MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Dec 14 2017, 9:28 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeremy K. Nix Curtis T. Hill, Jr.
Huntington, Indiana Attorney General of Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Paula S. Black, December 14, 2017
Appellant-Defendant, Court of Appeals Case No.
35A02-1705-CR-1173
v. Appeal from the Huntington
Superior Court
State of Indiana, The Honorable Jennifer E.
Appellee-Plaintiff. Newton, Judge
Trial Court Cause No.
35D01-1610-F3-211
Barnes, Judge.
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Case Summary
[1] Paula Black appeals her sentence for Level 3 felony dealing in a schedule II
controlled substance and Level 4 felony dealing in a schedule II controlled
substance. We reverse and remand.
Issues
[2] Black raises two issues, which we restate as:
I. whether the trial court abused its discretion when it
sentenced her; and
II. whether her sentence is inappropriate.
Facts
[3] On December 21, 2015, and January 18, 2016, Black sold methyphenidate
hydrochloride (Ritalin) in her home to a confidential informant. During the
January 18th incident, a six-year-old child that lived with Black walked through
the room during the transaction. Both transactions were videotaped. In October
2016, the State charged Black with Level 3 felony dealing in a schedule II
controlled substance for dealing methylphenidate in the presence of a child and
Level 4 felony dealing in a schedule II controlled substance for dealing
methylphenidate. As a term of pre-trial release, Black was placed on house arrest
through community corrections. On April 26, 2017, the State filed a petition to
revoke Black’s placement in community corrections because it alleged that she
was absent from her home at an unauthorized time.
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[4] The State offered a plea agreement with a fixed sentence to Black, but she rejected
the agreement and pled guilty as charged without a plea agreement so that the
trial court could determine her sentence. The trial court sentenced Black to serve
fourteen years with five years suspended to probation on the Level 3 felony
conviction and eight years on the Level 4 felony conviction. The trial court
ordered the sentenced to be served concurrently. Black now appeals.
Analysis
I. Abuse of Discretion
[5] Black argues that the trial court abused its discretion when it sentenced her.
Sentencing decisions are within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218. However, a trial court may be found to have abused its sentencing
discretion in a number of ways, including: (1) failing to enter a sentencing
statement at all; (2) entering a sentencing statement that explains reasons for
imposing a sentence where the record does not support the reasons; (3) entering
a sentencing statement that omits reasons that are clearly supported by the
record and advanced for consideration; and (4) entering a sentencing statement
in which the reasons given are improper as a matter of law. Id. at 490-91. The
reasons or omission of reasons given for choosing a sentence are reviewable on
appeal for an abuse of discretion. Id. at 491. The weight given to those reasons,
i.e. to particular aggravators or mitigators, is not subject to appellate review. Id.
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[6] Black argues that the trial court improperly failed to identify her guilty plea,
remorse, and undue hardship upon a dependent as significant mitigating
circumstances. A trial court is not obligated to accept a defendant’s claim as to
what constitutes a mitigating circumstance. Rascoe v. State, 736 N.E.2d 246, 249
(Ind. 2000). A claim that the trial court failed to find a mitigating circumstance
requires the defendant to establish that the mitigating evidence is both
significant and clearly supported by the record. Anglemyer, 868 N.E.2d at 493.
[7] We first address whether the trial court abused its discretion by failing to
consider Black’s remorse as a mitigating factor. Our supreme court has held
that a trial court’s determination of a defendant’s remorse is similar to a
determination of credibility. Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002).
Without evidence of some impermissible consideration by the trial court, we
will accept its determination as to remorse. See id. Although Black expressed
remorse during the sentencing hearing, it was within the trial court’s discretion
to determine the credibility of that remorse. Our review of the evidence does
not demonstrate an impermissible consideration by the trial court, and we
cannot say that the trial court abused its discretion with respect to Black’s
remorse as a mitigating factor.
[8] Black also argues that the trial court should have considered undue hardship
upon a dependent as a significant mitigating circumstance. The evidence
showed that a six-year-old child had been living with Black since she was a
toddler. The child’s mother is incarcerated for selling drugs out of Black’s
home, and her father is a convicted sex offender. Black argues that she cared
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for the child, but there was evidence presented at the sentencing hearing that
Black’s son, sister, and other friends often provided for the child and that the
child often cared for herself. The trial court commented on the situation and
noted that a six-year-old child “shouldn’t be taking care of themselves.” Tr. p.
105. Given this evidence, the trial court did not abuse its discretion when it did
not consider undue hardship on a dependent as a mitigating circumstance.
