MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D), this
                                                                  Dec 21 2018, 10:53 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                      CLERK
                                                                    Indiana Supreme Court
purpose of establishing the defense of res judicata,                   Court of Appeals
                                                                         and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jane Ann Noblitt                                         Curtis T. Hill, Jr.
Columbus, Indiana                                        Attorney General of Indiana
                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Debin Paige Gabbard,                                     December 21, 2018
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         18A-CR-1618
        v.
                                                         Appeal from the
State of Indiana,                                        Bartholomew Superior Court
Appellee-Plaintiff.                                      The Honorable James D.
                                                         Worton, Judge
                                                         Trial Court Cause No.
                                                         03D01-1710-F2-5616 &
                                                         03D01-1802-F5-733



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1618 | December 21, 2018           Page 1 of 12
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Debin Gabbard (Gabbard), appeals her sentence

      following her guilty plea to dealing in methamphetamine, a Level 3 felony, Ind.

      Code §§ 35-48-4-1.1(a)(2), (d)(2); and dealing in methamphetamine, a Level 5

      felony, I.C. § 35-48-4-1.1(a)(1).


[2]   We affirm.


                                                  ISSUES
[3]   Gabbard presents two issues on appeal, which we restate as:


              (1) Whether the trial court abused its discretion when it

                  sentenced Gabbard; and



              (2) Whether Gabbard’s sentence is inappropriate in light of the

                  nature of her offenses and her character.



                      FACTS AND PROCEDURAL HISTORY
[4]   In the fall of 2017, law enforcement made two controlled buys of heroin from

      Gabbard and her boyfriend at their home in Columbus, Indiana. The buys

      were made with different confidential informants, both of whom had contacted

      the authorities with the information that it was possible to purchase heroin from

      Gabbard and her boyfriend. On October 4, 2017, based on the controlled buys,

      officers obtained and executed a search warrant on Gabbard’s home. Gabbard,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1618 | December 21, 2018   Page 2 of 12
      who was able to see officers approaching her home to execute the search

      warrant, secreted quantities of methamphetamine and heroin inside her vagina.

      When Officers searched Gabbard’s home approximately twenty-eight grams of

      methamphetamine, a handgun, a scale, and plastic sandwich bags commonly

      used to package drugs were found.


[5]   Gabbard was arrested on multiple charges and was taken into custody. While

      being held at the Bartholomew County Jail, Gabbard removed the

      methamphetamine and heroin from her vagina and provided the

      methamphetamine to fellow inmate Mary Snyder (Snyder) in exchange for

      credits at the jail commissary. Snyder, in turn, placed the methamphetamine in

      a bottle of hair conditioner which was later retrieved by inmate Angela Blair

      (Blair). Blair died in jail during the evening of October 7, 2017, of

      methamphetamine intoxication.


[6]   On October 11, 2017, the State filed an Information in Cause Number 03D01-

      1710-F2-5616 (Cause -5616), charging Gabbard with dealing in

      methamphetamine, as a Level 2 felony; possession of methamphetamine, as a

      Level 3 felony; and two Counts of dealing in a narcotic drug, both as Level 5

      felonies for the drugs found in her home. On February 8, 2018, the State filed

      an Information in Cause Number 03D01-1802-F5-733 (Cause -733), charging

      Gabbard with dealing in methamphetamine, a Level 5 felony; trafficking with

      an inmate in a controlled substance, a Level 5 felony; possession of a narcotic

      drug, a Level 6 felony; and possession of methamphetamine, a Level 6 felony,



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1618 | December 21, 2018   Page 3 of 12
      for the offenses she committed while being held in jail on the Cause -5616

      charges.


[7]   On May 14, 2018, Gabbard pleaded guilty to dealing in methamphetamine as a

      Level 3 felony in Cause -5616. Gabbard also pleaded guilty to dealing in

      methamphetamine as a Level 5 felony in Cause -733. Pursuant to an agreement

      with the State, all other charges were dismissed.


