MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any                                   Sep 30 2019, 10:59 am

court except for the purpose of establishing                                     CLERK
                                                                             Indiana Supreme Court
the defense of res judicata, collateral                                         Court of Appeals
                                                                                  and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana
                                                         Sierra A. Murray
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Jesslyn Powell,                                          September 30, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-809
        v.                                               Appeal from the Jefferson Circuit
                                                         Court
State of Indiana,                                        The Honorable Steven M. Fleece,
Appellee-Plaintiff                                       Senior Judge
                                                         Trial Court Cause No.
                                                         39C01-1808-F3-866



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-809 | September 30, 2019                    Page 1 of 8
                                             Case Summary
[1]   Jesslyn Powell appeals her nine-year sentence imposed by the trial court

      following her guilty plea to level 3 felony conspiracy to deal methamphetamine.

      She argues that her sentence is inappropriate in light of the nature of the offense

      and her character. Finding that Powell has not met her burden of

      demonstrating that her sentence is inappropriate, we affirm.


                                 Facts and Procedural History
[2]   On August 17, 2018, Powell facilitated a purchase of a half-ounce of

      methamphetamine between her co-conspirator, Robert Taylor, and her

      distributor in Louisville, Kentucky. Taylor desired to purchase the half-ounce,

      and Powell knew that her distributor in Louisville dealt in large amounts of

      methamphetamine. Powell and Taylor drove to Louisville and made the

      purchase. On their way back from Louisville, Taylor immediately sold a

      quarter of an ounce to a person in Clark County, Indiana. Afterwards, Powell

      and Taylor returned to a home where Taylor had been staying in Jefferson

      County. According to the probable cause affidavit, the Madison Police

      Department executed a search warrant at the home regarding a

      methamphetamine investigation. Powell, Taylor, and another female were

      inside. During the search of the home, officers found 9.2 grams of

      methamphetamine, multiple bags used to package methamphetamine for sale,

      digital scales, 59 Alprazolam pills, drug paraphernalia, and a plastic tub that

      contained crystalline pieces that tested positive for methamphetamine. Powell

      was subsequently arrested, and a search of her purse revealed a set of digital

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-809 | September 30, 2019   Page 2 of 8
      scales and clear baggies containing a crystalline substance. Appellant’s App.

      Vol. 2 at 15-16.


[3]   The State charged Powell with level 3 felony dealing in methamphetamine,

      level 3 felony conspiracy to deal methamphetamine, level 5 felony possession of

      methamphetamine, class A misdemeanor possession of a controlled substance,

      and class C misdemeanor possession of paraphernalia. In September 2018,

      pursuant to a written plea agreement, Powell pled guilty to the conspiracy

      charge, and the State agreed to drop the other charges. The plea agreement left

      sentencing to the trial court’s discretion. Pursuant to the plea agreement,

      Powell waived her right to challenge her sentence under Indiana Appellate Rule

      7(B). Id. at 46. However, during the guilty plea hearing, the trial court

      informed Powell, that she could appeal her sentence, without any objections

      from either party’s counsel.1 Powell also signed an addendum to the plea

      agreement in which she agreed to work as a confidential informant for the

      Indiana State Police in exchange for her release from jail. Powell failed to

      abide by the terms of the addendum. During sentencing, the trial court found

      no compelling aggravating or mitigating circumstances but did note Powell’s

      past convictions for possession of cocaine, marijuana, and narcotic drugs. The

      trial court sentenced Powell to nine years executed. This appeal ensued.




      1
       Consequently, the waiver provision in the plea agreement was a nullity. See Ricci v. State, 894 N.E.2d 1089,
      1093-94 (Ind. Ct. App. 2008) (finding that Ricci did not surrender right to appeal his sentence
      notwithstanding waiver provision in plea agreement when trial court clearly stated at plea hearing, without
      any objection from either party’s counsel, that Ricci could appeal his sentence), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-809 | September 30, 2019                 Page 3 of 8
                                     Discussion and Decision
[4]   Powell requests that we reduce her sentence pursuant to Indiana Appellate Rule

      7(B), which provides that we “may revise a sentence authorized by statute if,

      after due consideration of the trial court’s decision, [we] find that the sentence is

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

      offender.” “Sentence review under Appellate Rule 7(B) is very deferential to

      the trial court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “Such

      deference should prevail unless overcome by compelling evidence portraying in

      a positive light the nature of the offense (such as accompanied by restraint,

      regard, and lack of brutality) and the defendant’s character (such as substantial

      virtuous traits or persistent examples of good character).” Stephenson v. State, 29

      N.E.3d 111, 122 (Ind. 2015). The principal role of appellate review is to

      attempt to “leaven the outliers[.]” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

      2008). “We do not look to determine if the sentence was appropriate; instead

      we look to make sure the sentence was not inappropriate.” Conley, 972 N.E.2d

      at 876.


