MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                  Feb 26 2016, 8:42 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
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
P. Stephen Miller                                        Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana

                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Camille R. Fincher,                                      February 26, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1505-CR-508
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D04-1405-FD-587



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-508 | February 26, 2016   Page 1 of 9
[1]   Camille Fincher appeals the three-year sentence she received for Class D felony

      theft. 1 Because the sentence is not inappropriate and the trial court did not

      abuse its discretion, we affirm.


                                     Facts and Procedural History
[2]   On May 20, 2014, asset protection employees at a Fort Wayne Walmart

      observed Fincher placing $337.14 worth of merchandise into shopping bags she

      had brought into the store and placed inside a cart. She then attempted to exit

      the store without paying for the merchandise and was apprehended by Fort

      Wayne Police officers. Fincher was arrested and transported to the police

      station, where she admitted the attempted theft.


[3]   On May 27, 2014, the State charged Fincher with Class D felony theft. Fincher

      agreed to plead guilty, and her sentence was deferred to allow her to participate

      in the drug court program. Under that program, Fincher was permitted to live

      at home, and agreed to refrain from possessing any alcohol, drug paraphernalia,

      or illegal controlled substances. She also was required to obey all laws,

      maintain good behavior, and immediately notify her case manager if she had

      contact with law enforcement officials.


[4]   Fincher’s participation in the drug court program was unsuccessful. Fincher’s

      first violation occurred in September 2014 when she failed a drug test and was




      1
          Ind. Code § 35-43-4-2(a) (2009).


      Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-508 | February 26, 2016   Page 2 of 9
      given five hours of community service as a sanction. Fincher then was

      compliant with the program for roughly two months. However, on November

      24, 2014, marijuana was found in Fincher’s basement during a home visit. For

      this second violation, Fincher was sanctioned with another five hours of

      community service and required to write an essay. Fincher next failed to

      appear for a drug screening scheduled for December 16, 2014, and was

      sanctioned an additional five hours of community service as a result. Finally,

      on January 16, 2015, a home visit revealed empty beer cans and pill bottles

      containing controlled substances for which Fincher did not have a prescription.

      Fincher had also been spotted driving on a suspended driver’s license. Fincher

      was remanded to jail until placement in transitional living was arranged.


[5]   On February 2, 2015, Fincher was released from custody and assigned to

      Charis House, transitional living center. However, before entering Charis

      House, Fincher committed multiple violations including unauthorized

      prescription medicine use, missed appointments, missed support group

      meetings, and failure to report a police contact. Fincher was ordered to report

      to jail on February 27, 2015, and she was released on March 1, 2015.


[6]   On March 2, 2015, Fincher moved into Charis House with her grandson. By

      April 6, 2015, Fincher was placed on restriction at Charis House pending the

      follow-up of a positive alcohol test she submitted in March. On April 7, 2015,

      Fincher violated her facility behavioral contract by leaving the Charis House

      without permission. Fincher was discharged from the transitional living facility.



      Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-508 | February 26, 2016   Page 3 of 9
[7]    As a result of the discharge, the State filed a petition to terminate Fincher from

       the drug court program. At the sentencing hearing, after hearing evidence and

       arguments regarding sentencing, the trial court found Fincher’s guilty plea a

       mitigating circumstance, but found Fincher’s criminal history and multiple

       failed attempts at rehabilitation from 1981 to 2015 to be significant aggravators.

       The trial court sentenced Fincher to a three-year fully-executed sentence.


                                      Discussion and Decision
                                               Abuse of Discretion


[8]    Because the sentence imposed is within the statutory range, we review the trial

       court’s decision 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

       discretion occurs if the sentencing 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.


[9]    Fincher argues the trial court abused its discretion in sentencing her to three

       years imprisonment. Specifically, Fincher claims the court abused its discretion

       in determining that she had “failed to complete every program in which she had

       been placed and that she had been revoked from every program she had been

       given.” (Appellant’s Br. at 7.) However, Fincher mischaracterizes the trial

       court’s statement and ignores essential parts of the court’s reasoning.


[10]   Fincher points to specific instances where she participated in substance abuse

       treatment programs with no documentation of failure to complete the
       Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-508 | February 26, 2016   Page 4 of 9
       programs. However, the trial court explicitly mentioned these attempts at

       rehabilitation in its decision:

               You’ve had multiple treatment efforts through Richmond State
               Hospital, Park Center, Brown and Associates, the Women’s
               Bureau, Washington House and then through the drug court
               program and you continue your criminal conduct. I’m not sure
               ma’am what else there is that the court can offer.


       (May 13, 2015 Hearing Tr. at 18.) 2 Indeed, the trial court acknowledged

       Fincher’s multiple efforts to complete treatment but noted that none of these

       programs resulted in successful rehabilitation of Fincher.


[11]   The State argues that even if Fincher completed a program, she did not benefit

       therefrom. (Br. of Appellee at 7.) We agree. Fincher has been given the

       benefit of short jail sentences, longer jail sentences, community service,

       electronic monitoring, the community transition program, probation, home

       detention, parole, and the drug court program. Despite the numerous

       opportunities the State has given her to rehabilitate herself, Fincher continues to

       commit additional crimes.


[12]   Fincher’s failure to benefit from past rehabilitation efforts is clearly supported

       by the record. While Fincher may not have failed or been removed from

       “every” rehabilitation program in which she had ever been placed, she certainly




       2
        We note the hindrance caused by the Court Reporter’s failure to number the Transcript pages consecutively
       pursuant to Ind. Appellate Rule 28(A)(2).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-508 | February 26, 2016        Page 5 of 9
       had been removed from every program the court had offered her since she pled

       guilty to the theft for which she was being sentenced. We cannot say that the

       trial court’s decision is clearly against the logic and effect of the facts and

       circumstances. Therefore, the trial court did not abuse its discretion. See, e.g.,

       Smith v. State, 929 N.E.2d 255, 259 (Ind. Ct. App. 2010) (no abuse of discretion

       where record supported trial court’s findings), trans. denied.


