptance of responsibility, and expression of
remorse. Addressing Brown directly, the trial court also found the following
aggravating circumstances:
. . . [Y]our juvenile and adult criminal record, covering a period
of time from 2011 to 2017, where you’ve had three adjudications
as a juvenile with probation, drug counseling, community
service, and residential placement, in addition to additional
treatment. As an adult, you’ve got one misdemeanor and one
prior felony conviction. You’ve been given the benefit of adult
probation and the Drug Court Program and you were on
probation at the time you committed these offenses.
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Id. at 29-30. The trial court imposed two concurrent two-year sentences for
possession of cocaine or a narcotic drug and possession of a hypodermic syringe
or needle, as Level 6 felonies.1 Brown now appeals.
Analysis
[7] Brown contends that her sentence is inappropriate and invites us to reduce it
pursuant to Indiana Appellate Rule 7(B), which provides that we may revise a
sentence authorized by statute if, after due consideration of the trial court’s
decision, we find that the sentence “is inappropriate in light of the nature of the
offense and the character of the offender.” 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). Indiana’s flexible sentencing scheme
allows trial courts to tailor an appropriate sentence to the circumstances
presented, and the trial court’s judgment “should receive considerable
deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). The principal
role of appellate review is to attempt to “leaven the outliers.” Id. at 1225.
Whether we regard a sentence as inappropriate at the end of the day turns on
“our sense of the culpability of the defendant, the severity of the crime, the
damage done to others, and myriad other facts that come to light in a given
case.” Id. at 1224.
1
The trial court ordered Brown’s sentences served consecutively to her sentence in another cause.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-31 | June 13, 2018 Page 4 of 6
[8] We consider all aspects of the penal consequences imposed by the trial court in
sentencing the defendant, including whether a portion of the sentence is ordered
suspended “or 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). In conducting our review, we do not look to see whether the defendant’s
sentence is appropriate or “if another sentence might be more appropriate;
rather, the question is whether the sentence imposed is inappropriate.” Fonner
v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007).
[9] The sentence for a Level 6 felony ranges from six months to two and one-half
years, with an advisory sentence of one year. Here, the trial court imposed two
concurrent two-year sentences for Brown’s convictions for possession of
cocaine or a narcotic drug and possession of a hypodermic syringe or needle, as
Level 6 felonies.
[10] As to the nature of her offenses, Brown—an admitted heroin addict—possessed
heroin, a syringe, and drug paraphernalia while she was on probation for
unlawful possession of a syringe. As regards her character, Brown’s refusal to
address her addiction issues and to conform her conduct reflects very poorly on
her character. The instant drug court violation resulted from her heroin use,
while she was enrolled in the drug court program, and while she resided in the
Park Center facility, thereby violating the terms of her drug court program
participation. She also possessed urine or a lookalike substance intended to
interfere with urine drug screening. Her prior criminal history includes
Court of Appeals of Indiana | Memorandum Decision 18A-CR-31 | June 13, 2018 Page 5 of 6
possession of a legend drug injection device, possession of paraphernalia, and
unlawful possession of a syringe.
[11] We acknowledge the uphill battle inherent in living with addiction, but we must
also note that Brown has been afforded multiple chances by our criminal justice
system to reform her behavior and to treat her substance abuse issues. She has
failed to take advantage of those opportunities, including the failed attempt at
drug court. Under the circumstances, she has not convinced us that her
sentence is inappropriate in light of the nature of the offenses or her character.
Conclusion
[12] Brown’s sentence is not inappropriate in light of the nature of her offenses and
her character. We affirm.
[13] Affirmed.
Vaidik, C.J., and Pyle, J., concur.
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