[5]   Regarding the nature of the offense, “the advisory sentence is the starting point

      the Legislature has selected as an appropriate sentence for the crime

      committed.” Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on

      reh’g, 875 N.E.2d 218. The sentencing range for a level 3 felony is between three

      and sixteen years, with an advisory sentence of nine years. Ind. Code § 35-50-2-

      5(b). As stated above, the trial court imposed a sentence of nine years. “[T]he

      defendant bears a particularly heavy burden in persuading us that [her] sentence

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-809 | September 30, 2019   Page 4 of 8
      is inappropriate when the trial court imposes the advisory sentence.” Fernbach

      v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans denied.


[6]   When reviewing the nature of the offense, this Court considers the “details and

      circumstances surrounding the offense and the defendant’s participation

      therein.” Morris v. State, 114 N.E.3d 531, 539 (Ind. Ct. App. 2018), trans. denied

      (2019). Powell first contends that the nature of the offense did not warrant the

      sentence she received because her involvement in the crime was “limited to

      assisting a local dealer in arranging a transaction with a drug distributor.”

      Appellant’s Br. at 10. Powell downplays the seriousness of her involvement in

      the offense. Here, Powell knew that her distributor in Kentucky dealt in large

      quantities of methamphetamine. Powell not only facilitated the drug

      transaction but also participated in the purchase of the half an ounce of

      methamphetamine. She also had knowledge that Taylor immediately sold a

      quarter of an ounce of methamphetamine in Indiana. Powell was at a house

      where Taylor was staying when police officers executed a search warrant and

      found 9.2 grams of methamphetamine, narcotics, digital scales and baggies

      used to package and sell methamphetamine, drug paraphernalia, and crystalline

      pieces that tested positive for methamphetamine. After Powell was arrested, a

      search of her purse revealed digital scales and baggies containing crystalline

      substances, which indicates an active role in the deadly methamphetamine

      trade.


[7]   Powell also claims that her offense “did not involve any harm or intent to cause

      harm to any other person.” Id. We disagree. As the trial court pointed out

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-809 | September 30, 2019   Page 5 of 8
      during sentencing, “you’ve been on the bad guy side in this struggle that we

      have in our society in trying to get rid of [drugs]” and “by helping in the

      distribution of [drugs] you’ve hurt other folks.” Tr. Vol. 2 at 61. Clearly, the

      nature of the offense does not support a reduction of Powell’s sentence.


[8]   With respect to Powell’s character, we note that “[t]he character of the offender

      is found in what we learn of the offender’s life and conduct.” Perry v. State, 78

      N.E.3d 1, 13 (Ind. Ct. App. 2017). “The significance of a criminal history in

      assessing a defendant’s character and an appropriate sentence varies based on

      the gravity, nature, and number of prior offenses in relation to the current

      offense.” Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007).

      Powell’s criminal history includes convictions for illegal consumption of

      alcohol, two convictions for operating a vehicle without a license, operating a

      vehicle while intoxicated endangering a person, operating a vehicle with an

      ACE of .15 or more, and possession of marijuana, cocaine, and narcotic drugs.

      She also had her probation revoked for nonreporting. Appellant’s App. Vol. 2

      at 58-59.


[9]   Powell contends that she took responsibility and pled guilty to the “top count

      she was charged with.” Appellant’s Br. at 10. While Powell did plead guilty,

      she received a significant benefit in doing so. Powell faced almost forty years in

      prison. As a result of the plea agreement, the State dismissed two felony and

      two misdemeanor charges. While we commend Powell for twelve years of

      sobriety, unfortunately, she went back to using and distributing illegal drugs

      and continues to surround herself with others who do the same. In fact,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-809 | September 30, 2019   Page 6 of 8
       between Powell’s guilty plea and sentencing hearings, her live-in boyfriend,

       who has an extensive criminal record, was arrested in their home for dealing

       marijuana and possessing hypodermic needles that tested positive for

       methamphetamine. Appellant’s Br. at 12; Tr. Vol. 2 at 53. This belies Powell’s

       purported desire to “avoid people associated with illegal drug activity.” Id.


[10]   Powell also emphasizes that she offered to assist law enforcement in controlled

       buys from known drug dealers. Powell signed an addendum to her plea

       agreement which allowed her to be released from jail in exchange for her

       assistance. However, according to Indiana State Police Detective Mark

       Jenkins, communication on setting up drug buys was difficult with Powell, and

       sometimes days would go by before she would respond to him. Tr. Vol. 2 at 44,

       51. Detective Jenkins indicated that after five months, Powell failed to assist

       them with completing drug buys. Powell argues that she “made efforts to set up

       buys but they did not coincide with law enforcement’s timelines.” Appellant’s

       Br. at 12. Powell admitted that she “could have tried hard[er]” but that she

       “would get frustrated … had no life … and couldn’t do anything because law

       enforcement wanted her to talk to a dealer every single day.” Tr. Vol. 2 at 25,

       34. Powell had an opportunity to work with law enforcement to eliminate or

       reduce drug dealing in the community. We agree with the State that she made

       the agreement with law enforcement in order to get out of jail and not to help

       with the pervasive drug problem affecting the community. Powell’s behavior

       does not reflect positively on her character.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-809 | September 30, 2019   Page 7 of 8
[11]   In sum, Powell has not persuaded us that her sentence is inappropriate in light

       of the nature of the offense or her character. Accordingly, we affirm.


[12]   Affirmed.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-809 | September 30, 2019   Page 8 of 8
