MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                        FILED
court except for the purpose of establishing                                Dec 12 2017, 8:53 am

the defense of res judicata, collateral                                          CLERK
estoppel, or the law of the case.                                            Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr.                                  Curtis T. Hill, Jr.
Deputy Public Defender                                  Attorney General of Indiana
Fort Wayne, Indiana
                                                        Laura R. Anderson
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Dominique L. Gooden,                                    December 12, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A04-1708-CR-1997
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Frances C. Gull,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        02D05-1512-F5-360



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A04-1708-CR-1997 | December 12, 2017             Page 1 of 7
                                              Case Summary
[1]   On at least four separate occasions, Appellant-Defendant Dominique L.

      Gooden either attempted to take or assisted in an attempt to take meat products

      from a Kroger store located in Allen County without paying for the products.

      Appellee-Plaintiff the State of Indiana (“the State”) subsequently charged

      Gooden with one count of Level 5 felony corrupt business influence. On

      December 28, 2015, Gooden pled guilty as charged. Following her guilty plea,

      Gooden was placed in the Drug Court Diversion Program (“DCDP”).

      Gooden’s participation in the DCDP was ultimately terminated, however, after

      Gooden committed numerous violations of the rules of the program. Gooden

      was then sentenced to a four-year executed term in connection to the

      underlying felony conviction. Gooden challenges the appropriateness of this

      sentence on appeal. We affirm.



                              Facts and Procedural History1
[2]   On September 10, 2015, Gooden attempted to push a “cart full of meat

      products” out of the Kroger store without paying but abandoned the cart when

      she noticed that she was being watched by a store employee. Appellant’s App.

      Vol. II–Confidential, p. 39. Gooden later admitted that she had attempted “to




      1
        Initially, we note that we have not been provided with a copy of the transcript of the guilty plea hearing,
      which would contain the factual basis to support Gooden’s conviction, on appeal. As such, for the purpose
      of providing context to the reader, we will state the facts as they are set forth in the probable cause affidavit
      which supported the filing of the underlying charge.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1708-CR-1997 | December 12, 2017               Page 2 of 7
      take a cart full of meat and other miscellaneous food items out of the front

      entrance doors but was spooked by an employee standing at the doors.”

      Appellant’s App. Vol. II–Confidential, p. 40. After becoming “spooked,”

      Gooden “abandoned the cart and left the store.” Appellant’s App. Vol. II–

      Confidential, p. 40. Gooden claimed that she had attempted to take the items

      because she “did not have money and had to feed her kids.” Appellant’s App.

      Vol. II–Confidential, p. 40.


[3]   On September 15, 2015, Gooden’s mother, Jody, was stopped by a Kroger Loss

      Prevention Specialist as she exited the Kroger with a cart full of meat products.

      The value of these meat products was $477.26. When asked to verify the

      purchase, Jody pushed the cart towards the Loss Prevention Specialist and ran

      to the vehicle in which Gooden was waiting. Gooden then drove away.

      Gooden later admitted that she had driven Jody to the store for the purpose of

      stealing items from the store and that Jody “gave her money to drive her” to the

      store. Appellant’s App. Vol. II–Confidential, p. 40.


[4]   Two days later, on September 17, 2015, Jody and a female associate pushed a

      cart containing approximately $600.00 worth of meat products out of the

      Kroger without paying for the items. Jody and the associate pushed the cart to

      the vehicle in which Gooden was waiting. Gooden later admitted that she

      assisted with the theft by helping Jody and the associate load the stolen items

      into the vehicle.




      Court of Appeals of Indiana | Memorandum Decision 02A04-1708-CR-1997 | December 12, 2017   Page 3 of 7
[5]   Gooden, Jody, and the associate returned to the Kroger on September 18, 2015.

      Jody and the associate entered the store, filled a cart with $632.31 worth of

      meat products, pushed it out of the store without paying, and walked to the

      vehicle in which Gooden was waiting. Before the women could leave the

      Kroger parking lot, an officer arrived and arrested Jody and the associate.


[6]   On December 17, 2015, the State charged Gooden with one count of Level 5

      felony corrupt business influence. On December 28, 2015, Gooden entered into

      a plea agreement under the terms of which Gooden pled guilty as charged, her

      guilty plea was taken under advisement, and she was placed in the DCDP.

      After being placed in the DCDP, Gooden accumulated ten positive drug

      screens, failed to appear for one drug screen, and received seven sanctions

      including community service and jail time for periods ranging from two to

      seven days. Additionally, on June 24, 2017, Gooden intentionally overdosed

      on heroin and was hospitalized at Parkview Behavioral Health. She was

      released from the hospital two days later on June 26, 2017.


