MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                      Oct 28 2019, 6:35 am

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
Scott H. Duerring                                        Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Erica S. Mays,                                           October 28, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1157
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         71D03-1704-F6-370
                                                         71D03-1708-F6-750
                                                         71D03-1710-F6-988



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1157 | October 28, 2019                   Page 1 of 8
                                        Statement of the Case
[1]   Erica S. Mays appeals her aggregate sentence of seven and one-half years

      following her convictions, across three cause numbers, for two counts of Level

      6 felony theft; possession of cocaine, as a Level 6 felony; criminal trespass, as a

      Class A misdemeanor; false informing, as a Class B misdemeanor; and two

      counts of Class C misdemeanor possession of paraphernalia. Mays raises a

      single issue for our review, namely, whether her sentence is inappropriate in

      light of the nature of the offenses and her character. We affirm.


                                  Facts and Procedural History 1
[2]   On April 23, 2017, the manager of the Sam’s Club in Mishawaka, Lindsey

      Harris, observed Mays leave the store with two 1.5-liter bottles of liquor

      without having paid for them. Harris reported the theft to local police officers

      and gave them surveillance video of the theft. Officers later located Mays with

      the two liquor bottles at a nearby gas station, and they arrested her. Mays gave

      the officers several false names while they were attempting to talk to her.

      Thereafter, in cause number 71D03-1704-F6-370 (“Cause No. F6-370”), the

      State charged Mays in relevant part with theft, as a Level 6 felony, and false

      informing, as a Class B misdemeanor.




      1
        We remind Mays’ counsel that Indiana Appellate Rule 50(B)(1)(a) requires the inclusion of each appealed
      cause number’s full chronological case summary in the Appellant’s Appendix.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1157 | October 28, 2019               Page 2 of 8
[3]   While the State’s charges against Mays in Cause No. F6-370 were pending, on

      August 17, South Bend Police Department officers received a report that Mays,

      who was wanted on outstanding warrants, was near a local Target department

      store. Officers located Mays at a gas station near that store, and, while placing

      her under arrest, they discovered a glass pipe and a baggie of cocaine on her

      person. Under cause umber 71D01-1708-F6-750 (“Cause No. F6-750”), the

      State charged Mays with possession of cocaine, as a Level 6 felony, and

      possession of paraphernalia, as a Class C misdemeanor.


[4]   In October, Catherine Wilder, a loss prevention officer at a Meijer store in

      South Bend, observed Mays enter the store despite no longer being allowed

      there. Wilder called the police to report that Mays was trespassing. While

      Wilder was escorting the responding police officer to Mays’ location in the

      store, Wilder observed Mays “quickly dart[]” among some merchandise,

      “duck[] down,” and “remov[e] items from her purse.” Tr. Vol. 3 at 78. Wilder

      recognized the removed items as unpurchased Meijer’s merchandise. And, in

      arresting Mays, the arresting officer discovered a glass pipe in her purse. Under

      cause number 71D02-1710-F6-988 (“Cause No. F6-988”), the State charged

      Mays in relevant part with theft, as a Level 6 felony; criminal trespass, as a

      Class A misdemeanor; and possession of paraphernalia, as a Class C

      misdemeanor.


[5]   Following guilty verdicts in each cause number, the trial court entered

      judgments of conviction against Mays for the above-stated offenses. In May of

      2019, the court held a consolidated sentencing hearing. After hearing the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1157 | October 28, 2019   Page 3 of 8
      parties’ arguments and evidence at that hearing, the court recited Mays’

      criminal history as follows:


              [L]ooking at your [criminal] history, ma’am, we go back to 1990.
              You had a Prostitution [conviction]. You had a Burglary in ’91
              where a [petition to revoke probation, or “PTR”] was filed. In
              ’96 you had a Prostitution [conviction]. In ’97 you had
              Possession of Paraphernalia twice. Then you had Possession of
              Cocaine, and there was a PTR filed in that which was dismissed.
              Criminal Trespass. In ’98, you had a Prostitution, Resisting. In
              ’99 you had a False Informing, Resisting, Prostitution, and a
              Habitual Offender. A PTR was filed twice. In 2000 you had a
              Possession that was a misdemeanor. In 2001 you had a
              Resisting. In 2003 you had . . . some sort of traffic offense . . . .
              Prostitution as a D felony where a PTR was filed. Criminal
              Conversion, 2004. Possession of Cocaine, 2006. 2007 you had a
              Criminal Conversion where a PTR was filed but withdrawn
              pursuant to a plea. Driving Never Having a License, Possession
              of Cocaine. That was in 2007. In 2009 you had Criminal
              Conversion, Theft. There was a parole violation. 2011 you had
              a Theft as a Class A misdemeanor. It appears you may have a
              Theft from 2013 that’s pending. A Conversion, another
              Conversion, a Battery, Possession of Paraphernalia all in 2013.
              2014, you had [T]heft, and you had a parole violation. In 2015
              you had Possession of Paraphernalia, Driving While Suspended.
              And in 2017 you had . . . all these cases . . . . And then you had
              [an] Elkhart case which I guess you’ve already done. So you
              have a long, long record, ma’am.


      Tr. Vol. 3 at 145-46.


