      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                     FILED
      regarded as precedent or cited before any                             Jun 05 2017, 9:13 am
      court except for the purpose of establishing
                                                                                CLERK
      the defense of res judicata, collateral                               Indiana Supreme Court
                                                                               Court of Appeals
      estoppel, or the law of the case.                                          and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Thomas C. Allen                                          Curtis T. Hill, Jr.
      Fort Wayne, Indiana                                      Attorney General of Indiana
                                                               Ellen H. Meilaender
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Anna M. Mincoff,                                         June 5, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               02A05-1701-CR-43
              v.                                               Appeal from the Allen Superior
                                                               Court
      State of Indiana,                                        The Honorable Frances C. Gull,
      Appellee-Plaintiff                                       Judge
                                                               Trial Court Cause No.
                                                               02D04-1607-F6-781



      Mathias, Judge.


[1]   Anna M. Mincoff (“Mincoff”) pleaded guilty without a plea agreement in Allen

      Superior Court to two Level 6 drug felonies and one Class A drug


      Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-43 | June 5, 2017             Page 1 of 6
      misdemeanor. Mincoff was sentenced to a term of one and one-half years

      executed in the Department of Correction. She now appeals that sentence as

      inappropriate.


[2]   We affirm.


                                 Facts and Procedural Posture

[3]   Mincoff is a German immigrant with six dependent children, a mild criminal

      history, and a long-standing dependence on illegal drugs. On July 7, 2016, in

      Fort Wayne, Indiana, Mincoff was found unconscious in a bathroom

      surrounded by a packet of solid heroin, a syringe of liquid heroin, and a packet

      of “spice,” synthetic marijuana. Mincoff was arrested. On July 13, 2016, the

      State charged Mincoff by information filed in Allen Superior Court with Level

      6 felony possession of heroin, Level 6 felony possession of a syringe, and Class

      A misdemeanor possession of a synthetic drug.

[4]   On August 29, 2016, Mincoff pleaded guilty without benefit of a plea

      agreement to all three charges. However, Mincoff and the State had agreed that

      she should be allowed to participate in Allen County’s “drug court” program, a

      deferred-adjudication program for drug abusers. See Ind. Code § 33-23-16-5

      (defining “drug court”); Meadows v. State, 2 N.E.3d 788, 791–92 (Ind. Ct. App.

      2014) (explaining operation). Mincoff was required to participate in transitional

      living, outpatient treatment and therapy, and other services; to appear in court

      when ordered; and to refrain from drug use and other criminal behavior. On



      Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-43 | June 5, 2017   Page 2 of 6
      successful completion of the program, the charges against her would be

      dismissed.

[5]   Mincoff did not complete the program successfully. On September 16, 2016,

      she absconded from or was kicked out of her transitional-living placement. She

      was arrested and released to a different placement. On October 7, 2016, she

      absconded from or was kicked out of the second placement. She failed to

      appear for a case management appointment on the same day and for a court

      hearing on October 11, 2016. On November 3, 2016, she was arrested on a

      bench warrant and charged with resisting law enforcement as a result. The State

      petitioned to terminate Mincoff’s drug court participation on November 14,

      2016. The court granted the petition the same day after Mincoff admitted

      violating the terms of her participation agreement in open court.


[6]   On December 13, 2016, Mincoff appeared for sentencing. In mitigation, the

      court weighed Mincoff’s guilty plea, her acceptance of responsibility, and the

      genuine remorse she showed for her failure to take advantage of the

      opportunities given to her. In aggravation, the court weighed Mincoff’s criminal

      history, including four misdemeanor convictions as an adult and one juvenile

      delinquency adjudication, and her history of failed rehabilitation efforts,

      including two probation revocations and the instant revocation of drug court

      participation. The court sentenced Mincoff to concurrent sentences of one and

      one-half years on the two Level 6 felonies, six months above the one-year

      advisory sentence, I.C. § 35-50-2-7(b), and of one year on the Class A



      Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-43 | June 5, 2017   Page 3 of 6
      misdemeanor, the statutory maximum, id. § 3-2, all fully executed in the

      Department of Correction.

[7]   Mincoff now appeals, claiming her sentence is inappropriate. Mincoff argues an

      executed sentence is inappropriate because she is not “a danger to society,”

      Appellant’s Br. at 19, and because now, for the first time in her life, she

      earnestly desires to rehabilitate herself. She asks us to suspend her executed

      sentence and to order further drug treatment. The State responds that Mincoff’s

      recidivism “demonstrates a lack of character and disregard for the rule of

      law[.]” Appellee’s Br. at 10.


                                     Discussion and Decision

[8]   We have the authority, granted by our constitution and implemented by the

      Appellate Rules, to review and revise a lawfully imposed sentence “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.” Ind. Appellate Rule 7(B) (implementing Ind. Const. Art. 7, § 6). The

      primary purpose of such review is to “leaven the outliers,” that is, to promote

      consistency and uniformity in sentencing by restraining extraordinarily harsh or

      lenient sentences. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We

      examine the full range of penal consequences, id., including placement,

      Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007), in light of the offender’s

      culpability, the severity of the crime, the harm done to others, and any other

      relevant facts of the individual case. Cardwell, 895 N.E.2d at 1224.


      Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-43 | June 5, 2017   Page 4 of 6
[9]    Mincoff bears the heavy burden of persuading us she has been inappropriately

       sentenced. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Due

       consideration of the trial court’s decision demands “considerable deference” on

       our part, Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015), to the trial court’s

       “special expertise” in the fact-intensive sentencing process. Scott v. State, 840

       N.E.2d 376, 381 (Ind. Ct. App. 2006), trans. denied. Such deference prevails

       “unless overcome by compelling evidence portraying [the offense and the

       offender] in a positive light.” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[10]   Mincoff has not carried her burden here. Neither Mincoff nor the State devote

       much attention to the nature of her offenses; Mincoff notes only that her

       commission of them happened in the “typical” way. Appellant’s Br. at 16. The

       trial court must have agreed, to the extent it imposed a fairly “typical” sentence.


[11]   As to Mincoff’s character, her arguments largely amount to a request that we

       reweigh the aggravators and mitigators found by the trial court in an effort to

       fashion a more appropriate sentence. This we will not do. The question “is not

       whether another sentence is more appropriate, [but] whether the sentence

       imposed is inappropriate.” King, 894 N.E.2d at 268 (original emphasis). The

       trial court concluded that two probation revocations and one drug-court

       participation revocation sufficiently demonstrated the futility of suspending

       Mincoff’s sentence in this case, and Mincoff has not presented compelling

       evidence to the contrary.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-43 | June 5, 2017   Page 5 of 6
[12]   Mincoff’s better arguments are that she is not, and has never shown herself to

       be, a dangerous or violent person; and that, upon her unsupervised release from

       incarceration, she will be without resources to seek treatment and further

       rehabilitation. We might find the first argument persuasive if there were a

       presumption against incarceration for nonviolent offenders, but there is not.

       The second argument reflects an inevitable consequence of our public health

       policy but is not a basis for revising Mincoff’s sentence. We note that treatment

       or counseling is likely to be available to Mincoff in prison.


                                                 Conclusion

[13]   Mincoff’s executed sentence was not inappropriate in light of the nature of her

       offense or her character. The judgment of the trial court is therefore affirmed.


[14]   Affirmed.


       Kirsch, J., and Altice, J., concur.




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