[8]   On June 1, 2018, the State filed its pre-sentence investigation report (PSI) which

      revealed that Gabbard had two juvenile adjudications, one in 2003 for alcohol

      possession and one in 2007 for battery. She received probation for each of

      those adjudications. As an adult, Gabbard had a 2010 conviction for illegal

      alcohol possession for which she received probation. In 2015, Gabbard pleaded

      guilty to Class D felony possession of a controlled substance. She received a

      one-year sentence which was suspended to time-served and probation. Less

      than four months later, the State filed a petition to revoke Gabbard’s probation

      based upon her testing positive for methamphetamine and heroin. The trial

      court revoked Gabbard’s probation, and she served 175 days in jail. While she

      was being held on the instant cases, the State filed an Information, charging

      Gabbard with conversion.


[9]   Gabbard reported to her PSI investigator that she and her boyfriend used some

      of the money they earned dealing drugs to support themselves. Gabbard

      reported doing cleaning work in addition to dealing drugs. Gabbard had no

      other verifiable employment for the previous two years. She also reported that


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1618 | December 21, 2018   Page 4 of 12
       Snyder gave the methamphetamine to Blair and that it was “Mary’s fault” that

       Blair died. (Confidential App. Vol. III, p.7). Gabbard felt that “Mary killed her

       because she gave it to her.” (Conf. App. Vol. III, p. 7). Gabbard had lost

       contact with her adoptive mother because of her drug use.


[10]   Gabbard reportedly began abusing heroin and methamphetamine at the age of

       twenty-three, which she attributed to hanging around with the wrong crowd.

       Gabbard started by snorting and smoking drugs, but later she began injecting

       them. Gabbard sought treatment at the Indiana Treatment Center on one

       occasion. She was prescribed methadone but ceased attending treatment after

       approximately four weeks. Gabbard was attending Celebrate Recovery pending

       resolution of her cases.


[11]   On June 12, 2018, the trial court held Gabbard’s sentencing hearing. Gabbard

       was twenty-eight years old at the time of her sentencing. Gabbard maintained

       repeatedly at her sentencing hearing that she had never sold any drugs. Rather,

       she claimed that she gave drugs away to her friends without accepting payment

       in order to support her drug habit. Gabbard testified that hiding the drugs in

       her vagina was not planned and that it “just happened.” (Transcript Vol. II, p.

       24). Gabbard further testified that she brought the drugs into jail to avoid

       withdrawal symptoms, but she also maintained that she never used any of the

       drugs for that purpose. Gabbard stated that she felt responsible for Blair’s death

       even though she did not directly hand Blair the methamphetamine and that “if I

       had never brung [sic] that it [sic] she would still probably be here.” (Tr. Vol. II,

       p. 25).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1618 | December 21, 2018   Page 5 of 12
[12]   Gabbard’s counsel argued that Gabbard’s lack of criminal record and her need

       for treatment merited a reduced sentence. He also argued that Gabbard “does

       feel responsible for [Blair’s] passing, because clearly if she hadn’t brought the

       stuff in, [Snyder] wouldn’t have taken it.” (Tr. Vol. II, p. 38). The trial court

       found Gabbard’s statement that she was only dealing to support her habit to

       lack credibility, which the trial court believed indicated that Gabbard did not

       take responsibility for her actions.


[13]   In its written sentencing order, the trial court found, in relevant part, as follows:


               The Court finds no mitigating circumstances. The Court
               finds the following aggravating circumstances in cause number
               03DOl-1802-F5-733 and O3DOl-l7lO-F2-5616:

               1. The defendant has a history of criminal or delinquent
               behavior.

               2. The defendant has been on probation in the past and has
               been revoked.

               3. The defendant has had opportunity for treatment outside
               of a penal facility and has been unsuccessful.

               The Court finds the following aggravating circumstance in
               only cause number 03DOl-1802-F5-733:

               4. A person died “in part” as a result of defendant’s
               actions.

       (Appellant’s App. Vol. II, p. 56). The trial court sentenced Gabbard to fifteen

       years with the Indiana Department of Correction for the Level 3 felony dealing

       offense and to six years for the Level 5 felony offense, to be served

       consecutively, for an aggregate sentence of twenty-one years.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1618 | December 21, 2018   Page 6 of 12
[14]   Gabbard now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                             I. Abuse of Discretion

[15]   Gabbard contends that the trial court abused its discretion when it found as an

       aggravating circumstance that Blair died in part because of Gabbard’s actions.

