MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Dec 21 2018, 10:53 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jane Ann Noblitt Curtis T. Hill, Jr.
Columbus, Indiana Attorney General of Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Debin Paige Gabbard, December 21, 2018
Appellant-Defendant, Court of Appeals Cause No.
18A-CR-1618
v.
Appeal from the
State of Indiana, Bartholomew Superior Court
Appellee-Plaintiff. The Honorable James D.
Worton, Judge
Trial Court Cause No.
03D01-1710-F2-5616 &
03D01-1802-F5-733
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Debin Gabbard (Gabbard), appeals her sentence
following her guilty plea to dealing in methamphetamine, a Level 3 felony, Ind.
Code §§ 35-48-4-1.1(a)(2), (d)(2); and dealing in methamphetamine, a Level 5
felony, I.C. § 35-48-4-1.1(a)(1).
[2] We affirm.
ISSUES
[3] Gabbard presents two issues on appeal, which we restate as:
(1) Whether the trial court abused its discretion when it
sentenced Gabbard; and
(2) Whether Gabbard’s sentence is inappropriate in light of the
nature of her offenses and her character.
FACTS AND PROCEDURAL HISTORY
[4] In the fall of 2017, law enforcement made two controlled buys of heroin from
Gabbard and her boyfriend at their home in Columbus, Indiana. The buys
were made with different confidential informants, both of whom had contacted
the authorities with the information that it was possible to purchase heroin from
Gabbard and her boyfriend. On October 4, 2017, based on the controlled buys,
officers obtained and executed a search warrant on Gabbard’s home. Gabbard,
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who was able to see officers approaching her home to execute the search
warrant, secreted quantities of methamphetamine and heroin inside her vagina.
When Officers searched Gabbard’s home approximately twenty-eight grams of
methamphetamine, a handgun, a scale, and plastic sandwich bags commonly
used to package drugs were found.
[5] Gabbard was arrested on multiple charges and was taken into custody. While
being held at the Bartholomew County Jail, Gabbard removed the
methamphetamine and heroin from her vagina and provided the
methamphetamine to fellow inmate Mary Snyder (Snyder) in exchange for
credits at the jail commissary. Snyder, in turn, placed the methamphetamine in
a bottle of hair conditioner which was later retrieved by inmate Angela Blair
(Blair). Blair died in jail during the evening of October 7, 2017, of
methamphetamine intoxication.
[6] On October 11, 2017, the State filed an Information in Cause Number 03D01-
1710-F2-5616 (Cause -5616), charging Gabbard with dealing in
methamphetamine, as a Level 2 felony; possession of methamphetamine, as a
Level 3 felony; and two Counts of dealing in a narcotic drug, both as Level 5
felonies for the drugs found in her home. On February 8, 2018, the State filed
an Information in Cause Number 03D01-1802-F5-733 (Cause -733), charging
Gabbard with dealing in methamphetamine, a Level 5 felony; trafficking with
an inmate in a controlled substance, a Level 5 felony; possession of a narcotic
drug, a Level 6 felony; and possession of methamphetamine, a Level 6 felony,
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for the offenses she committed while being held in jail on the Cause -5616
charges.
[7] On May 14, 2018, Gabbard pleaded guilty to dealing in methamphetamine as a
Level 3 felony in Cause -5616. Gabbard also pleaded guilty to dealing in
methamphetamine as a Level 5 felony in Cause -733. Pursuant to an agreement
with the State, all other charges were dismissed.
[8] On June 1, 2018, the State filed its pre-sentence investigation report (PSI) which
revealed that Gabbard had two juvenile adjudications, one in 2003 for alcohol
possession and one in 2007 for battery. She received probation for each of
those adjudications. As an adult, Gabbard had a 2010 conviction for illegal
alcohol possession for which she received probation. In 2015, Gabbard pleaded
guilty to Class D felony possession of a controlled substance. She received a
one-year sentence which was suspended to time-served and probation. Less
than four months later, the State filed a petition to revoke Gabbard’s probation
based upon her testing positive for methamphetamine and heroin. The trial
court revoked Gabbard’s probation, and she served 175 days in jail. While she
was being held on the instant cases, the State filed an Information, charging
Gabbard with conversion.
[9] Gabbard reported to her PSI investigator that she and her boyfriend used some
of the money they earned dealing drugs to support themselves. Gabbard
reported doing cleaning work in addition to dealing drugs. Gabbard had no
other verifiable employment for the previous two years. She also reported that
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Snyder gave the methamphetamine to Blair and that it was “Mary’s fault” that
Blair died. (Confidential App. Vol. III, p.7). Gabbard felt that “Mary killed her
because she gave it to her.” (Conf. App. Vol. III, p. 7). Gabbard had lost
contact with her adoptive mother because of her drug use.
