MEMORANDUM DECISION
                                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                           Mar 09 2020, 9:36 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                       CLERK
                                                                            Indiana Supreme Court
court except for the purpose of establishing                                   Court of Appeals
                                                                                 and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
William T. Myers                                        Curtis T. Hill, Jr.
Whitehurst & Myers Law                                  Attorney General of Indiana
Marion, Indiana
                                                        Josiah Swinney
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Leaha A. (Stepler) Fishbaugh,                           March 9, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1965
        v.                                              Appeal from the Huntington
                                                        Superior Court
State of Indiana,                                       The Honorable Jennifer E.
Appellee-Plaintiff,                                     Newton, Judge
                                                        Trial Court Cause No.
                                                        35D01-1610-F3-208



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1965 | March 9, 2020                       Page 1 of 10
                                 Case Summary and Issues
[1]   Leaha Fishbaugh1 pleaded guilty to one count of Level 3 felony dealing in

      cocaine or a narcotic drug (hydrocodone) and one count of Level 5 felony

      dealing in cocaine or a narcotic drug (heroin). She was sentenced to sixteen

      years for the Level 3 dealing count – with fourteen years executed in the

      Indiana Department of Correction (“DOC”) and two years suspended to

      probation – and a concurrent sentence of four years executed in the DOC for

      the Level 5 dealing count. Fishbaugh raises one issue for our review, which we

      expand and restate as two: (1) whether the trial court abused its discretion by

      considering a material element of her crime as an aggravating circumstance;

      and (2) whether the trial court abused its discretion by not considering her

      guilty plea as a mitigating circumstance. Concluding that the trial court did not

      abuse its discretion, we affirm.



                              Facts and Procedural History
[2]   On February 24, 2016, Fishbaugh sold heroin to a confidential informant

      (“CI”) who worked for the Huntington City Police Department. The

      transaction took place in Fishbaugh’s room at a local motel and was audio

      and video recorded. The video recording of the transaction showed




      1
       In its brief, the State refers to Appellant as “Leaha Stepler.” “Stepler” is the last name of Fishbaugh’s ex-
      husband. However, because Appellant has remarried and in her brief lists her last name as “Fishbaugh,” we
      do the same.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1965 | March 9, 2020                     Page 2 of 10
      Fishbaugh separating the heroin for sale from a five-gram mass of heroin

      before packaging the purchased heroin. Fishbaugh told the CI that she did

      not cut her heroin with other substances because she wanted to uphold her

      reputation as a dealer who sold a “quality product[.]” Sentencing Hearing

      at 16. Fishbaugh told the CI that, if the CI returned the next day to

      purchase more heroin, Fishbaugh would lower the price.


[3]   Two days later, on February 26, 2016, Fishbaugh sold the CI pills

      comprised of hydrocodone mixed with acetaminophen. The total weight of

      the pills was 2.47 grams. The video recording of the February 26 sale

      showed that it occurred in Fishbaugh’s motel room while Fishbaugh was

      seated on a bed, and that a child between the ages of one and three was

      lying on the bed while the transaction took place.2 Fishbaugh told the CI

      that, if the CI wanted to buy additional drugs, Fishbaugh would have

      Xanax and Adderall available for purchase at a later date. Fishbaugh

      explained to the CI that she had already paid for thirty Adderall pills that

      she had yet to receive.


[4]   On October 19, 2016, the State charged Fishbaugh with one count of

      dealing in cocaine or a narcotic drug (hydrocodone) as a Level 3 felony.

      The offense was a Level 3 felony because the amount of the drug was at

      least one gram but less than five grams, and the offense was committed in




      2
       The evidence of record indicates that the child present during the drug transaction was Fishbaugh’s
      grandchild.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1965 | March 9, 2020                   Page 3 of 10
      the physical presence of a child less than eighteen years of age with

      Fishbaugh’s knowledge that the child was present and might be able to see or

      hear the offense. See Ind. Code §§ 35-48-4-1 (2014) and 35-48-1-16.5(6) (2014).

      Fishbaugh was also charged with one count of dealing in cocaine or a narcotic

      drug (heroin) as a Level 5 felony.