[9] We next address whether the trial court abused its discretion by failing to
identify her guilty plea as a mitigating circumstance. A guilty plea is not
necessarily a mitigating factor where the defendant receives substantial benefit
from the plea or where evidence against the defendant is so strong that the
decision to plead guilty is merely pragmatic. Amalfitano v. State, 956 N.E.2d
208, 212 (Ind. Ct. App. 2011), trans. denied. Here, Black’s offenses were
videotaped, and her guilty plea was merely pragmatic. The trial court did not
abuse its discretion.1
II. Inappropriate Sentence
[10] Black argues that her fourteen-year sentence is inappropriate under Indiana
Appellate Rule 7(B). Appellate Rule 7(B) provides that we may revise a
sentence authorized by statute if, after due consideration of the trial court’s
1
Even if the trial court erred by failing to consider Black’s guilty plea as a mitigator, when the trial court
abuses its discretion in sentencing, “we have the option to remand to the trial court for a . . . new sentencing
determination,” or “we may exercise our authority to review and revise the sentence” under Indiana
Appellate Rule 7(B). Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007). We have determined in this case
that Black’s sentence is inappropriate, and we revise it under Indiana Appellate Rule 7(B).
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decision, we find that the sentence is inappropriate in light of the nature of the
offenses and the character of the offender. When considering whether a
sentence is inappropriate, we need not be “extremely” deferential to a trial
court’s sentencing decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.
App. 2007). Still, we must give due consideration to that decision. Id. We also
understand and recognize the unique perspective a trial court brings to its
sentencing decisions. Id. Under this rule, the burden is on the defendant to
persuade the appellate court that his or her sentence is inappropriate. Childress
v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[11] The principal role of Rule 7(B) review “should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). We “should focus on the forest—the aggregate sentence—rather than
the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id. When reviewing the appropriateness of
a sentence under Rule 7(B), we may consider all aspects of the penal
consequences imposed by the trial court in sentencing the defendant, including
whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d
1023, 1025 (Ind. 2010).
[12] Black was convicted of a Level 3 felony and a Level 4 felony. The advisory
sentence for a Level 3 felony is nine years with a sentencing range of three to
sixteen years. The advisory sentence for a Level 4 felony is six years with a
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sentencing range of two to twelve years. Here, the trial court sentenced Black
to fourteen years with five years suspended to probation for the Level 3 felony
concurrent with an eight-year sentence for the Level 4 felony. Black requests
that we reduce her sentence.
[13] The nature of the offense is that, on two occasions, Black sold methyphenidate
hydrochloride (Ritalin) in her home to a confidential informant. On one of the
occasions, a six-year-old child that lived with Black walked through the room
during the transaction.
[14] As for the character of the offender, forty-six-year-old Black has a minimal
criminal history. As a juvenile, Black had adjudications for battery and minor
in consumption of alcohol. As an adult, Black has several older misdemeanor
convictions, including a 1989 conviction for battery, a 1991 conviction for theft,
a 1991 conviction for conversion, and a 2006 conviction for false informing.
Black pled guilty as charged in this case. While Black was on pre-trial home
detention, she had a pass to be out of her home from 9:00 a.m. to 12:00 p.m. to
attend the funeral of a family member. However, she violated her pre-trial
detention because she was seen driving at 8:37 a.m. that morning. We also
acknowledge the police officer’s testimony at the sentencing hearing that the
police department had been hearing rumors for years of Black dealing
prescription drugs from her house. However, Black’s sentence in this case
cannot be based on mere rumors.
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[15] We acknowledge that Black has severe health issues. After she was placed on
home detention and others were not allowed to visit her home, she arranged for
home health care assistance several days a week. She cannot cook, wash
dishes, shop for groceries and requires assistance bathing herself and using the
restroom. Prior to her arrest, Black’s adult son, sisters, and friends cared for
her. Six-year-old M.F. has lived with Black for the majority of M.F.’s life. She
lived with Black because M.F.’s mother is incarcerated for dealing drugs in
Black’s home in front of M.F. in early December 2015 and her father is a sex
offender.
[16] Although we cannot say the trial court abused its discretion by failing to find
Black’s proposed mitigating factors, given the circumstances here, including
Black’s guilty plea and relatively minor criminal history, we choose to exercise
our authority to revise Black’s sentence. Black had asked for the imposition of
the nine-year advisory sentence, and we find that sentence appropriate here.
We revise the sentence for Black’s Level 3 felony conviction to the advisory
sentence of nine years with four years suspended to probation. We revise the
sentence for the Level 4 felony conviction to the advisory sentence of six years
with one year suspended to probation. We order the sentences to be served
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concurrently for an aggregate sentence of nine years with four years suspended
to probation.2
Conclusion
[17] We conclude that, although the trial court did not abuse its discretion when it
sentenced Black, her fourteen-year sentence is inappropriate. Consequently, we
revise the sentence to an aggregate sentence of nine years with four years
suspended to probation. We reverse and remand.
[18] Reversed and remanded.
May, J., and Bradford, J., concur.
2
We also note that the concurrent sentences imposed here were required by Beno v. State, 581 N.E.2d 922,
924 (Ind. 1991), which required concurrent sentences where the defendant was convicted of “virtually
identical crimes separated by only four days” as part of a “police sting operation” for dealing drugs.
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Paula S. Black v. State of Indiana (mem. dec.)
Combined Opinion