                                                               FILED
MEMORANDUM DECISION                                       Jun 23 2016, 8:53 am


Pursuant to Ind. Appellate Rule 65(D),                         CLERK
                                                           Indiana Supreme Court
                                                              Court of Appeals
this Memorandum Decision shall not be                           and Tax Court

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
John C. Bohdan                                           Gregory F. Zoeller
Deputy Public Defender                                   Attorney General of Indiana
Fort Wayne, Indiana                                      Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Percilla A. Aguilar,                                     June 23, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A05-1511-CR-1974
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         02D05-1405-FA-32



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A05-1511-CR-1974 | June 23, 2016   Page 1 of 9
                                             Case Summary
[1]   Percilla A. Aguilar appeals the trial court’s decision to terminate her

      participation in Drug Court and the sentence imposed on her convictions for

      class A felony dealing in cocaine and class D felony maintaining a common

      nuisance. She argues that the trial court abused its discretion in terminating

      her participation in Drug Court. She also contends that her thirty-year

      aggregate sentence is inappropriate based on the nature of the offenses and her

      character. We conclude that the trial court gave Aguilar multiple opportunities

      to comply with Drug Court requirements and therefore did not abuse its

      discretion in terminating her participation in Drug Court. We also conclude

      that she has failed to carry her burden to show that her sentence is

      inappropriate. Therefore, we affirm.


                                 Facts and Procedural History
[2]   In 2013 and 2014, the Allen County Police Department received a series of

      anonymous tips that Aguilar was dealing in large amounts of cocaine. The

      anonymous callers informed the police that Aguilar and her brother would

      purchase cocaine in Chicago and transport it to Fort Wayne to be sold. In

      March 2014, police began surveillance of Aguilar’s residence. Between March

      and May, police officers performed numerous searches of Aguilar’s trash and

      found clear plastic bags that tested positive for cocaine and marijuana, and

      what appeared to be a drug ledger. Police also found baggies that appeared to

      have been washed clean, a practice drug dealers often use to destroy evidence.

      In addition, police found three large garbage bags that were torn and had

      Court of Appeals of Indiana | Memorandum Decision 02A05-1511-CR-1974 | June 23, 2016   Page 2 of 9
      masking tape on them, which is consistent with the way drug dealers package

      large amounts of drugs and/or money.


[3]   In May 2014, police obtained and executed a search warrant for Aguilar’s

      residence. They found fourteen baggies of cocaine, weighing a total of 10.7

      grams, packaged in a manner consistent with drug dealing. Aguilar admitted

      that the cocaine was hers but asserted that she was a user, not a dealer. Police

      also discovered electronic scales containing cocaine residue.


[4]   The same month, the State charged Aguilar with class A felony dealing in

      cocaine and class D felony maintaining a common nuisance. In July 2014,

      Aguilar pled guilty to both charges pursuant to a Drug Court participation plea

      agreement. The State agreed that upon her successful completion of the Drug

      Court program, it would move to dismiss the charges against her. As part of

      the agreement, Aguilar agreed to comply with certain conditions, including a

      ban on possessing or ingesting alcohol and a requirement that she submit to

      random urinalysis. Also, Aguilar acknowledged that a violation of any or all

      terms of the agreement could result in termination from the program.


[5]   In August 2014, Aguilar missed two scheduled urinalysis screens. As a result,

      the trial court required her to perform community service and write an essay on

      how to avoid missing screens. Later that month, one of Aguilar’s urinalysis

      screens resulted in a diluted sample, suggesting that she was hiding substance

      abuse, and the trial court required her to write an essay on how to prevent

      diluted urine samples.


      Court of Appeals of Indiana | Memorandum Decision 02A05-1511-CR-1974 | June 23, 2016   Page 3 of 9
[6]   In September and November 2014, Aguilar missed two appointments with her

      Drug Court case manager. She was sanctioned with more community service.

      In December 2014, Aguilar provided another diluted sample and missed a

      scheduled urinalysis screen. She was sanctioned with two nights in jail.