       So long as a sentence imposed by a trial court is within the statutory range for

       the offense, it is subject to review only for an abuse of discretion. Anglemyer v.

       State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind.

       2007). An abuse of the trial court’s sentencing discretion occurs if its decision is

       clearly against the logic and effect of the facts and circumstances before the

       court, or the reasonable, probable, and actual deductions to be drawn

       therefrom. Id. A trial court abuses its discretion when it fails to enter a

       sentencing statement at all, its stated reasons for imposing sentence are not

       supported by the record, its sentencing statement omits reasons that are clearly

       supported by the record and advanced for consideration, or its reasons for

       imposing sentence are improper as a matter of law. Id. at 490-91.


[16]   Gabbard acknowledges on appeal that her sentence is within the statutory

       guidelines for the offenses. However, Gabbard argues that the trial court

       abused its discretion because she did not plead guilty to causing Blair’s death

       and no evidence in the record established a direct line of culpability to her for

       Blair’s death. We begin by noting that the trial court found the challenged

       aggravating circumstance only as to the jailhouse dealing in methamphetamine


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1618 | December 21, 2018   Page 7 of 12
       conviction in Cause -733. Therefore, we conclude that Gabbard raises no abuse

       of discretion claim pertaining to her sentence for her other dealing conviction in

       Cause -5616.


[17]   The gravamen of Gabbard’s argument is that the challenged aggravating

       circumstance was not supported by the record. However, there was evidence

       before the trial court that Gabbard admitted giving the methamphetamine to

       Snyder and that Gabbard reported that Snyder hid it in a conditioner bottle.

       Video surveillance footage from the jail substantiated Gabbard’s account and

       showed Snyder placing a conditioner bottle on the floor of her cell and Blair

       later picking up the same bottle and taking it with her to her bed. Blair died the

       next day of methamphetamine intoxication. Gabbard acknowledged at her

       sentencing hearing that she felt responsible for Blair’s death and that if she had

       not brought the methamphetamine into the jail, Blair would still be alive.

       Gabbard’s counsel also argued at sentencing that Gabbard felt responsible for

       her part in causing Blair’s death. Given this evidence and argument, we cannot

       say that the trial court’s aggravating circumstance was unsupported by the

       record or that it was clearly against the logic and effect of the facts and

       circumstances before the court. Anglemyer v. State, 868 N.E.2d at 490-91.


[18]   However, even if the trial court had abused its discretion when it found as an

       aggravating circumstance that Gabbard was at least in part responsible for

       Blair’s death, we would still affirm the trial court’s sentence. The finding of

       even one valid aggravating circumstance is sufficient to impose both an

       aggravated sentence and consecutive sentences. Gleason v. State, 965 N.E.2d

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1618 | December 21, 2018   Page 8 of 12
       702, 712 (Ind. Ct. App. 2012). Here, the trial court found three other

       aggravating circumstances applicable to Gabbard’s conviction for the jailhouse

       dealing offense, namely her criminal record, the fact that Gabbard had her

       probation revoked in the past, and that she had the opportunity for treatment

       outside of a penal facility but had been unsuccessful. Gabbard does not

       challenge the validity of these additional aggravating circumstances, and,

       therefore, we conclude that her argument fails for the additional reason that

       those aggravating circumstances justified the sentence imposed by the trial

       court.


                                        II. Appropriateness of Sentence

[19]   Gabbard also contends that her sentence is inappropriate given the nature of her

       offenses and her character. The Indiana Constitution and Indiana Appellate

       Rule 7(B) permit an appellate court to revise a sentence if, after due

       consideration of the trial court’s decision, the sentence is found to be

       inappropriate in light of the nature of the offense and the character of the

       offender. Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018). “The principal role

       of such review is to attempt to leaven the outliers.” Cardwell v. State, 895

       N.E.2d 1219, 1225 (Ind. 2008). The defendant bears the burden to persuade the

       reviewing court that the sentence imposed is inappropriate. Robinson, 91

       N.E.3d at 577.