[5]   Fishbaugh pleaded guilty in an open plea to both dealing counts. At her

      sentencing hearing, held on May 23, 2017, Fishbaugh (by counsel) asked

      the trial court to consider the following as mitigating circumstances:


              [S]he’s embarrassed, um, but more importantly she is
              remorseful, um, for her activities. Um, so we would ask the
              Court to find a mitigator of remorse. Um, Judge, we’d ask the
              Court to consider that she did enter a plea voluntarily, uh, she
              entered an open plea, uh, voluntarily, so she has accepted
              responsibility for her actions. Um, Judge, she indicates that
              the reason that she committed this offense is because she was
              paying, uh, selling dr– drugs effectively to pay for her own
              addiction. Uh, she does, um, have a drug problem, um, and
              she wants treatment for that and so we’d ask you to find her
              substance abuse as a mitigating circumstance.


      Sentencing Hearing at 9-10.


[6]   The trial court ultimately sentenced Fishbaugh to concurrent sentences of

      sixteen years in the DOC for the Level 3 felony, with two years suspended




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1965 | March 9, 2020   Page 4 of 10
      to probation, and four years executed in the DOC for the Level 5 felony. 3

      In its sentencing statement, the trial court explained:


               All right. I’m going to show that the [presentence
               investigation report (PSI)] is made part of the record. Um,
               I’m going to find aggravating circumstances of your prior
               criminal history, including two (2) prior felonies, four (4) prior
               misdemeanors, [and] five (5) Petitions to Revoke Probation.
               Um, this case isn’t– consists of more than one (1) count and
               the fact that you had a child present during Count 1, um, I can’t
               even fathom. You put yourself in that situation, yet you put–
               you[ are] exposing a young child who doesn’t have [a] choice to
               that situation. Drugs are a major problem in our community.
               Especially, heroine [sic] and what it looks like to me is that you
               were definitely perpetuating that problem. Um, I don’t believe
               that your [sic] sorry for what you did. I believe your [sic]
               sorry you got caught and your [sic] sorry you’re going to
               prison. Your knowledge of– your knowledge of drugs and
               sale– and selling drugs that you told [sic] the Confidential
               Informant is enough to show me that this isn’t just a simple,
               um, dealing to feed your own habit, um, your [sic] dealing to
               make money. Therefore, on Count 1 I’m going to sentence
               you to sixteen (16) years. I will suspend, um, two (2) years of
               that to Probation. On Count 2, I will sentence you to four (4)
               years, none, suspended.


      Id. at 24-25.


[7]   On July 13, 2017, Fishbaugh filed a pro se petition for permission to file a

      belated notice of appeal, stating that she wished to appeal her sentence.



      3
        The advisory sentence for a Level 3 felony is nine years with a sentencing range of three to sixteen years.
      Ind. Code § 35-50-2-5(b). The advisory sentence for a Level 5 felony is three years with a sentencing range of
      one to six years. Ind. Code § 35-50-2-6(b).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1965 | March 9, 2020                     Page 5 of 10
      However, on July 24, 2017, the trial court summarily denied the petition.

      Almost two years later, on June 27, 2019, the State Public Defender’s office

      entered its appearance on behalf of Fishbaugh and filed a motion for relief

      from judgment. The motion was granted by the trial court, and Fishbaugh’s

      petition to file a belated notice of appeal was reinstated. On July 12, 2019,

      Fishbaugh’s counsel filed a verified motion for permission to file a belated

      notice of appeal, which the trial court granted on July 24, 2019. Fishbaugh

      now appeals.



                                Discussion and Decision
                                       Abuse of Discretion
                                      A. Standard of Review
[8]   We initially observe that “sentencing decisions rest within the sound discretion

      of the trial court and are reviewed on appeal 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. An abuse of discretion occurs if the trial court’s 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. The

      trial court can abuse its discretion by: (1) issuing an inadequate sentencing

      statement, (2) finding aggravating or mitigating factors that are not supported

      by the record, (3) omitting factors that are clearly supported by the record and

      advanced for consideration, (4) or by finding factors that are improper as a

      matter of law. See id. at 490-91.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1965 | March 9, 2020   Page 6 of 10
                                 B. Aggravating Circumstances
[9]    Fishbaugh first contends that the trial court abused its discretion at sentencing

       because, according to Fishbaugh, the court improperly considered as an

       aggravating circumstance the presence of a child during the drug deal because

       the presence of a child is a material element of Level 3 dealing in cocaine or a

       narcotic drug. It is well-settled that “a material element of a crime may not be

       used as an aggravating factor to support an enhanced sentence.” McElroy v.

       State, 865 N.E.2d 584, 589 (Ind. 2007). If the trial court relies upon an

       aggravating circumstance that is also a material element of the offense, then the

       trial court abuses its discretion. See Gomillia v. State, 13 N.E.3d 846, 853 (Ind.

       2014).