[7]   On July 10, 2017, the State filed a verified petition seeking to terminate

      Gooden’s participation in the DCDP after Gooden again violated the rules of

      the DCDP by purchasing and ingesting heroin, testing positive for morphine

      and codeine on a urine screen taken on June 27, 2017, and failing to comply

      with medication-assisted treatment. The trial court subsequently revoked

      Gooden’s placement in the DCDP, stating “[w]ell, we’re way past second

      chances … I mean we’re into double digit second chances[.]” Tr. Vol. II, pp. 9–



      Court of Appeals of Indiana | Memorandum Decision 02A04-1708-CR-1997 | December 12, 2017   Page 4 of 7
      10. After revoking Gooden’s placement in the DCDP, the trial court sentenced

      Gooden to a four-year executed term of imprisonment. This appeal follows.



                                  Discussion and Decision2
[8]   Gooden contends that her four-year sentence is inappropriate in light of the

      nature of her offense and her character. Indiana Appellate Rule 7(B) provides

      that “The 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.” In analyzing such claims, we “‘concentrate less on comparing the

      facts of [the case at issue] to others, whether real or hypothetical, and more on

      focusing on the nature, extent, and depravity of the offense for which the

      defendant is being sentenced, and what it reveals about the defendant’s

      character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008) (quoting

      Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied). The

      defendant bears the burden of persuading us that his sentence is inappropriate.

      Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).


[9]   In this case, Gooden pled guilty to Level 5 felony corrupt business influence.

      Indiana Code section 35-50-2-6(b) provides that “[a] person who commits a




      2
         To the extent that Gooden attempts to challenge her conviction for corrupt business practices, such a
      challenge cannot succeed because Gooden waived the right to challenge her sentence by pleading guilty. See
      Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008) (providing that when a defendant pleads guilty, he waives the
      right to appeal his conviction).

      Court of Appeals of Indiana | Memorandum Decision 02A04-1708-CR-1997 | December 12, 2017          Page 5 of 7
       Level 5 felony … shall be imprisoned for a fixed term of between one (1) and

       six (6) years, with the advisory sentence being three (3) years.” The four-year

       sentence imposed by the trial court falls within the statutorily-accepted range for

       a Level 5 felony.


[10]   With respect to the nature of Gooden’s offense, the record reveals that Gooden

       was confirmed to have taken part in at least four thefts or attempted thefts from

       Kroger. The thefts and attempted thefts took place over an eight-day period

       and involved at least $1700.00 worth of meat products belonging to Kroger.

       While Gooden claimed that she only participated in the thefts and attempted

       thefts so to feed her children, the significant amount of meat products which

       Gooden, Jody, and their associate attempted to steal far exceeds the amount

       necessary to feed Gooden’s family. Further, we are unconvinced by Gooden’s

       claim that her actions were not serious merely because her victim, i.e., Kroger,

       is a large corporation.


[11]   With respect to Gooden’s character, the record reflects that the instant thefts

       and attempted thefts were not Gooden’s first encounter with the criminal justice

       system. Gooden was alleged to have committed delinquent behavior on three

       separate occasions as a juvenile. Although she was never adjudicated to be a

       delinquent child, she was given informal adjustments in these cases, placed on

       administrative probation, and ordered to participate in community service. As

       an adult, Gooden has been convicted of Class D felony resisting law

       enforcement, two counts of Class D felony receiving stolen property, and Class

       A misdemeanor driving while suspended. In fact, the record reflects that

       Court of Appeals of Indiana | Memorandum Decision 02A04-1708-CR-1997 | December 12, 2017   Page 6 of 7
       Gooden was on probation for the Class D felony receiving stolen property

       convictions at the time she committed the criminal acts at issue here. Gooden

       has also failed to benefit from numerous attempts at substance abuse

       rehabilitation and failed to comply with the terms of her participation in the

       DCDP.


[12]   Gooden was initially given the opportunity to avoid incarceration and was

       presented with the opportunity to seek rehabilitation through her placement in

       the DCDP. The record clearly reveals that both this and other prior attempts at

       rehabilitation have failed. In addition, the Indiana Risk Assessment System-

       Community Supervision Tool indicates that Gooden is a “high” risk to

       reoffend. Appellant’s App. Vol. II–Confidential, p. 34.


[13]   Upon review, we conclude that Gooden has failed to convince us that her four-

       year sentence is inappropriate in light of the nature of her offense and her

       character. As such, we affirm the judgment of the trial court.


[14]   The judgment of the trial court is affirmed.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1708-CR-1997 | December 12, 2017   Page 7 of 7