[20]   Gabbard pleaded guilty to Level 3 and Level 5 felony dealing in

       methamphetamine. The sentencing range for a Level 3 felony is from three to

       sixteen years, with nine years being the advisory sentence. I.C. § 35-50-2-5(b).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1618 | December 21, 2018   Page 9 of 12
       The sentencing range for a Level 5 felony is from one to six years, with three

       years being the advisory sentence. I.C. § 35-50-2-6(b). Here, the trial court

       imposed a fifteen-year sentence for the Level 3 felony conviction and a six-year

       sentence for the Level 5 felony conviction, to be served consecutively. Thus,

       the trial court’s sentence represents the near-maximum permitted for the

       offenses.


[21]   Gabbard has little to argue regarding the nature of her offenses apart from her

       contention that her “intentions in the actions she took were to support her own

       habit, not to profit financially.” (Appellant’s Br. p. 15). However, this

       contention is belied by evidence in the record that she accepted money from the

       confidential informants during the controlled buys and that she and her

       boyfriend used some of the profits from their drug dealing to support

       themselves. In addition, Gabbard brought drugs into the jail and continued to

       deal drugs even as she was being held on drug dealing charges. As a result of

       her drug dealing in jail, Blair died of methamphetamine intoxication. In light

       of these circumstances, we conclude that Gabbard has not met her burden to

       persuade us that her sentence is inappropriate given the nature of her offenses.

       Robinson, 91 N.E.3d at 577.


[22]   As to her character, we note that Gabbard had two contacts with the juvenile

       justice system and one previous felony conviction for a drug offense as an adult.

       Gabbard has received the benefit of suspended sentences, probation, and an

       executed sentence after her probation revoked on one occasion for testing

       positive for drug use. Gabbard also had a conversion charge pending at the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1618 | December 21, 2018   Page 10 of 12
       time of sentencing. Although Gabbard’s criminal history is not the most severe

       we have encountered, we do not conclude that it renders her sentence

       inappropriate.


[23]   In addition, despite the negative impact it has had on her life, Gabbard has

       failed to address her drug addiction, which has escalated from snorting and

       smoking to intravenous use. There is no evidence in the record that Gabbard

       has sought assistance for her drug use apart from one failed attempt at the

       Indiana Treatment Center at some unspecified time in the past. While we

       commend Gabbard for her apparent attempt to address her substance abuse

       pending the resolution of her case, we do not find that these late-breaking

       efforts render her sentence inappropriate.


[24]   Gabbard contends that her sentence is inappropriate because she demonstrated

       remorse for her offenses that the trial court did not credit. However, although

       Gabbard pleaded guilty to the two dealing offenses, she received a great benefit

       for her plea in that the State agreed to dismiss the six remaining felony charges

       pending against her. In addition, Gabbard maintained at her sentencing

       hearing that she had not actually sold any drugs when she dealt, an

       equivocation which the trial court justly found demonstrated that she had not

       truly accepted responsibility for the offenses. Gabbard also thought that

       smuggling drugs into jail was something that “just happened,” which we

       conclude demonstrated a lack of insight into the gravity of the offense. (Tr.

       Vol. II, p. 24). In light of her criminal history, unaddressed substance abuse,

       the substantial benefit Gabbard received from her plea, and her equivocation at

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1618 | December 21, 2018   Page 11 of 12
       her sentencing hearing, we conclude that Gabbard has failed to demonstrate

       that her sentence is inappropriate given her character. Robinson, 91 N.E.3d at

       577.


                                             CONCLUSION
[25]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion when it sentenced Gabbard and that her sentence is not inappropriate

       given the nature of her offenses and her character.


[26]   Affirmed.


[27]   Kirsch, J. and Robb, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1618 | December 21, 2018   Page 12 of 12
