MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Oct 02 2017, 6:46 am
regarded as precedent or cited before any                                 CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
the defense of res judicata, collateral                                    and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Earl McCoy                                               Curtis T. Hill, Jr.
McCoy Law Office                                         Attorney General of Indiana
Lafayette, Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Amy Morinskey,                                           October 2, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A04-1705-CR-1150
        v.                                               Appeal from the Tippecanoe
                                                         Circuit Court
State of Indiana,                                        The Honorable Thomas H. Busch,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79C01-1510-F5-24



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A04-1705-CR-1150 | October 2, 2017        Page 1 of 10
                                         Statement of the Case
[1]   Amy Morinskey appeals her convictions for possession of methamphetamine,

      as a Level 5 felony, and false informing, as a Class A misdemeanor, following

      her guilty pleas. Morinskey presents two issues for our review:


               1.       Whether the trial court abused its discretion when it
                        sentenced her.

               2.       Whether her sentence is inappropriate in light of the
                        nature of the offenses and her character.


[2]   We affirm.


                                   Facts and Procedural History
[3]   This court previously stated the relevant facts and procedural history as

      follows:1


               In January 2012, the State charged Morinskey, under Cause
               79C01-1201-FA-2 (“Cause FA-2”), with Count I, Class A felony
               dealing in methamphetamine; Count II, Class C felony
               possession of methamphetamine; and Count III, Class A
               misdemeanor, possession of paraphernalia. In May 2012,
               Morinskey pled guilty to an amended Count I, Class B felony
               dealing in methamphetamine in exchange for the dismissal of the
               remaining counts. Thereafter, in June 2012, the trial court
               sentenced Morinskey to twelve (12) years, with eight (8) years
               executed in the Department of Correction and four (4) years
               suspended to probation. One year of Morinskey’s probation was



      1
        Morinskey had previously filed a notice of appeal in a related cause, but we dismissed that appeal as
      untimely. We subsequently granted Morinskey leave to file a belated notice of appeal in this cause.

      Court of Appeals of Indiana | Memorandum Decision 79A04-1705-CR-1150 | October 2, 2017            Page 2 of 10
        to be served on community corrections. The trial court also
        recommended that Morinskey be placed in the Purposeful
        Incarceration Program.

                                                ***

        On September 8, 2015, the State filed a Motion to Commit, in
        which it sought to revoke Morinskey’s community corrections
        placement. In the motion, the State alleged that Morinskey had
        failed to follow the trial court’s order to report to the Tippecanoe
        County Community Corrections to serve her executed sentence
        and had failed to pay the balance owed to them. The State also
        noted that Morinskey was not incarcerated in the Department of
        Correction or in the county jail. The trial court then issued a
        warrant for Morinskey’s arrest.

        On October 18, 2015, officers from the Lafayette Police
        Department initiated a traffic stop of a vehicle in which
        Morinskey was a passenger. When questioned by the officers,
        Morinskey identified herself with a false name, attempting to
        avoid the arrest warrant issued for her. During a search of the
        vehicle, the officers found methamphetamine and drug
        paraphernalia. The officers ultimately figured out Morinskey’s
        true identity and arrested her. When the police booked
        Morinskey into the jail, they discovered a bag of
        methamphetamine on her person.

        Subsequently, the State charged Morinskey, under Cause 79C01-
        1510-F5-24 (“Cause F5-24”), with the following: Count I, Level
        6 felony possession of methamphetamine; Count II, Class C
        misdemeanor possession of paraphernalia; Count III, Class A
        misdemeanor false informing; and Count IV, Level 5 possession
        of methamphetamine (while having a prior dealing in
        methamphetamine conviction).




Court of Appeals of Indiana | Memorandum Decision 79A04-1705-CR-1150 | October 2, 2017   Page 3 of 10
              On October 29, 2015, the State filed, in Cause FA-2, a petition to
              revoke Morinskey’s probation. On November 10, 2015, the trial
              court held an initial hearing on the probation revocation petition.

              On December 29, 2015, Morinskey entered into a plea agreement
              that addressed Cause F5-24 and Cause FA-2. In regard to F5-24,
              Morinskey agreed to plead guilty to Count III, Class A
              misdemeanor false informing, and Count IV, Level 5 possession
              of methamphetamine, in exchange for the dismissal of the
              remaining two charges. As for Cause FA-2, Morinskey agreed to
              admit to the allegation contained in the State’s Motion to
              Commit in exchange for the State’s dismissal of the petition to
              revoke her probation in its entirety. Additionally, she agreed that
              sentencing would be open to the trial court’s discretion.

