MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              FILED
this Memorandum Decision shall not be                          Feb 24 2017, 9:46 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
Isabella H. Bravo                                        Curtis T. Hill, Jr.
Bloomington, Indiana                                     Attorney General of Indiana

                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Stacey Jo Caton,                                         February 24, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         53A05-1607-CR-1672
        v.                                               Appeal from the Monroe Circuit
                                                         Court
State of Indiana,                                        The Honorable Mary-Ellen
Appellee-Plaintiff                                       Diekhoff, Judge
                                                         Trial Court Cause No.
                                                         53C05-1409-F5-857



Altice, Judge.


                                         Case Summary


Court of Appeals of Indiana | Memorandum Decision 53A05-1607-CR-1672 | February 24, 2017   Page 1 of 9
[1]   Stacey Jo Caton pled guilty to seven offenses charged under four separate cause

      numbers, including three counts of Level 5 felony trafficking with an inmate

      charged under Cause Number 53C05-1409-F5-857 (Cause No. 857). On

      appeal, Caton argues that the seven-year aggregate sentence imposed for the

      offenses charged under Cause No. 857 is inappropriate in light of the nature of

      the offenses and her character.


[2]   We affirm.


                                       Facts & Procedural History


[3]   In March of 2013, Caton was charged under Cause Number 53C05-1408-CM-

      2248 (Cause No. 2248) with class A misdemeanor check deception. Five

      months later, Caton was charged under Cause Number 53C05-1310-FD-1022

      (Cause No. 1022) with two counts of class D felony theft. On three separate

      occasions in July 2014, Caton sent a controlled substance to her husband

      through the mail while he was incarcerated in the Monroe County Correctional

      Center. As a result, Caton was charged under Cause No. 857 with three counts

      of Level 5 felony trafficking with an inmate. Caton was released on bond on

      September 23, 2015, and within two days she was arrested for operating a

      vehicle with a blood alcohol content of .25. As a result, Caton was charged

      under Cause Number 53C05-1409-CM-2698 (Cause No. 2698) with class A

      misdemeanor operating a vehicle while intoxicated (OWI).


[4]   At some point, all four cause numbers were consolidated under Cause No. 857,

      and in October 2015, Caton pled guilty to all of the charged offenses. Shortly

      Court of Appeals of Indiana | Memorandum Decision 53A05-1607-CR-1672 | February 24, 2017   Page 2 of 9
      thereafter, the trial court ordered Caton released for drug treatment pending

      sentencing. Caton completed treatment at Tara Treatment Center and was

      admitted to Amethyst House for further treatment. In the meantime, the trial

      court held monthly review hearings and sentencing was repeatedly continued at

      Caton’s request. In April 2016, the trial court ordered Caton to report for day

      reporting upon the completion of her treatment at Amethyst House.


[5]   On May 24, 2016, Caton tested positive for methamphetamine during an

      appointment with the Department of Child Services. The trial court issued a

      warrant for her arrest on June 9, 2016, and she was subsequently apprehended

      by police. A sentencing hearing was held on June 23, 2016. The trial court

      sentenced Caton to concurrent two-year sentences—which amounted to time

      served—for the two theft convictions under Cause No. 1022; a one-dollar fine,

      court costs, and restitution for the check deception conviction under Cause No.

      2248; thirty-two days and a license suspension for the OWI conviction under

      Cause No. 2698; and an aggregate seven-year sentence for the three trafficking

      convictions under Cause No. 857. Caton now appeals. Additional facts will be

      provided as necessary.


                                          Discussion & Decision


[6]   On appeal, Caton challenges only the seven-year aggregate sentence imposed

      for the trafficking offenses charged under Cause No. 857. Specifically, she

      argues that her seven-year aggregate sentence is inappropriate in light of the

      nature of her offenses and her character. Article 7, section 4 of the Indiana


      Court of Appeals of Indiana | Memorandum Decision 53A05-1607-CR-1672 | February 24, 2017   Page 3 of 9
      Constitution grants our Supreme Court the power to review and revise criminal

      sentences. See Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014), cert. denied, 135

      S.Ct. 978 (2015). Pursuant to Ind. Appellate Rule 7, the Supreme Court

      authorized this court to perform the same task. Cardwell v. State, 895 N.E.2d

      1219, 1224 (Ind. 2008). Per App. R. 7(B), we may revise a sentence “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.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R. 7).

