MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Mar 25 2019, 10:03 am
court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jennifer A. Joas                                         Curtis T. Hill, Jr.
Madison, Indiana                                         Attorney General
                                                         George P. Sherman
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Anna M. Bischoff,                                        March 25, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2565
        v.                                               Appeal from the Ripley Circuit
                                                         Court
State of Indiana,                                        The Honorable Ryan J. King,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         69C01-1712-F2-11



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2565 | March 25, 2019                  Page 1 of 5
                                          Case Summary
[1]   Anna M. Bischoff pled guilty to Level 3 felony dealing in methamphetamine.

      The trial court sentenced her to fourteen years, with twelve years to serve and

      two years suspended to probation. Bischoff appeals her sentence, arguing that

      it is inappropriate in light of the nature of her offense and her character. We

      disagree and affirm.



                            Facts and Procedural History
[2]   On December 6, 2017, Kenneth Cardinal was arrested at his house. The next

      day, a concerned citizen called the police to report that two people were at

      Cardinal’s house even though he was in jail. The police went to Cardinal’s

      house and found Bischoff and another woman inside. After obtaining a search

      warrant, the police found hypodermic needles, digital scales, and a glass

      smoking pipe in Bischoff’s bag. Bischoff then directed the police to a container

      of multiple baggies of meth weighing a total of 31.67 grams. Tr. p. 31.


[3]   The State charged Bischoff with four counts: Count I, Level 2 felony dealing in

      methamphetamine (enhanced from a Level 5 felony because the amount of the

      drug was at least ten grams); Count II, Level 3 felony possession of

      methamphetamine (enhanced from a Level 6 felony because the amount of the

      drug was at least twenty-eight grams); Count III, Level 6 felony possession of a

      hypodermic needle; and Count IV, Class C misdemeanor possession of

      paraphernalia. Thereafter, the State and Bischoff entered into a plea agreement


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2565 | March 25, 2019   Page 2 of 5
      whereby Bischoff would plead guilty to Count I, reduced to a Level 3 felony (at

      least five grams), and the State would dismiss Counts II-IV. Sentencing was left

      to the discretion of the trial court.


[4]   At sentencing, the thirty-seven-year-old Bischoff testified that when she was

      arrested in this case, she had been using three to five grams of meth every day

      for three years and that being arrested that December day “sav[ed] [her] life.”

      Id. at 20. She explained that in the 292 days she had been in jail awaiting

      resolution of this case, she had “sober[ed] up” and gained weight, and her

      memory was coming back. Id. at 21. She asked the trial court for “a chance to

      get better [and] to get help.” Id.


[5]   The trial court identified four aggravators: (1) Bischoff had over thirty grams of

      meth, which was “far in excess” of what was required to prove the Level 3

      felony (at least five grams) and entitled to “substantial weight”; (2) Bischoff was

      on probation for Class A misdemeanor domestic battery when she committed

      the offense in this case, which was entitled to “substantial weight”; (3) Bischoff

      did not express remorse during her PSI interview (although she appeared to

      express “genuine remorse” at the sentencing hearing), which was entitled to

      “only slightly aggravating” weight; and (4) Bischoff has a criminal history

      (misdemeanor disorderly conduct, OWI, and domestic battery), which was

      entitled to “only slightly aggravating” weight because it was “unrelated and

      misdemeanant in nature.” Appellant’s App. Vol. II p. 40. The trial court did

      not identify any mitigators. It acknowledged that Bischoff pled guilty but found

      that the plea agreement—specifically, the reduced charge for Count I—“greatly

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2565 | March 25, 2019   Page 3 of 5
      reduced [her] prison exposure.” Id. The court sentenced Bischoff to fourteen

      years, with two years suspended to probation.


[6]   Bischoff now appeals her sentence.



                                Discussion and Decision
[7]   Bischoff contends that her sentence is inappropriate and asks us to revise it

      pursuant to Indiana Appellate Rule 7(B), which provides that an appellate court

      “may revise a sentence authorized by statute if, after due consideration of the

      trial court’s decision, the Court finds that the sentence is inappropriate in light

      of the nature of the offense and the character of the offender.” Whether a

      sentence is inappropriate ultimately turns on the culpability of the defendant,

      the severity of the crime, the damage done to others, and a myriad of other

      factors that come to light in a given case. Cardwell v. State, 895 N.E.2d 1219,

      1224 (Ind. 2008). Because we generally defer to the judgment of trial courts in

      sentencing matters, defendants bear the burden of persuading us that their

      sentences are inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind. Ct.

      App. 2016).


[8]   Regarding the nature of the offense, Bischoff pled guilty to a Level 3 felony, for

      which the sentencing range is three to sixteen years with an advisory sentence

      of nine years. See Ind. Code § 35-50-2-5(b). However, she very well could have

      been convicted of a Level 2 felony, for which the sentencing range is ten to

      thirty years with an advisory sentence of seventeen-and-a-half years. Ind. Code


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2565 | March 25, 2019   Page 4 of 5
       § 35-50-2-4.5. Indiana Code section 35-48-4-1.1 provides that a person who

       possesses at least ten grams of methamphetamine with intent to deliver commits

       a Level 2 felony. Bischoff had more than thirty grams of meth. Indeed,

       “Bischoff does not dispute that she was in possession of methamphetamine in

       an amount far greater than necessary to prove her offense.” Appellant’s Br. p.

       10. Bischoff’s fourteen-year sentence with two years suspended to probation is

       not inappropriate in light of the nature of her offense.


[9]    As for Bischoff’s character, we acknowledge that she has “a limited

       misdemeanor criminal history bearing no relation to the offense for which she

       was convicted.” Id. at 11-12. But she was on probation for domestic battery at

       the time of this offense. And although Bischoff has no prior felony convictions,

       she admitted using three to five grams of meth every day for three years. It is

       likely fortuitous that she was not arrested before this incident. Finally, while it

       is true that Bischoff appeared to express remorse at the sentencing hearing, the

       trial court found that this expression was offset by her statements in the PSI that

       she was simply “in the wrong place at the wrong time.” Appellant’s App. Vol.

       II pp. 27, 40. Bischoff has failed to persuade us that her sentence of fourteen

       years with two years suspended to probation is inappropriate under the

       circumstances.


[10]   Affirmed.


       Mathias, J., and Crone, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2565 | March 25, 2019   Page 5 of 5