[7]   In January 2015, Aguilar provided another diluted sample and missed another

      scheduled urinalysis screen. She was also fired from her job. At a hearing on

      January 26, 2015, the trial court told Aguilar that it was worried about her and

      reminded her that she was facing a minimum of twenty years in prison for the

      class A felony charge. The trial court stated that the diluted samples and

      missed screens indicated that there was something she was hiding.

      Accordingly, the trial court remanded her to jail until February 2, 2015. Upon

      her release, the trial court ordered her to meet more frequently with her case

      manager and warned her about the “high stakes” of failing out of the program.

      Tr. 53-54. Aguilar subsequently completed treatment at a local counseling

      facility.


[8]   In June 2015, Aguilar missed another drug screen and was sanctioned with

      community service. In July 2015, Aguilar was released from the transitional

      home to live on her own. However, she missed another drug screen and an

      appointment with her case manager and was sanctioned with community

      service work.


[9]   In early August 2015, Aguilar missed another appointment with her case

      manager and her urinalysis screen came back positive for alcohol. At a status


      Court of Appeals of Indiana | Memorandum Decision 02A05-1511-CR-1974 | June 23, 2016   Page 4 of 9
       hearing on August 17, 2015, Aguilar admitted that she drank beer. The trial

       court informed Aguilar that she was almost to the point where she was past

       treatment. The court explained, “[T]here’s really not a whole lot of resources

       we have left. … We’re kind of running out of treatment and programs and help

       for you. And what happens then is that people can get bounced out of the

       program.” Id. at 73. The trial court reminded Aguilar four times that if she

       failed the program, she would be sentenced to at least twenty years in prison.

       The trial court sanctioned her with a weekend in jail.


[10]   On September 8, 2015, Aguilar’s Drug Court case manager filed a petition to

       terminate her Drug Court participation, alleging that Aguilar had violated three

       conditions of her participation agreement by testing positive for alcohol on

       August 28, 2015, possessing alcohol in her home, and failing to inform her case

       manager that she had been laid off from work. A status hearing was held the

       same day, at which Aguilar admitted to the violations, and the trial court

       terminated her participation in Drug Court.


[11]   In October 2015, the trial court held a sentencing hearing. The trial court found

       the following aggravating factors: Aguilar’s criminal record, including two

       juvenile adjudications, a misdemeanor conviction, and three felony convictions;

       failed efforts at rehabilitation, including probation, parole, treatment, shorter

       jail sentences, criminal diversion services, and community corrections; and she

       was on parole when she committed the current offenses. The trial court also

       found the following mitigating factors: her guilty plea, genuine remorse, and

       efforts in the Drug Court program. The trial court sentenced her to a term of

       Court of Appeals of Indiana | Memorandum Decision 02A05-1511-CR-1974 | June 23, 2016   Page 5 of 9
       thirty years, with ten years suspended and four years of probation, for class A

       felony dealing in cocaine and a concurrent term of two years for class D felony

       maintaining a common nuisance. This appeal ensued.


                                      Discussion and Decision
       Aguilar argues that the trial court abused its discretion “in entering a judgment

       of conviction on a Class A Felony as a sanction for a Drug Court Program

       violation in light of the nature of the offenses and [her] character.” Appellant’s

       Br. at 1. Her presentation of the issue conflates two separate questions: whether

       the trial court abused its discretion in terminating her participation in Drug

       Court and whether the sentence imposed for her convictions is inappropriate.

       Accordingly, we address her argument within this framework.


            Section 1 - The trial court did not abuse its discretion in
              terminating Aguilar’s participation in Drug Court.
[12]   Drug Court is a forensic diversion program akin to community corrections and

       probation, and we will review the termination of placement in a Drug Court

       program as we do a revocation of placement in community corrections or

       probation. Withers v. State, 15 N.E.3d 660, 663 (Ind. Ct. App. 2014).

       Placement in Drug Court, like placement in community corrections or

       probation, is an alternative to commitment to the Department of Correction

       and is made at the sole discretion of the trial court. Id. at 663-64. Accordingly,

       we will reverse a trial court’s decision to terminate an individual’s participation

       in Drug Court for an abuse of discretion. Id. at 665. We will find an abuse of


       Court of Appeals of Indiana | Memorandum Decision 02A05-1511-CR-1974 | June 23, 2016   Page 6 of 9
       discretion only where the decision is clearly against the logic and effect of the

       facts and circumstances. Id.


