MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                      Jun 02 2015, 9:39 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Gregory L. Fumarolo                                       Gregory F. Zoeller
Fort Wayne, Indiana                                       Attorney General of Indiana
                                                          Richard C. Webster
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Ashley J. Todd,                                           June 2, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          02A04-1412-CR-588
        v.                                                Appeal from the Allen Superior
                                                          Court.
State of Indiana,                                         The Honorable Frances C. Gull,
                                                          Judge.
Appellee-Plaintiff.
                                                          Cause Nos. 02D05-1405-FD-484 &
                                                          02D05-1405-FD-571




Riley, Judge




Court of Appeals of Indiana | Memorandum Decision | 02A04-1412-CR-588 | June 2, 2015       Page 1 of 9
                                   STATEMENT OF THE CASE

[1]   In this consolidated appeal, Appellant-Defendant, Ashley J. Todd (Todd),

      appeals her sentence following her conviction for possession of

      methamphetamine, a Class D felony, Ind. Code § 35-48-4-6.1(a) (2013);

      maintaining a common nuisance, a Class D felony, I.C. § 35-48-4-13(b) (2013);

      possession of chemical reagents or precursors with the intent to manufacture, a

      Class D felony, I.C. § 35-48-4-14.5(e) (2013); and possession of paraphernalia, a

      Class A misdemeanor, I.C. § 35-48-4-8.3(a)-(b) (2013) (collectively, Cause

      Number 484), as well as her conviction for theft, a Class D felony, I.C. § 35-43-

      4-2(a) (2013) (Cause Number 571).


[2]   We affirm.


                                                     ISSUE

[3]   Todd raises one issue on appeal, which we restate as follows: Whether Todd’s

      sentence is inappropriate in light of the nature of the offense and her character.


                           FACTS AND PROCEDURAL HISTORY

[4]   On April 25, 2014, the Fort Wayne Police Department executed a search

      warrant at Todd’s home in Fort Wayne, Allen County, Indiana. Therein,

      police officers discovered numerous ingredients used in the manufacture of

      methamphetamine, as well as more than 0.5 grams of methamphetamine. An

      aluminum foil “boat,” commonly used for ingesting methamphetamine, and a

      wooden smoking pipe—both of which contained burnt residue—were also

      recovered. (Appellant’s App. p. 20).

      Court of Appeals of Indiana | Memorandum Decision | 02A04-1412-CR-588 | June 2, 2015   Page 2 of 9
[5]   On May 1, 2014, the State filed an Information under Cause Number 484,

      charging Todd with Count I, possession of methamphetamine as a Class D

      felony; Count II, maintaining a common nuisance as a Class D felony; Count

      III, possession of chemical reagents or precursors with intent to manufacture as

      a Class D felony; and Count IV, possession of paraphernalia as a Class A

      misdemeanor. On May 5, 2014, Todd posted bond and was released from jail.

      Just eleven days later, Todd was shopping at a Sears store and was observed

      stealing a package of chainsaw blades, valued at $44.99. Todd was

      apprehended immediately after exiting the store, so Sears was able to recover its

      merchandise. On May 19, 2014, Todd’s bond in Cause Number 484 was

      revoked, and on May 22, 2014, the State filed an Information under Cause

      Number 571, charging her with theft as a Class D felony.


[6]   On June 2, 2014, pursuant to a plea agreement, Todd pled guilty to all charges

      under both Cause Numbers 484 and 571. In accordance with the plea

      agreement, the trial court took Todd’s guilty plea under advisement and placed

      Todd in the Drug Court Diversion Program (Diversion Program). Todd signed

      a Drug Court Participation Agreement, which provided that upon successful

      completion of the Diversion Program, both causes would be dismissed. It was

      further explained to Todd that if she failed to comply with the conditions of the

      Diversion Program, her participation would be revoked, and the trial court

      would enter a judgment of conviction on all charges and sentence Todd

      accordingly.