      “Sentencing review under Appellate Rule 7(B) is very deferential to the trial

      court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). Caton bears the

      burden on appeal of persuading us that her sentence is inappropriate. See id.


[7]   The determination of whether we regard a sentence as inappropriate “turns on

      our sense of the culpability of the defendant, the severity of the crime, the

      damage done to others, and myriad other factors that come to light in a given

      case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895

      N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to

      leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is

      not our goal in this endeavor to achieve the perceived “correct” sentence in

      each case. Knapp, 9 N.E.3d at 1292. Accordingly, “the question under

      Appellate Rule 7(B) is not whether another sentence is more appropriate; rather,

      the question is whether the sentence imposed is inappropriate.” King v. State,

      894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original).




      Court of Appeals of Indiana | Memorandum Decision 53A05-1607-CR-1672 | February 24, 2017   Page 4 of 9
[8]   In order to assess the appropriateness of a sentence, we first look to the

      statutory range established for the classification of the relevant offense. Caton

      was convicted under Cause No. 857 of three counts of Level 5 felony trafficking

      with an inmate. The sentencing range for a Level 5 felony is one to six years,

      with an advisory sentence of three years. Caton received below-advisory

      sentences of two and one-half years on each of the first two trafficking

      convictions and two years on the third. The trial court ordered the sentences be

      served consecutively, for an aggregate sentence of seven years.1


[9]   Because we have not been provided with a copy of the guilty plea hearing, the

      record contains few details concerning the trafficking offenses. The most we

      can say from the record before us is that Caton mailed Suboxone to her

      husband on three separate occasions while he was incarcerated. Thus, the

      offenses appear to be unremarkable in nature.




      1
        The parties make mention of a plea agreement purportedly capping Caton’s sentence at seven years. The
      only reference we can find in the record to any such agreement is in the Pre-Sentence Investigation Report,
      which indicated that Caton “ha[d] been offered a plea agreement . . . which provides for an aggregate
      sentence of seven years.” Appellant’s Confidential Appendix at 79. We have not, however, been provided with
      a copy of any such plea agreement, nor have we been provided with a transcript of Caton’s guilty plea
      hearing. Furthermore, at the sentencing hearing in this matter, neither the trial court nor the parties made
      mention of any such plea agreement. Instead, counsel and the trial court agreed that under Ind. Code § 35-
      50-1-2(d)(2), the maximum aggregate sentence Caton could receive for the trafficking offenses was seven
      years. It is far from clear to us that I.C. 35-50-1-2, which places limitations on consecutive sentences for
      nonviolent crimes arising out of a single episode of criminal conduct, is applicable here. The trial court made
      no express finding that the trafficking offenses constitute a single episode of criminal conduct, and it appears
      from the record that they did not. Rather, Caton committed three distinct acts of trafficking with an inmate,
      all occurring on different dates. See Slone v. State, 11 N.E.3d 969, 972 (Ind. Ct. App. 2014) (explaining that
      “[i]n determining whether multiple offenses constitute an episode of criminal conduct, the focus is on the
      timing of the offenses and the simultaneous and contemporaneous nature, if any, of the crimes” (quoting
      Williams v. State, 891 N.E.2d 621, 631 (Ind. Ct. App. 2008)).

      Court of Appeals of Indiana | Memorandum Decision 53A05-1607-CR-1672 | February 24, 2017            Page 5 of 9
[10]   Caton’s character standing alone, however, is more than sufficient to support

       the sentence imposed. Caton has a very lengthy criminal history and has been

       shown leniency many times in the past. In 1998, Caton was convicted in three

       separate jurisdictions of possession of marijuana, theft, and conversion. Her

       sentences for these offenses were mostly suspended and she was placed on

       probation. In 2007, Caton entered into a deferred prosecution agreement for

       class B misdemeanor false informing, and that case was subsequently

       dismissed. In May 2008, Caton was convicted of class A misdemeanor OWI

       and class B misdemeanor failure to stop after an accident and she received a

       suspended one-year sentence. The first petition to revoke Caton’s suspended

       sentence was filed less than three months later, and by December 2008, two

       more petitions to revoke had been filed. In July 2009, Caton entered an

       admission to the allegations in the petitions to revoke, and she also pled guilty

       to two new offenses—class D felony theft and class D felony neglect of a

       dependent. Sentencing on both the revocation and the new offenses was

       deferred for two years, contingent upon Caton’s participation in Drug

       Treatment Court. Less than one year later, Caton was charged with Class D

       felony theft and Class A misdemeanor contributing to the delinquency of a

       minor. Caton pled guilty to these new offenses, and sentencing was again

       deferred to allow Caton to continue with Drug Treatment Court. Upon

       Caton’s successful completion of Drug Treatment Court in February 2012, all

       of the pending charges were dismissed, as was the petition to revoke Caton’s

       suspended sentence.