[10] Gabbard reportedly began abusing heroin and methamphetamine at the age of
twenty-three, which she attributed to hanging around with the wrong crowd.
Gabbard started by snorting and smoking drugs, but later she began injecting
them. Gabbard sought treatment at the Indiana Treatment Center on one
occasion. She was prescribed methadone but ceased attending treatment after
approximately four weeks. Gabbard was attending Celebrate Recovery pending
resolution of her cases.
[11] On June 12, 2018, the trial court held Gabbard’s sentencing hearing. Gabbard
was twenty-eight years old at the time of her sentencing. Gabbard maintained
repeatedly at her sentencing hearing that she had never sold any drugs. Rather,
she claimed that she gave drugs away to her friends without accepting payment
in order to support her drug habit. Gabbard testified that hiding the drugs in
her vagina was not planned and that it “just happened.” (Transcript Vol. II, p.
24). Gabbard further testified that she brought the drugs into jail to avoid
withdrawal symptoms, but she also maintained that she never used any of the
drugs for that purpose. Gabbard stated that she felt responsible for Blair’s death
even though she did not directly hand Blair the methamphetamine and that “if I
had never brung [sic] that it [sic] she would still probably be here.” (Tr. Vol. II,
p. 25).
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[12] Gabbard’s counsel argued that Gabbard’s lack of criminal record and her need
for treatment merited a reduced sentence. He also argued that Gabbard “does
feel responsible for [Blair’s] passing, because clearly if she hadn’t brought the
stuff in, [Snyder] wouldn’t have taken it.” (Tr. Vol. II, p. 38). The trial court
found Gabbard’s statement that she was only dealing to support her habit to
lack credibility, which the trial court believed indicated that Gabbard did not
take responsibility for her actions.
[13] In its written sentencing order, the trial court found, in relevant part, as follows:
The Court finds no mitigating circumstances. The Court
finds the following aggravating circumstances in cause number
03DOl-1802-F5-733 and O3DOl-l7lO-F2-5616:
1. The defendant has a history of criminal or delinquent
behavior.
2. The defendant has been on probation in the past and has
been revoked.
3. The defendant has had opportunity for treatment outside
of a penal facility and has been unsuccessful.
The Court finds the following aggravating circumstance in
only cause number 03DOl-1802-F5-733:
4. A person died “in part” as a result of defendant’s
actions.
(Appellant’s App. Vol. II, p. 56). The trial court sentenced Gabbard to fifteen
years with the Indiana Department of Correction for the Level 3 felony dealing
offense and to six years for the Level 5 felony offense, to be served
consecutively, for an aggregate sentence of twenty-one years.
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[14] Gabbard now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Abuse of Discretion
[15] Gabbard contends that the trial court abused its discretion when it found as an
aggravating circumstance that Blair died in part because of Gabbard’s actions.
So long as a sentence imposed by a trial court is within the statutory range for
the offense, it is subject to review only for an 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). An abuse of the trial court’s sentencing discretion occurs if its 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. A trial court abuses its discretion when it fails to enter a
sentencing statement at all, its stated reasons for imposing sentence are not
supported by the record, its sentencing statement omits reasons that are clearly
supported by the record and advanced for consideration, or its reasons for
imposing sentence are improper as a matter of law. Id. at 490-91.
[16] Gabbard acknowledges on appeal that her sentence is within the statutory
guidelines for the offenses. However, Gabbard argues that the trial court
abused its discretion because she did not plead guilty to causing Blair’s death
and no evidence in the record established a direct line of culpability to her for
Blair’s death. We begin by noting that the trial court found the challenged
aggravating circumstance only as to the jailhouse dealing in methamphetamine
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conviction in Cause -733. Therefore, we conclude that Gabbard raises no abuse
of discretion claim pertaining to her sentence for her other dealing conviction in
Cause -5616.
[17] The gravamen of Gabbard’s argument is that the challenged aggravating
circumstance was not supported by the record. However, there was evidence
before the trial court that Gabbard admitted giving the methamphetamine to
Snyder and that Gabbard reported that Snyder hid it in a conditioner bottle.
Video surveillance footage from the jail substantiated Gabbard’s account and
showed Snyder placing a conditioner bottle on the floor of her cell and Blair
later picking up the same bottle and taking it with her to her bed. Blair died the
next day of methamphetamine intoxication. Gabbard acknowledged at her
sentencing hearing that she felt responsible for Blair’s death and that if she had
not brought the methamphetamine into the jail, Blair would still be alive.
Gabbard’s counsel also argued at sentencing that Gabbard felt responsible for
her part in causing Blair’s death. Given this evidence and argument, we cannot
say that the trial court’s aggravating circumstance was unsupported by the
record or that it was clearly against the logic and effect of the facts and
circumstances before the court. Anglemyer v. State, 868 N.E.2d at 490-91.
