MEMORANDUM DECISION
                                                                                  FILED
Pursuant to Ind. Appellate Rule 65(D),                                       Feb 16 2018, 8:07 am
this Memorandum Decision shall not be
                                                                                  CLERK
regarded as precedent or cited before any                                     Indiana Supreme Court
                                                                                 Court of Appeals
court except for the purpose of establishing                                       and Tax Court

the defense of res judicata, collateral
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

                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kristy L. Bowling,                                       February 16, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         35A02-1709-CR-2134
        v.                                               Appeal from the Huntington
                                                         Superior Court
State of Indiana,                                        The Honorable Jennifer E.
Appellee-Plaintiff                                       Newton, Judge
                                                         Trial Court Cause Nos.
                                                         35D01-1610-F4-207
                                                         35D01-1708-F6-178



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2134 | February 16, 2018              Page 1 of 8
                                          Case Summary
[1]   Kristy L. Bowling appeals her twenty-six-year sentence for Level 4 felony

      dealing in a narcotic drug, Level 5 felony dealing in a narcotic drug, Level 6

      felony possession of a hypodermic syringe, and being a habitual offender,

      arguing that it is inappropriate. Although we affirm Bowling’s sentence, we

      remand so that the trial court can correct the records to reflect that Bowling’s

      fourteen-year habitual-offender enhancement is not a separate, consecutive

      sentence but rather is attached to her ten-year sentence for Level 4 felony

      dealing in a narcotic drug.



                            Facts and Procedural History
[2]   On December 2, 2015, Bowling sold hydromorphone hydrochloride to a

      confidential informant working for the Huntington Police Department. Six

      days later, Bowling sold 2.1 grams of morphine to a confidential informant. At

      the time of the transactions, Bowling had recently been released from the

      Department of Correction and was on probation. See Appellant’s App. Vol. II

      p. 67; Tr. Vol. II p. 66.


[3]   As a result of these transactions, in October 2016, the State, under Cause

      Number 35D01-1610-F4-207, charged Bowling with Level 4 felony dealing in a

      narcotic drug, Level 5 felony dealing in a narcotic drug, and being a habitual

      offender. Bowling posted bond in April 2017 (the record shows that Bowling

      gave birth in February 2017 and was not arrested until April, when “she had


      Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2134 | February 16, 2018   Page 2 of 8
      ample time to heal from the birthing process,” Tr. Vol. II p. 66). As a condition

      of her bond, Bowling was required to submit to random drug tests and to test

      negative. Appellant’s App. Vol. II p. 43. Bowling thereafter twice tested

      positive for drugs, and the trial court issued a warrant for her arrest. Id. at 45.


[4]   On August 2, 2017, Huntington Police Department Officers saw Bowling

      driving and stopped her to serve the arrest warrant. As officers approached her

      car, Bowling discarded a bag of syringes that she used to inject heroin and

      meth. As a result of this incident, the State, under Cause Number 35D01-1708-

      F6-178, charged Bowling with Level 6 felony possession of a hypodermic

      syringe.


[5]   Thereafter, Bowling pled guilty as charged in both cause numbers. See id. at 51-

      52 (“There is no plea agreement offered to me in exchange for my plea of

      guilty” & “I have chosen to allow the Court to decide my sentence in all

      matters pending against me in the Huntington Superior Court”). At the

      sentencing hearing, Bowling’s attorney conceded that she had “a very poor

      record,” which included three felony convictions (operating a vehicle while

      intoxicated, trafficking with an inmate, and theft), two probation violations,

      and a bond revocation. Tr. Vol. II p. 54. However, defense counsel highlighted

      that Bowling was the main provider for her three children—two teenagers and a

      six-month-old baby. Defense counsel argued that although Bowling had pled

      guilty to dealing drugs, she was not “a drug dealer” but rather “an addict” who

      sold drugs as “a middle-man to feed [her] own addiction.” Id. at 55; see also id.

      at 57 (arguing that Bowling was not at the “top of the chain”). Defense counsel

      Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2134 | February 16, 2018   Page 3 of 8
      also noted that when Bowling learned she was pregnant in May 2016, “she got

      herself clean.” Id. at 56.


[6]   The trial court found no mitigators and three aggravators: (1) Bowling’s

      criminal history, including three felonies and two probation violations; (2)

      Bowling committed the offenses in Cause No. F4-207 when she “had just

      recently been released from incarceration” and was on probation; and (3) after

      Bowling was arrested in Cause No. F4-207 and was out on bond, she continued

      using drugs. Id. at 69. As for Bowling’s claim that she was an addict and had

      to sell drugs to feed her addiction, the trial court pointed out that she stopped

      using drugs when she was pregnant, which undercut her claim that she had to

      sell drugs because she was an addict. Id. at 68. Accordingly, for Cause No. F4-

      207, the trial court sentenced Bowling to ten years for Level 4 felony dealing in

      a narcotic drug, enhanced by fourteen years for being a habitual offender, and a

      concurrent sentence of five years for Level 5 felony dealing in a narcotic drug.

      For Cause No. F6-178, the court sentenced Bowling to two years for Level 6

      felony possession of a hypodermic syringe. The court ordered the sentences in

      the two cause numbers to be served consecutively.


[7]   Bowling now appeals her sentence.