              On February 19, 2016, the trial court held a combined hearing to
              address sentencing in Cause F5-24 and the Motion to Commit
              and probation revocation petition in Cause FA-2. . . . For Cause
              F5-24, the trial court imposed a four (4) year sentence for her
              Level 5 felony possession of methamphetamine conviction and a
              224 day sentence for her Class A misdemeanor false informing
              conviction. The trial court ordered these two counts to be served
              consecutively to each other and to the executed term in Cause
              FA-2. . . .


      Morinskey v. State, No. 79A04-1604-CR-981, 2017 WL 218149, at *1-2 (Ind. Ct.

      App. January 19, 2017). This belated appeal ensued.


                                     Discussion and Decision
                            Issue One: Abuse of Discretion in Sentencing

[4]   Morinskey first contends that the trial court abused its discretion when it

      sentenced her. Generally, sentencing decisions are left to the sound discretion

      of the trial court, and we review its decision only for an abuse of that discretion.
      Court of Appeals of Indiana | Memorandum Decision 79A04-1705-CR-1150 | October 2, 2017   Page 4 of 10
      Singh v. State, 40 N.E.3d 981, 987 (Ind. Ct. App. 2015), trans. denied. “An abuse

      of discretion occurs if the decision is clearly against the logic and effect of the

      facts and circumstances before the trial court.” Id.


              One way in which a trial court may abuse its discretion is failing
              to enter a sentencing statement at all. Other examples include
              entering a sentencing statement that explains reasons for
              imposing a sentence—including a finding of aggravating and
              mitigating factors if any—but the record does not support the
              reasons, or the sentencing statement omits reasons that are
              clearly supported by the record and advanced for consideration,
              or the reasons given are improper as a matter of law. Under
              those circumstances, remand for resentencing may be the
              appropriate remedy if we cannot say with confidence that the
              trial court would have imposed the same sentence had it properly
              considered reasons that enjoy support in the record.


      Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007) (“Anglemyer I”) (internal

      quotation marks and citations omitted), clarified on reh’g, 875 N.E.2d 218

      (“Anglemyer II”).


[5]   In its sentencing statement, the trial court identified as aggravating factors:

      Morinskey’s criminal history; her recent violations of both community

      corrections and probation; and her attempt to “avoid detection” by police.

      Appellant’s App. Vol. 2 at 18. The court identified as mitigating factors:

      Morinskey’s guilty plea and acceptance of responsibility for the offenses; her

      mental illness; her remorse; and her difficult childhood. The trial court found

      that the aggravators outweighed the mitigators and imposed an aggregate four-

      year sentence.


      Court of Appeals of Indiana | Memorandum Decision 79A04-1705-CR-1150 | October 2, 2017   Page 5 of 10
[6]   Morinskey contends that the trial court abused its discretion when it “failed to

      consider the hardship Morinskey’s incarceration would have on her children.”

      Appellant’s Br. at 13. An allegation that the trial court failed to identify or find

      a mitigating factor requires the defendant to establish that the mitigating

      evidence is both significant and clearly supported by the record. Anglemyer I,

      868 N.E.2d at 493. Further, “‘[i]f the trial court does not find the existence of a

      mitigating factor after it has been argued by counsel, the trial court is not

      obligated to explain why it has found that the factor does not exist.’” Id.

      (quoting Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993)).


[7]   As our Supreme Court has observed, “[m]any persons convicted of serious

      crimes have one or more children and, absent special circumstances, trial courts

      are not required to find that imprisonment will result in an undue hardship.”

      Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999). On appeal, Morinskey

      does not direct us to evidence of special circumstances in her case to support

      her contention. To the contrary, Morinskey points out that she “did not have

      custody of her children at the time of sentencing[.]” Appellant’s Br. at 13-14.

      Morinskey states only that she “maintained regular contact and visitation with

      her children” and that she was not a “‘bad’ role model for her children.” Id. at

      14. Morinskey has not shown that the trial court abused its discretion when it

      declined to find as a mitigating factor that her incarceration would be a

      hardship on her children.


[8]   Morinskey also contends that the trial court abused its discretion when it

      “improperly considered [her] act of lying to police about her identity” as an

      Court of Appeals of Indiana | Memorandum Decision 79A04-1705-CR-1150 | October 2, 2017   Page 6 of 10
      aggravating factor when it cited her attempt to avoid detection by police.