                                            Inappropriate Sentence


[13]   Fincher alleges her three-year sentence is inappropriate. We may revise a

       sentence if it is inappropriate in light of the nature of the offense and the

       character of the offender. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App.

       2008) (citing Ind. Appellate Rule 7(B)). We consider not only the aggravators

       and mitigators found by the trial court, but also any other facts appearing in the

       record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied.

       Our review is deferential to the trial court’s decision, and our goal is to

       determine whether Fincher’s sentence is inappropriate, not whether some other

       sentence would be more appropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind.

       2012), reh’g denied.


[14]   When considering the nature of the offense, the advisory sentence is the starting

       point to determine the appropriateness of a sentence. Anglemeyer, 868 N.E.2d at

       494. The advisory sentence for a Class D felony theft is one and a half years,

       with a range of six months to three years. Ind. Code § 35-50-2-7(a) (2014).

       Fincher received a three-year sentence. One factor we consider when


       Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-508 | February 26, 2016   Page 6 of 9
       determining the appropriateness of a deviation from the advisory sentence is

       whether there is anything more or less egregious about the offense committed

       by the defendant that makes it different from the “typical” offense accounted for

       by the legislature when it set the advisory sentence. Rich v. State, 890 N.E.2d

       44, 54 (Ind. Ct. App. 2008), trans. denied.


[15]   Fincher attempted to steal items from Walmart totaling $337.14. She did so by

       placing Walmart shopping bags into a cart and then placing numerous items

       including laundry detergent, DVDs, clothing, shoes, and other items into those

       shopping bags. Fincher passed all points of pay and attempted to exit the store

       without paying for any of these items. This was not a momentary lapse in

       judgment, but an intentional and carefully calculated plan to deprive Walmart

       of its property.


[16]   As for Fincher’s character, one relevant fact is a defendant’s criminal history.

       Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance

       of a criminal history in assessing a defendant’s character varies based on the

       gravity, nature, and number of prior offenses in relation to the current offense.

       Id. Fincher’s criminal history consists of two juvenile delinquency

       adjudications, eighteen misdemeanor convictions, and three felony

       convictions—one of forgery and two of theft.


[17]   Fincher cites Buchanan v. State, 767 N.E.2d 967 (Ind. 2002), for the proposition

       that “a maximum sentence is to be reserved for the worst of the worst.” (Br. of




       Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-508 | February 26, 2016   Page 7 of 9
       Appellant at 9 n.2.) 3 Fincher’s reliance on Buchanan is misplaced. In Buchanan,

       the defendant was convicted of Class A felony child molesting and the trial

       court imposed the maximum sentence of fifty years. Buchanan, 767 N.E.2d at

       969. Our Indiana Supreme Court reduced Buchanan’s sentence from the

       maximum fifty years to forty years, finding Buchanan “[was] not within the

       class of offenders for whom the maximum possible sentence is appropriate.” Id.

       at 974. One of the factors considered by the court was that “the offense was not

       part of a protracted episode of molestation but a one-time occurrence.” Id. at

       973. The court also noted:

               Although maximum sentences are ordinarily appropriate for the
               worst offenders, we refer generally to the class of offenses and
               offenders that warrant the maximum punishment. But such class
               encompasses a considerable variety of offenses and offenders.


       Id. (emphasis in original).


[18]   We are not persuaded that the three-year maximum sentence imposed in this

       case was inappropriate. Unlike the defendant in Buchanan, whose offense was a

       one-time occurrence, Fincher has a criminal history of committing multiple

       thefts. The record evidences this theft was the result of a carefully carried out

       plan to steal property from Walmart. While Fincher contends that her “mental




       3
         Fincher claims a proper consideration of the defendant’s mental illness warrants a finding that the
       maximum sentence ordered was not appropriate, but she did not assert this mitigator at the sentencing
       hearing. See Koch v. State, 952 N.E.2d 359, 374-75 (Ind. Ct. App. 2011) (waiving mitigators that had not been
       raised at sentencing).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-508 | February 26, 2016           Page 8 of 9
       health difficulties . . . more readily indicate the need for probation served in a

       mental health facility[,]” (Br. of Appellant at 11), the record is replete with

       instances of Fincher’s inability to comply with rehabilitation. She continues to

       offend. Her inability to comply with even the simplest requirements reflects

       poorly on her judgment and character. (Id.) (“In this case the lack of

       compliance was not imbibing alcohol or using drugs, the lack of compliance

       was failing to stay at Charis house and going on an Easter egg hunt with her

       grandson.”).


[19]   Based on these facts, we cannot say the sentence is inappropriate in light of

       Fincher’s character and the nature of her offense. See, e.g., King v. State, 769

       N.E.2d 239, 240 (Ind. Ct. App. 2002) (finding that the defendant’s lengthy

       criminal history supported his maximum three-year sentence for Class D felony

       theft).


                                                 Conclusion
[20]   The trial court did not abuse its discretion in sentencing Fincher to three years

       imprisonment for a Class D felony theft. Fincher did not demonstrate that her

       sentence is inappropriate based on the nature of her offense or her character.

       Accordingly, we affirm.


[21]   Affirmed.


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-508 | February 26, 2016   Page 9 of 9
