MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Apr 22 2019, 5:51 am

court except for the purpose of establishing                              CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Brian A. Karle                                            Curtis T. Hill, Jr.
Ball Eggleston, PC                                        Attorney General of Indiana
Lafayette, Indiana
                                                          Tyler G. Banks
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Corina M. Smith,                                          April 22, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2214
        v.                                                Appeal from the
                                                          Tippecanoe Superior Court
State of Indiana,                                         The Honorable
Appellee-Plaintiff                                        Steven Meyer, Judge
                                                          Trial Court Cause No.
                                                          79D02-1706-F2-13



Vaidik, Chief Judge.



                                     Case Summary

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2214 | April 22, 2019                Page 1 of 12
[1]   Corina M. Smith appeals her sentence for Level 2 felony conspiracy to commit

      dealing in methamphetamine and for being a habitual offender. We affirm in

      part and reverse and remand in part.



                            Facts and Procedural History
[2]   Smith and her boyfriend-turned-husband Kyle Balser committed a rash of drug

      crimes in late 2016 and early 2017, as we touched on in a 2018 decision

      addressing an appeal by Balser. See Kyle L. Balser v. State, Case No. 18A-CR-

      473 (Ind. Ct. App. Aug. 29. 2018). In September 2016, Balser was an inmate in

      the Tippecanoe County Jail, and Smith was caught mailing him a strip or strips

      of Buprenorphine, a controlled substance. In December 2016, Smith and Balser

      were arrested in White County after being pulled over and found with

      methamphetamine, a large amount of cash, and a gun. This arrest led to Smith

      (and Balser) being charged with Level 2 felony dealing in methamphetamine in

      January 2017. See Case No. 91D01-1701-F2-19 (Smith); see also Case No.

      91D01-1701-F2-17 (Balser).


[3]   The White County incident also prompted the Tippecanoe County Drug Task

      Force to begin an investigation of Smith and Balser. What the Task Force

      discovered was that Smith and Balser were involved in a conspiracy to import

      large amounts of methamphetamine from Texas and Mexico for distribution in

      Indiana. Smith’s involvement was minimal at the beginning but increased as

      time went on, especially after Balser went back to jail in January 2017. In

      February, officers intercepted a package of methamphetamine bound for

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2214 | April 22, 2019   Page 2 of 12
      Smith’s residence. On February 20, officers conducted a controlled delivery of

      the methamphetamine to Smith’s residence. Smith answered the door and

      accepted the package. In a subsequent search, officers found additional

      methamphetamine, a strip of Buprenorphine, digital scales, and stamp baggies.

      Smith was taken into custody and, when interviewed, said that she and Balser

      had received four to five kilograms of methamphetamine since the fall of 2016.


[4]   Notwithstanding this evidence, the State did not immediately charge Smith,

      and she was released from jail on February 24, 2017. One week later, she

      committed Level 6 felony theft and Class A misdemeanor false government

      identification in Tippecanoe County. She pled guilty to those charges in May

      2017 and in June 2017 was sentenced to two-and-a-half years in prison. See

      Case No. 79D05-1703-F6-216.


[5]   On June 30, 2017, the State charged Smith with the following in relation to the

      distribution operation: Level 2 felony conspiracy to commit dealing in

      methamphetamine (at least ten grams); Level 2 felony dealing in

      methamphetamine (at least ten grams); Level 4 felony possession of

      methamphetamine (at least ten grams); Class A misdemeanor possession of a

      controlled substance (Buprenorphine); and Class C misdemeanor possession of

      paraphernalia (pipes, straws, or other devices). The State also charged Smith

      with being a habitual offender based on prior felony convictions.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2214 | April 22, 2019   Page 3 of 12
[6]   Three weeks later, on July 21, 2017, the State charged Smith with Level 5

      felony trafficking with an inmate based on sending the Buprenorphine to Balser

      in September 2016. See Case No. 79D02-1707-F5-85.


[7]   At that point, then, Smith had three cases pending: this case (the conspiracy

      case); (2) the trafficking case, F5-85; and (3) the White County case. Smith pled

      guilty to Level 4 felony dealing in methamphetamine in the White County case

      in October 2017 and in November 2017 was sentenced to seven years in prison.

      She did not appeal that sentence. Then, in June 2018, Smith and the State

      entered into a plea agreement under which Smith agreed to plead guilty to

      Level 2 felony conspiracy to commit dealing in methamphetamine and to being

      a habitual offender in this case and to plead guilty as charged in F5-85, with

      sentencing left to the discretion of the trial court. In this case, the trial court

      imposed a sentence of twenty-eight years—a base sentence of twenty years plus

      an eight-year habitual-offender enhancement. In F5-85, the court sentenced

      Smith to five years, to run consecutive to the twenty-eight years in this case.