       Court of Appeals of Indiana | Memorandum Decision 53A05-1607-CR-1672 | February 24, 2017   Page 6 of 9
[11]   Approximately one year later, Caton committed check deception as charged in

       Cause No. 2248. Five months later, she committed the thefts charged in Cause

       No. 1022. While these charges remained pending, she committed the

       trafficking offenses charged in Cause No. 857, and within three days of being

       released on bond for those offenses, she committed the Class A misdemeanor

       OWI charged under Cause No. 2698 by driving with a blood alcohol content of

       .25. Caton pled guilty to all of these offenses in October 2015, and despite her

       lengthy history of reoffending, the trial court again showed her leniency when it

       deferred sentencing in order to allow Caton to pursue substance abuse

       treatment. Caton received treatment at Tara Treatment Center and Amethyst

       House, but shortly after she left treatment, she tested positive for

       methamphetamine.


[12]   Other evidence in the record also reflects poorly on Caton’s character.

       Specifically, Caton admitted to leaving Monroe County after she learned that a

       warrant had been issued for her arrest. Although she subsequently returned to

       Monroe County and claimed that she intended to turn herself in, she failed to

       do so and was apprehended by police approximately a week after the warrant

       was issued. Caton also admitted that after she left drug treatment, she allowed

       her seventeen-year-old son, who was “on the run” and using drugs, to stay at

       her apartment. Appellant’s Confidential Appendix at 73. She told the officer who

       prepared her PSI that she had allowed her son and his friends “to use addictive,

       illegal substances at her home and acknowledged that she witnessed some of

       these behaviors.” Id. Additionally, although Caton tested positive for


       Court of Appeals of Indiana | Memorandum Decision 53A05-1607-CR-1672 | February 24, 2017   Page 7 of 9
       methamphetamine, she denied using that substance. Instead, she hypothesized

       that she might have tested positive because she had used her son’s one-hitter to

       smoke Spice, which she believed had traces of methamphetamine because her

       son was then using and selling that substance.


[13]   Caton’s arguments on appeal that she should have been shown greater leniency

       due to her drug addiction, her poor health, and her desire to maintain her

       relationship with her children are unpersuasive. With respect to her drug

       addiction, we note that despite participating in Drug Treatment Court and

       receiving intensive substance abuse treatment at Tara Treatment Center and

       Amethyst House, Caton has demonstrated that she is either unable or unwilling

       to refrain from using drugs when she is not incarcerated. We also note that

       Caton’s declining health is directly related to her substance abuse problems.

       Specifically, she told the officer preparing her PSI that she suffers from hepatitis

       C and cirrhosis of the liver caused by her use of addictive substances. Caton

       has made no argument that the appropriate medical treatment will not be

       available to her while she is incarcerated, and in light of her history of relapsing

       while not incarcerated, Caton’s health problems actually militate against

       showing any further leniency. Furthermore, Caton’s assertion that her desire to

       preserve a relationship with her children is a strong motivator for her to stay

       clean rings hollow in light of her virtually uninterrupted history of criminal

       activity and substance abuse throughout the majority of her children’s lives.


[14]   Finally, we note that Caton argues that she should have been sentenced to a

       Purposeful Incarceration program to address her substance abuse problems.

       Court of Appeals of Indiana | Memorandum Decision 53A05-1607-CR-1672 | February 24, 2017   Page 8 of 9
       The trial court declined to recommend Purposeful Incarceration because he did

       not want Caton to be “in there with people who are actually trying to get

       sober.” Transcript at 36. The trial court’s assessment in this regard is well

       taken. We cannot say that placement in the Department of Correction is

       inappropriate. In sum, Caton has fallen far short of establishing that her

       sentence is inappropriate.


[15]   Judgment affirmed.


[16]   Riley, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 53A05-1607-CR-1672 | February 24, 2017   Page 9 of 9