[18] However, even if the trial court had abused its discretion when it found as an
aggravating circumstance that Gabbard was at least in part responsible for
Blair’s death, we would still affirm the trial court’s sentence. The finding of
even one valid aggravating circumstance is sufficient to impose both an
aggravated sentence and consecutive sentences. Gleason v. State, 965 N.E.2d
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702, 712 (Ind. Ct. App. 2012). Here, the trial court found three other
aggravating circumstances applicable to Gabbard’s conviction for the jailhouse
dealing offense, namely her criminal record, the fact that Gabbard had her
probation revoked in the past, and that she had the opportunity for treatment
outside of a penal facility but had been unsuccessful. Gabbard does not
challenge the validity of these additional aggravating circumstances, and,
therefore, we conclude that her argument fails for the additional reason that
those aggravating circumstances justified the sentence imposed by the trial
court.
II. Appropriateness of Sentence
[19] Gabbard also contends that her sentence is inappropriate given the nature of her
offenses and her character. The Indiana Constitution and Indiana Appellate
Rule 7(B) permit an appellate court to revise a sentence if, after due
consideration of the trial court’s decision, the sentence is found to be
inappropriate in light of the nature of the offense and the character of the
offender. Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018). “The principal role
of such review is to attempt to leaven the outliers.” Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008). The defendant bears the burden to persuade the
reviewing court that the sentence imposed is inappropriate. Robinson, 91
N.E.3d at 577.
[20] Gabbard pleaded guilty to Level 3 and Level 5 felony dealing in
methamphetamine. The sentencing range for a Level 3 felony is from three to
sixteen years, with nine years being the advisory sentence. I.C. § 35-50-2-5(b).
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The sentencing range for a Level 5 felony is from one to six years, with three
years being the advisory sentence. I.C. § 35-50-2-6(b). Here, the trial court
imposed a fifteen-year sentence for the Level 3 felony conviction and a six-year
sentence for the Level 5 felony conviction, to be served consecutively. Thus,
the trial court’s sentence represents the near-maximum permitted for the
offenses.
[21] Gabbard has little to argue regarding the nature of her offenses apart from her
contention that her “intentions in the actions she took were to support her own
habit, not to profit financially.” (Appellant’s Br. p. 15). However, this
contention is belied by evidence in the record that she accepted money from the
confidential informants during the controlled buys and that she and her
boyfriend used some of the profits from their drug dealing to support
themselves. In addition, Gabbard brought drugs into the jail and continued to
deal drugs even as she was being held on drug dealing charges. As a result of
her drug dealing in jail, Blair died of methamphetamine intoxication. In light
of these circumstances, we conclude that Gabbard has not met her burden to
persuade us that her sentence is inappropriate given the nature of her offenses.
Robinson, 91 N.E.3d at 577.
[22] As to her character, we note that Gabbard had two contacts with the juvenile
justice system and one previous felony conviction for a drug offense as an adult.
Gabbard has received the benefit of suspended sentences, probation, and an
executed sentence after her probation revoked on one occasion for testing
positive for drug use. Gabbard also had a conversion charge pending at the
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time of sentencing. Although Gabbard’s criminal history is not the most severe
we have encountered, we do not conclude that it renders her sentence
inappropriate.
[23] In addition, despite the negative impact it has had on her life, Gabbard has
failed to address her drug addiction, which has escalated from snorting and
smoking to intravenous use. There is no evidence in the record that Gabbard
has sought assistance for her drug use apart from one failed attempt at the
Indiana Treatment Center at some unspecified time in the past. While we
commend Gabbard for her apparent attempt to address her substance abuse
pending the resolution of her case, we do not find that these late-breaking
efforts render her sentence inappropriate.
[24] Gabbard contends that her sentence is inappropriate because she demonstrated
remorse for her offenses that the trial court did not credit. However, although
Gabbard pleaded guilty to the two dealing offenses, she received a great benefit
for her plea in that the State agreed to dismiss the six remaining felony charges
pending against her. In addition, Gabbard maintained at her sentencing
hearing that she had not actually sold any drugs when she dealt, an
equivocation which the trial court justly found demonstrated that she had not
truly accepted responsibility for the offenses. Gabbard also thought that
smuggling drugs into jail was something that “just happened,” which we
conclude demonstrated a lack of insight into the gravity of the offense. (Tr.
Vol. II, p. 24). In light of her criminal history, unaddressed substance abuse,
the substantial benefit Gabbard received from her plea, and her equivocation at
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her sentencing hearing, we conclude that Gabbard has failed to demonstrate
that her sentence is inappropriate given her character. Robinson, 91 N.E.3d at
577.
CONCLUSION
[25] Based on the foregoing, we conclude that the trial court did not abuse its
discretion when it sentenced Gabbard and that her sentence is not inappropriate
given the nature of her offenses and her character.
[26] Affirmed.
[27] Kirsch, J. and Robb, J. concur
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