[10]   Here, it is not entirely clear that the court found the presence of a child as an

       aggravating circumstance. In sentencing Fishbaugh (and as provided supra ¶ 6),

       the trial court stated in relevant part:

                I’m going to find aggravating circumstances of your prior criminal
                history . . . . [T]his case . . . consists of more than one (1)
                count and the fact that you had a child present during Count 1,
                um, I can’t even fathom. You put yourself in that situation, yet
                you put– you[ are] exposing a young child who doesn’t have [a]
                choice to that situation.


       Sentencing Hearing at 24 (emphasis added). The trial court expressly found

       Fishbaugh’s criminal history as an aggravating circumstance. See, e.g., Deloney

       v. State, 938 N.E.2d 724, 732 (Ind. Ct. App. 2010) (holding that a defendant’s

       criminal history is a valid aggravating circumstance), trans. denied. The trial

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1965 | March 9, 2020   Page 7 of 10
       court then commented on the fact that the child was present for the drug

       transaction.


[11]   However, even if we were to find that the trial court abused its discretion in

       considering the presence of a child as an aggravator, we still would find no error

       in Fishbaugh’s sentence. When a trial court improperly applies an aggravator,

       a sentence enhancement may be upheld if other valid aggravators exist.

       Edrington v. State, 909 N.E.2d 1093, 1097 (Ind. Ct. App. 2009), trans. denied.

       Moreover, a single aggravating factor is sufficient to support an enhanced

       sentence. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008).

       Fishbaugh has two prior felony convictions (Class C felony forgery and

       Class D felony non-support of a dependent child) and four prior

       misdemeanor convictions. In addition, five petitions to revoke probation

       have been filed against her. Even a limited criminal history can be

       considered a valid aggravator. Atwood v. State, 905 N.E.2d 479, 488 (Ind. Ct.

       App. 2009), trans. denied. Fishbaugh’s criminal history was enough to support

       her sentence. The trial court did not abuse its discretion in this regard.


                     C. Guilty Plea as a Mitigating Circumstance
[12]   Fishbaugh next contends that the trial court abused its discretion by failing to

       consider her guilty plea as a mitigating circumstance. We disagree.


[13]   First, a trial court is not obligated to accept a defendant’s claim as to what

       constitutes a mitigating circumstance. Rascoe v. State, 736 N.E.2d 246, 249 (Ind.

       2000). Secondly, an allegation that the trial court abused its discretion by not

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1965 | March 9, 2020   Page 8 of 10
       identifying a defendant’s guilty plea as a mitigator “requires the defendant to

       establish that the mitigating evidence is not only supported by the record but

       also that the mitigating evidence is significant.” Anglemyer, 875 N.E.2d at 220-

       21. “[A] guilty plea may not be significantly mitigating when it does not

       demonstrate the defendant’s acceptance of responsibility . . . or when the

       defendant receives a substantial benefit in return for the plea.” Id. at 221

       (citing Francis v. State, 817 N.E.2d 235, 238 n.3 (Ind. 2004) and Sensback v. State,

       720 N.E.2d 1160, 1165 (Ind. 1999)). Additionally, “[a] guilty plea is not

       necessarily a mitigating factor where the . . . evidence against the defendant is

       so strong that the decision to plead guilty is merely pragmatic.” Amalfitano v.

       State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011), trans. denied.


[14]   At sentencing, the trial court addressed Fishbaugh’s assertion that she accepted

       responsibility for her actions, stating: “I don’t believe that your [sic] sorry for

       what you did. I believe your [sic] sorry you got caught and your [sic] sorry your

       [sic] going to prison. . . . [Y]our knowledge of drugs and . . . selling drugs . . . is

       enough to show me that this isn’t just a simple, um, dealing to feed your own

       habit, um, your [sic] dealing to make money.” Sentencing Hearing at 24-25.

       Furthermore, Fishbaugh’s decision to plead guilty was surely pragmatic, as the

       State’s case against Fishbaugh, which was premised on two audio and video

       recorded controlled drug buys, was very strong. Thus, Fishbaugh’s argument

       that the trial court abused its discretion when it did not find her guilty plea to be

       a significant mitigating circumstance fails.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1965 | March 9, 2020   Page 9 of 10
                                              Conclusion
[15]   In sentencing Fishbaugh, the trial court relied on a valid aggravating

       circumstance and did not abuse its discretion when it did not recognize

       Fishbaugh’s guilty plea as a significant mitigating circumstance. We affirm

       Fishbaugh’s sentence.


[16]   Affirmed.


       Bradford, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1965 | March 9, 2020   Page 10 of 10