[13]   A trial court may terminate an individual’s participation in Drug Court based

       on the violation of at least one of the conditions of the participation agreement.

       Ind. Code § 33-23-16-14.5. Once an individual’s participation in Drug Court is

       terminated, the trial court is required to enter judgment of conviction or

       otherwise dispose of the case. Ind. Code § 33-23-16-14(b). Aguilar violated the

       conditions of her Drug Court participation agreement numerous times by

       missing appointments with her case manager, missing scheduled urine screens,

       and providing dilute urine samples. The trial court sanctioned her with writing

       requirements, community service, and jail time. The trial court gave Aguilar

       numerous opportunities to reform her behavior and reminded her of the harsh

       consequences of her failure to successfully complete the program. Nevertheless,

       Aguilar again violated the conditions of her participation agreement by testing

       positive for alcohol and possessing alcohol in her home. Under these

       circumstances, we cannot say that the trial court abused its discretion in

       terminating her participation in Drug Court. See Crump v. State, 740 N.E.2d

       564, 573 (Ind. Ct. App. 2000) (upholding revocation of probation where

       defendant violated probation by consuming alcohol), trans. denied (2001).


       Section 2 – Aguilar has failed to carry her burden to show that
                       her sentence is inappropriate.
[14]   Pursuant to Indiana Appellate Rule 7(B), “The Court may revise a sentence

       authorized by statute if, after due consideration of the trial court’s decision, the

       Court of Appeals of Indiana | Memorandum Decision 02A05-1511-CR-1974 | June 23, 2016   Page 7 of 9
       Court finds that the sentence is inappropriate in light of the nature of the offense

       and the character of the offender.” When reviewing a sentence, our principal

       role is to leaven the outliers rather than necessarily achieve what is perceived as

       the correct result. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “We do

       not look to determine if the sentence was appropriate; instead we look to make

       sure the sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876

       (Ind. 2012). Aguilar has the burden to show that her sentence is inappropriate.

       Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218.


[15]   Turning first to the nature of the offense, we observe that “the advisory sentence

       is the starting point the Legislature selected as appropriate for the crime

       committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The sentencing

       range for a class A felony is twenty to fifty years, with an advisory sentence of

       thirty years. Ind. Code § 35-50-2-4. Here, the trial court gave Aguilar the

       advisory sentence, but moderated it by suspending ten years with four years on

       probation. See Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010) (“Upon the

       review of sentence appropriateness under Appellate Rule 7, appellate courts

       may consider all aspects of the penal consequences imposed by the trial judge in

       sentencing the defendant.”). The police discovered 10.7 grams of cocaine in

       Aguilar’s residence, which was far more than the three grams of cocaine

       necessary to sustain her dealing conviction. Also, numerous discarded baggies

       with cocaine residue on them were found in her trash on six different days.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1511-CR-1974 | June 23, 2016   Page 8 of 9
       When Aguilar was finally arrested for her cocaine dealing, she denied she was a

       dealer.


[16]   As for Aguilar’s character, she has not led a law-abiding life and has had

       previous trouble with drugs. In 2003, she was convicted of class B felony

       dealing in cocaine and class C felony dealing in marijuana. In 2009, she was

       convicted of misdemeanor public intoxication. In 2010, she was convicted of

       class C felony possession of cocaine. She was also adjudicated a juvenile

       delinquent for committing what would be class C felony forgery if committed

       by an adult. Previous attempts to rehabilitate her have failed. When she

       committed the current offenses involving dealing in cocaine, she was still on

       parole for her conviction of class C felony possession of cocaine. We recognize

       that Aguilar has demonstrated positive attributes such as taking responsibility

       for her actions, showing remorse, and completing some of the steps in Drug

       Court. Overall, however, she fails to persuade us that an advisory sentence

       with ten years suspended, bringing her executed term down to the minimum, is

       inappropriate. Accordingly, we affirm Aguilar’s sentence.


[17]   Affirmed.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1511-CR-1974 | June 23, 2016   Page 9 of 9