[8]   Smith has separately appealed her sentences in this case and in F5-85. In this

      memorandum decision, we address Smith’s twenty-eight-year sentence for

      conspiracy to commit dealing in methamphetamine and the order for

      consecutive sentences. In another memorandum decision issued today, we

      affirm Smith’s five-year sentence in F5-85. See Corina M. Smith v. State, 18A-

      CR-2258 (Ind. Ct. App. Apr. 22, 2019).




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2214 | April 22, 2019   Page 4 of 12
                                  Discussion and Decision
                                    I. Inappropriate Sentence
[9]    Smith contends that her twenty-eight-year sentence is inappropriate and asks us

       to reduce 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.”

       Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014) (citing 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 have the burden of

       persuading us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d

       1041, 1044-45 (Ind. Ct. App. 2016).


[10]   We begin by noting that Smith’s sentence, while lengthy, could have been

       much longer. The sentencing range for a Level 2 felony is ten to thirty years,

       with an advisory sentence of seventeen-and-a-half years, Ind. Code § 35-50-2-

       4.5, and the habitual-offender-enhancement range for a person convicted of a

       Level 1 through Level 4 felony is six to twenty years, Ind. Code § 35-50-2-8. As

       such, Smith could have been sentenced to as much as fifty years. She was




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2214 | April 22, 2019   Page 5 of 12
       sentenced to just over half of that. We consider her arguments with this fact in

       mind.


[11]   As for the nature of Smith’s offense, this was no run-of-the-mill drug deal.

       Smith conspired with Balser for many months to import several kilograms of

       methamphetamine from Texas and Mexico. The operation involved numerous

       parties and tens of thousands of dollars. When Balser went to jail in January

       2017, Smith stayed in touch with him, facilitating his continued involvement in

       the operation, but also took on more of an active role herself. During the

       sentencing hearing, the lead investigator in this case testified that Smith and

       Balser’s operation “was probably the biggest to date that I’ve seen.” Tr. p. 85.

       Smith’s sentence is not inappropriate in light of the nature of her offense.


[12]   Turning to Smith’s character, her substantial sentence is also supported by her

       extensive criminal history, which she fails to discuss beyond noting that it is

       “non-violent.” Appellant’s Br. p. 15. The pre-sentence investigation report, the

       accuracy of which Smith does not contest, reveals the following. As a teenager,

       she was adjudicated a delinquent and eventually committed to the Indiana

       Girls’ School for committing forgery, which would have been a felony if

       committed by an adult. In 1998, Smith was convicted of felony auto theft. In

       1999, she was convicted of six counts of misdemeanor check deception. In

       2004, she was convicted of five felonies: maintaining an illegal drug lab,

       possession of stolen property, and three counts of possession of

       methamphetamine. In 2011 and 2012, Smith had misdemeanor convictions for

       purchasing precursors and criminal trespass. And as already discussed, Smith

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2214 | April 22, 2019   Page 6 of 12
       committed multiple additional felonies around the time of the conspiracy:

       Level 5 felony trafficking with an inmate (Tippecanoe County, September

       2016); Level 4 felony dealing in methamphetamine (White County, December

       2016); and Level 6 felony theft (Tippecanoe County, March 2017). Given this

       sustained history of felonies and other criminal conduct, we cannot say that

       Smith’s sentence is inappropriate.


                                    II. Consecutive Sentences
[13]   Smith also appeals the trial court’s order for her sentence in this case to run

       consecutive to her sentence in F5-85. In ordering consecutive sentences, the

       trial court explained:


               And for the record, I’m, I’m running them consecutive for the
               reason that the, that the Conspiracy to Deal was committed after
               she was arrested for the Trafficking [F5-85]. So, she was out on
               bond on that plus I believe she was out on Probation for some
               other offenses when she, when she committed these offenses.
               But, I think it’s appropriate to run them consecutive for that
               reason, for the record.


       Tr. p. 108. Smith correctly points out that she was not out on bond in F5-85

       while she was participating in the conspiracy underlying this case. She was

       arrested for the conspiracy on February 20, 2017, and while she committed the

       trafficking in September 2016, she was not arrested for it until March 2017.

       Appellant’s App. Vol. II p. 128. The State acknowledges this but argues that

       the trial court would have imposed consecutive sentences regardless of the

       timing of the crimes and that therefore we should affirm the consecutive

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2214 | April 22, 2019   Page 7 of 12
       sentences. The State emphasizes the trial court’s statement that Smith “was out

       on bond on that plus I believe she was out on Probation for some other

       offenses when she, when she committed these offenses.” Tr. p. 108.