[6]   “[B]ased on that” criminal history, the trial court ordered Mays to serve an

      aggregate term of seven and one-half years across the three cause numbers. Id.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1157 | October 28, 2019   Page 4 of 8
      at 146. However, in its written sentencing order, the court further stated as

      follows:


              [Mays] has a history of substance abuse and chemical addiction
              and dependency, and [she] appears to be an appropriate
              candidate for the [Department of Correction’s] Recovery While
              Incarcerated. Court recommends that [Mays] be evaluated for
              and considered for Recovery While Incarcerated. Upon
              successful completion of the clinically appropriate substance
              abuse treatment program as determined by [the Department of
              Correction], the Court will consider a modification to this
              sentence. Court will not consider a modification of th[is]
              sentence[] until [Mays] has completed two years incarceration.


      Appellant’s App. Vol. 2 at 198. This appeal ensued.


                                     Discussion and Decision
[7]   Mays asserts that her aggregate sentence of seven and one-half years is

      inappropriate under Indiana Appellate Rule 7(B). Indiana Appellate Rule 7(B)

      provides that “[t]he 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.” This Court has often recognized that “[t]he advisory sentence is the

      starting point the legislature has selected as an appropriate sentence for the

      crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017).

      And the Indiana Supreme Court has explained that “[t]he principal role of

      appellate review should be to attempt to leaven the outliers . . . but not achieve

      a perceived ‘correct’ result in each case. Defendant has the burden to persuade


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1157 | October 28, 2019   Page 5 of 8
      us that the sentence imposed by the trial court is inappropriate.” Shoun v. State,

      67 N.E.3d 635, 642 (Ind. 2017) (citations omitted; omission in original).


[8]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

      sentence to the circumstances presented, and the trial court’s judgment “should

      receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

      2008). Whether we regard a sentence as inappropriate at the end of the day

      turns on “our sense of the culpability of the defendant, the severity of the crime,

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

      case.” Id. at 1224. The question is not whether another sentence is more

      appropriate, but rather whether the sentence imposed is inappropriate. King v.

      State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Deference to the trial court

      “prevail[s] 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).


[9]   Mays asserts that her sentence is inappropriate in light of the nature of the

      offenses because the crimes underlying each of the three cause numbers

      “occurred over a . . . seven-month time frame,” which, according to Mays, was

      for “all intents and purposes . . . a crime spree with a series of crimes being

      committed prior to the criminal justice system’s ability to address the behavior

      of [the] individual.” Appellant’s Br. at 10. She further asserts that “the actual



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1157 | October 28, 2019   Page 6 of 8
       harm done . . . was minimal” because “no one was injured” and “all of the

       property involved in the thefts was returned . . . .” Id.


[10]   But we cannot say that Mays’ sentence is inappropriate in light of the nature of

       the offenses. In Cause No. F6-270, Mays lied to investigating police officers

       about her identity. In Cause No. F6-750, she was apprehended on outstanding

       warrants and found to be in possession of cocaine and a glass pipe. In Cause

       No. F6-988, she attempted to steal merchandise from a store that had

       previously prohibited her from being there, and when she was apprehended

       there she again was in possession of a glass pipe. And while we disagree with

       Mays’ characterization of the numerous offenses underlying the three cause

       numbers as a single “crime spree,” it is relevant, and not favorable to Mays,

       that she committed the crimes underlying Cause No. F6-750 while the charges

       against her in Cause No. F6-270 were pending, and that she committed the

       crimes underlying Cause No. F6-988 while each of the other two cause

       numbers were pending. We cannot say that Mays’ sentence is inappropriate in

       light of the nature of the offenses.


[11]   Mays also asserts that her aggregate sentence is inappropriate in light of her

       character because “she suffered from an ongoing substance abuse illness.” Id.

       Although not referenced by Mays in her argument on appeal, we note that, in a

       recent per curiam opinion, the Indiana Supreme Court considered a term of

       incarceration for a defendant who had had “multiple drug-related contacts with

       the criminal justice system over many years” but had “yet to receive court-

       ordered substance abuse treatment.” Hoak v. State, 113 N.E.3d. 1209, 1209

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1157 | October 28, 2019   Page 7 of 8
       (Ind. 2019) (per curiam) (quotation marks omitted). Our Supreme Court

       remanded for the trial court “to determine whether [the defendant] is eligible for

       substance abuse treatment in a Community Corrections placement; and[,] if she

       is eligible, to order half of her sentence to be executed in Community

       Corrections.” Id. at 1209-10.


[12]   But Hoak is not applicable here, where the trial court expressly ordered Mays to

       be evaluated for a clinically appropriate substance abuse treatment program for

       her to complete, or attempt to complete, during her incarceration with the

       Department of Correction. The court even stated that Mays would have the

       opportunity to seek a sentence modification after just two years of incarceration

       if she successfully completes such a program. Thus, the trial court has taken

       Mays’ substance abuse issues into account, and we cannot say that Mays’

       sentence is inappropriate given the trial court’s consideration of her substance

       abuse. Neither is it inappropriate in light of her character more generally:

       Mays’ “long, long [criminal] record,” including her repeated failures to abide by

       the terms and conditions of numerous prior placements on probation and

       parole, speaks poorly of her character. Tr. Vol. 3 at 146.


[13]   Accordingly, we cannot say that Mays’ sentence is inappropriate in light of the

       nature of the offenses and her character, and we affirm her sentence.


[14]   Affirmed.


       Bailey, J., and May, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1157 | October 28, 2019   Page 8 of 8