      Appellant’s Br. at 12. Morinskey maintains that, because her attempt to avoid

      detection by police was an element of the offense of false reporting, the trial

      court improperly considered that aggravator. In support of that contention,

      Morinskey cites to Gomillia v. State, 13 N.E.3d 846, 852 (Ind. 2014), where our

      Supreme Court held that, “[w]here a trial court’s reason for imposing a

      sentence greater than the advisory sentence includes material elements of the

      offense, absent something unique about the circumstances that would justify

      deviating from the advisory sentence, that reason is ‘improper as a matter of

      law.’” (Quoting Anglemyer I, 868 N.E.2d at 491).


[9]   However, even if the trial court’s consideration of Morinskey’s attempt to avoid

      detection were improper, “‘when a trial court improperly applies an aggravator

      but other valid aggravating circumstances exist, a sentence enhancement may

      still be upheld.’” Baumholser v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016)

      (quoting Hackett v. State, 716 N.E.2d 1273, 1278 (Ind. 1999) (internal citations

      omitted)). Morinskey does not challenge the other aggravators identified by the

      trial court in support of her four-year sentence, which is only one year more

      than the advisory sentence for a Level 5 felony. Ind. Code § 35-50-2-6(b)

      (2017). Again, the trial court also identified as aggravating: Morinskey’s

      criminal history, which includes two felony convictions, one of which is for

      dealing in methamphetamine, as a Class B felony, and six misdemeanor

      convictions; and her violations of community corrections and probation.

      Indeed, Morinskey was on probation and had a warrant out for her arrest when


      Court of Appeals of Indiana | Memorandum Decision 79A04-1705-CR-1150 | October 2, 2017   Page 7 of 10
       she committed the instant offenses. We are confident that, had the trial court

       considered only those proper aggravators, it would have sentenced Morinskey

       to four years executed. See Anglemyer I, 868 N.E.2d at 491 (holding remand for

       resentencing appropriate if we cannot say with confidence that the trial court

       would have imposed the same sentence had it properly considered reasons that

       enjoy support in the record). Accordingly, the trial court did not abuse its

       discretion when it sentenced Morinskey.


                                     Issue Two: Appellate Rule 7(B)

[10]   Morinskey also contends that her sentence is inappropriate in light of the nature

       of the offenses and her character. As we have explained:


               Indiana Appellate Rule 7(B) permits an Indiana appellate court
               to “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.” We assess the trial court’s
               recognition or nonrecognition of aggravators and mitigators as an
               initial guide to determining whether the sentence imposed was
               inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct.
               App. 2006). The principal role of appellate review is to “leaven
               the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). A defendant must persuade the appellate court that his or
               her sentence has met the inappropriateness standard of review.
               Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).


       Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).


[11]   Morinskey maintains that “the facts and circumstances set forth in this case are

       mild compared to the fact patterns set forth in many methamphetamine or false

       Court of Appeals of Indiana | Memorandum Decision 79A04-1705-CR-1150 | October 2, 2017   Page 8 of 10
       informing offense cases.” Appellant’s Br. at 16. She states that “[t]here were

       no victims.” Id. And she asserts that her failure to give officers her true name

       did not “significantly impact[]” their investigation into the offenses. Id. But the

       State characterizes Morinskey’s offenses as “notably egregious in the magnitude

       of resistance and disregard for authority.” Appellee’s Br. at 21. We do not

       agree with either Morinskey’s or the State’s description of the nature of the

       offenses. Rather, we simply note that Morinskey never voluntarily revealed her

       identity to police officers. Morinskey only admitted to her identity after an

       investigating officer discovered her name by searching a database and finding a

       photograph and description of her unique tattoos. We cannot say that

       Morinskey’s four-year sentence is inappropriate in light of the nature of the

       offenses.


[12]   Morinskey also maintains that her sentence is inappropriate in light of her

       character. In support, Morinskey merely states that her “criminal actions are

       directly related to her addictions to controlled substances” and she would like to

       seek substance abuse counseling. Appellant’s Br. at 14. But Morinskey’s

       substance abuse has spanned several years, and she failed to comply with

       community corrections following her 2012 conviction for Class B felony dealing

       in methamphetamine. Not only is Morinskey’s criminal history significant, but

       this is her second felony conviction related to methamphetamine. And, again,

       she was on probation and had a warrant out for her arrest at the time of the

       instant offenses. We cannot say that Morinskey’s sentence is inappropriate in

       light of her character.


       Court of Appeals of Indiana | Memorandum Decision 79A04-1705-CR-1150 | October 2, 2017   Page 9 of 10
[13]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1705-CR-1150 | October 2, 2017   Page 10 of 10