                                 Discussion and Decision
[8]   Bowling contends that her aggregate sentence of twenty-six years

      is inappropriate and asks us to reduce it “to the advisory sentence on each


      Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2134 | February 16, 2018   Page 4 of 8
      charge, enhanced by the minimum habitual offender enhancement on the

      dealing conviction.” Appellant’s Br. p. 12. Pursuant to Indiana Appellate Rule

      7(B), 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.” Because we generally defer to the judgment of trial courts in

      sentencing matters, Norris v. State, 27 N.E.3d 333, 335-36 (Ind. Ct. App. 2015),

      defendants have the burden of persuading us that their sentences

      are inappropriate, Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014).

      “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.” Id. (citing Cardwell v.

      State, 895 N.E.2d 1219, 1224 (Ind. 2008)).


[9]   Here, in the two cause numbers, Bowling pled guilty to a Level 4 felony, a

      Level 5 felony, and a Level 6 felony, and she admitted that she was a habitual

      offender. A person who commits a Level 4 felony shall be imprisoned for a

      fixed term of between two and twelve years, with an advisory sentence of six

      years. Ind. Code § 35-50-2-5.5. A person who commits a Level 5 felony shall

      be imprisoned for a fixed term of between one and six years, with an advisory

      sentence of three years. Ind. Code § 35-50-2-6. A person who commits a Level

      6 felony shall be imprisoned for a fixed term of between six months and two-

      and-a-half years, with an advisory sentence of one year. Ind. Code § 35-50-2-7.

      Finally, the court shall sentence a person found to be a habitual offender “to an


      Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2134 | February 16, 2018   Page 5 of 8
       additional fixed term that is between . . . six (6) years and twenty (20) years, for

       a person convicted of murder or a Level 1 through Level 4 felony.” Ind. Code §

       35-50-2-8(i). In Cause No. F4-207, the trial court sentenced Bowling to ten

       years for the Level 4 felony, enhanced by fourteen years for being a habitual

       offender, and a concurrent sentence of five years for the Level 5 felony. In

       Cause No. F6-178, the trial court sentenced Bowling to two years for the Level

       6 felony. The court ordered the sentences in the two cause numbers to be

       served consecutively. The sentences for the Level 4 and Level 5 felonies in

       Cause No. F4-207 were required to be served concurrently because they were

       nearly identical State-sponsored buys, see Walton v. State, 81 N.E.3d 679, 683

       (Ind. Ct. App. 2017), and, as Bowling acknowledges on appeal, the sentences in

       the two cause numbers were required to be served consecutively because

       Bowling was on bond when she committed the offense in F6-178, see Ind. Code

       § 35-50-1-2(e)(2). Accordingly, Bowling faced a sentencing range of eight-and-

       a-half years to thirty-four-and-a-half years. The trial court sentenced her to

       twenty-six years.


[10]   There is nothing extraordinary about the nature of the offenses in the two cause

       numbers. Bowling twice sold drugs to a confidential informant and possessed a

       syringe.


[11]   Bowling’s criminal history and failed attempts at rehabilitation, however,

       support her sentence. Bowling had recently been released from the DOC and

       was on probation when she sold drugs to a confidential informant. Then, while

       Bowling was out on bond for the dealing offenses, she twice tested positive for

       Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2134 | February 16, 2018   Page 6 of 8
       drugs—violating the conditions of her bond—and committed a new offense,

       possession of a hypodermic syringe. She did these things although claiming to

       be the main provider for her children. As the trial court observed at sentencing,

       “I don’t think that you care whether or not you use or whether or not you deal.

       I think that dealing may have helped feed your habit but I don’t [think] that

       that’s the only reason you were dealing.” Tr. Vol. II p. 69. In short, Bowling

       has not taken prison time, probation, or bond seriously and continues to live

       her life using and dealing drugs despite the consequences to her and her

       children.


[12]   Bowling claims that this case is like Schaaf v. State, 54 N.E.3d 1041 (Ind. Ct.

       App. 2016), where we found that the defendant’s forty-year sentence for two

       counts of dealing in heroin to a confidential informant was inappropriate and

       revised it to thirty years. This case is distinguishable from Schaaf on many

       grounds, including that this case involves a habitual-offender enhancement that

       accounts for the majority of Bowling’s twenty-six-year sentence. Bowling has

       failed to persuade us that her twenty-six-year sentence is inappropriate.


[13]   However, we agree with Bowling that this case needs to be remanded because

       the trial court entered a separate, consecutive sentence for her habitual-offender

       status instead of attaching the enhancement to her ten-year sentence for Level 4

       felony dealing in a narcotic drug. See Appellant’s App. Vol. II pp. 73, 76.

       Indiana Code section 35-50-2-8(j) provides:


               Habitual offender is a status that results in an enhanced sentence.
               It is not a separate crime and does not result in a consecutive

       Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2134 | February 16, 2018   Page 7 of 8
               sentence. The court shall attach the habitual offender
               enhancement to the felony conviction with the highest sentence
               imposed and specify which felony count is being enhanced.


       Therefore, we remand this case to the trial court with instructions to correct the

       sentencing order, the abstract of judgment, and the CCS in Cause No. F4-207

       to reflect that Bowling’s fourteen-year habitual-offender enhancement is

       attached to her ten-year sentence for Level 4 felony dealing in a narcotic drug.


[14]   Affirmed and remanded.


       May, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2134 | February 16, 2018   Page 8 of 8