       However, the State does not tell us when Smith was on probation or what she

       was on probation for. According to the pre-sentence investigation report, she

       might have been on probation in early 2017 for misdemeanor possession of

       marijuana. We cannot say with confidence that this fact alone would have led

       the trial court to order consecutive sentences in this case and F5-85. Therefore,

       we reverse the imposition of consecutive sentences and remand this matter to

       the trial court for reconsideration of the issue. If the court orders concurrent

       sentences this time around, it will have to amend the sentencing order and the

       abstract of judgment in both this case and F5-85.


                                          III. Fine and Costs
[14]   In addition to the prison sentence, the trial court imposed a $5,000 fine and

       ordered Smith to pay certain costs. Smith notes that the court was required to

       “conduct a hearing to determine whether [she] is indigent,” Ind. Code § 35-38-

       1-18 (fines), Ind. Code § 33-37-2-3 (costs), and argues that the court failed to do

       so. She acknowledges that the court conducted an “indigency inquiry” for

       purposes of appointing appellate counsel but asserts that it was required to

       conduct a “separate” indigency hearing regarding the fine and costs.

       Appellant’s Br. p. 17. However, she does not ask us to remand for such a

       “separate” hearing. Rather, she contends that “the record in this case is

       sufficient for this Court to conclude that . . . [she] is indigent for the purpose of

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2214 | April 22, 2019   Page 8 of 12
       the imposed costs and fine” and asks us to “issue an opinion clarifying that

       [she] is indigent for the purposes of costs and her fine.” Id. at 18-19. We so

       clarify: the trial court’s finding that Smith is indigent applies to the fine and

       costs.


[15]   Affirmed in part and reversed and remanded in part.


       Kirsch, J., concurs.


       Altice, J., dissents with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2214 | April 22, 2019   Page 9 of 12
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Corina M. Smith,
       Appellant-Defendant,                                      Court of Appeals Case No.
                                                                 18A-CR-2214
               v.

       State of Indiana,
       Appellee-Plaintiff




       Altice, Judge, dissenting in part.


[16]   The majority correctly determined that Smith’s twenty-eight-year sentence is

       not inappropriate. Where I part ways with the majority is in the reversal of the

       imposition of consecutive sentences.


[17]   The trial court expressly found that it was appropriate to run the sentence in

       this case (the Conspiracy Offense) consecutive to the sentence in F5-85 (the

       Trafficking Offense) because Smith committed the Conspiracy Offense (1) after

       being arrested for the Trafficking Offense, (2) while out on bond, and (3) while

       on probation. Indeed, the trial court mistakenly indicated that Smith was out

       on bond for the Trafficking Offense when she committed the Conspiracy

       Offense. The record reveals that although Smith was interrogated by a
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2214 | April 22, 2019        Page 10 of 12
       detective shortly after she committed the Trafficking Offense, she was not

       arrested in that case until after the Conspiracy Offense. The record, however,

       makes clear that Smith was out on bond in White County on a dealing

       methamphetamine charge at the time she committed the Conspiracy Offense.

       Additionally, the State indicated at sentencing that Smith was also out on bond

       in Carroll County on charges of check deception at the time she committed the

       Conspiracy Offense. Moreover, the presentence investigation report and the

       sentencing transcript reveal that Smith was on probation for another drug

       offense when she committed the Conspiracy Offense.


[18]   Smith’s intricate web of criminal offenses made it difficult to untangle the

       precise timeline of each. The trial court spent significant time during the

       sentencing hearing attempting to determine when Smith was out on bond or on

       probation in her various other cases. Despite the trial court’s errant reference to

       her being on bond for the Trafficking Offense, it remains clear that Smith was

       out on bond in one or two other counties at the time she committed the instant

       offense and was serving probation in another case. On this record, I believe

       remand is unnecessary because we can say with confidence that the trial court

       would have imposed the same sentence. See Vega v. State, 119 N.E.3d 193, 203

       (Ind. Ct. App. 2019) (“where the trial court abuses its discretion in sentencing a

       defendant, we need not remand for resentencing if we can ‘say with confidence

       that the trial court would have imposed the same sentence had it properly

       considered reasons that enjoy support in the record’”) (quoting Anglemyer v.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2214 | April 22, 2019   Page 11 of 12
State, 868 N.E.2d 482, 491 (Ind.), clarified on reh’g other grounds, 875 N.E.2d 218

(2007)). Therefore, I respectfully dissent from part II of the majority opinion.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2214 | April 22, 2019   Page 12 of 12