      Court of Appeals of Indiana | Memorandum Decision | 02A04-1412-CR-588 | June 2, 2015   Page 3 of 9
[7]   As part of the Diversion Program, Todd was required to adhere to a plethora of

      conditions, including, in part, transitional living, submitting to urine screens,

      and maintaining good behavior. Within the first month of beginning the

      Diversion Program, Todd struggled to follow the rules of the Redemption

      House—her transitional living assignment. She admitted to smoking marijuana

      and was sanctioned by her transitional home. On June 26, 2014, July 2, 2014,

      and July 21, 2014, Todd’s drug screens were diluted. Due to her violations, the

      Redemption House discharged Todd on July 11, 2014, but she was thereafter

      accepted into another transitional facility—the Rose Home. On July 21, 2014,

      the trial court ordered Todd’s remand to the Allen County Jail until August 1,

      2014, as a penalty for violating the Diversion Program’s rules. On October 9,

      2014, Todd was unsuccessfully discharged from the Rose Home after she

      purchased energy pills in violation of the Rose Home’s rules. On October 14,

      2014, the Diversion Program filed a verified petition to terminate Todd’s

      participation.


[8]   On November 14, 2014, the trial court conducted a sentencing hearing and

      entered a judgment of conviction on all charges in accordance with the plea

      agreement. In Cause Number 484, the trial court imposed a sentence of two

      years on each of the three Class D felonies, and a one-year sentence on the

      Class A misdemeanor, all to be served concurrently. In Cause Number 571, the

      trial court sentenced Todd to serve two years for the Class D felony. The trial

      court further ordered the sentences in Cause Number 484 and Cause Number




      Court of Appeals of Indiana | Memorandum Decision | 02A04-1412-CR-588 | June 2, 2015   Page 4 of 9
       571 to be served consecutively, for an aggregate sentence of four years, fully

       executed in the Indiana Department of Correction.


[9]    On December 15, 2014, Todd filed a motion to consolidate the appeals for

       Cause Number 484 and Cause Number 571, which this court granted on

       January 12, 2015. Todd now appeals. Additional facts will be provided as

       necessary.


                                     DISCUSSION AND DECISION

[10]   Todd claims that her sentence is inappropriate.1 We first note that the trial

       court’s order of two-year sentences for each Class D felony and a one-year term

       for the Class A misdemeanor falls squarely within the statutory sentencing

       parameters. See I.C. § 35-50-2-7(a) (2013) (providing that a Class D felony is

       punishable by “a fixed term of between six (6) months and three (3) years, with

       the advisory sentence being one and one-half (1 ½) years”); I.C. § 35-50-3-2

       (providing that the commission of a Class A misdemeanor warrants a fixed

       term of imprisonment “of not more than one (1) year”). Because Todd was

       released on bond in Cause Number 484 at the time she committed the theft in

       Cause Number 571, the trial court was required to run the sentences




       1
         Pursuant to Indiana Administrative Rule 9(G)(2)(b) and Indiana Code section 35-38-1-13, the presentence
       investigation (PSI) report must be excluded from public access. However, in this case, the information
       contained in the PSI report “is essential to the resolution” of Todd’s claim of an inappropriate sentence. Ind.
       Admin. Rule 9(G)(7)(a)(ii)(c). Accordingly, we have included confidential information in this decision only
       to the extent necessary to resolve the appeal.

       Court of Appeals of Indiana | Memorandum Decision | 02A04-1412-CR-588 | June 2, 2015                Page 5 of 9
       consecutively, resulting in an aggregate term of four years. See I.C. § 35-50-1-

       2(d)(2)(B) (2013).


[11]   Notwithstanding the fact that the trial court imposed a statutorily authorized

       sentence, our court may revise the sentence if 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). It is well established that “Indiana

       Appellate Rule 7(B) leaves much to the discretion of appellate courts, but it

       does not detract from the long-recognized principle that ‘sentencing is

       principally a discretionary function in which the trial court’s judgment should

       receive considerable deference.’” Parks v. State, 22 N.E.3d 552, 555 (Ind. 2014)

       (quoting Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008)). On review, our

       determination of the appropriateness of a sentence “turns on our sense of the

       culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other factors that come to light in a given case.” Cardwell,

       895 N.E.2d at 1224. We focus on the length of the aggregate sentence and how

       it is to be served. Id. Our analysis is not intended “to determine whether

       another sentence is more appropriate but rather whether the sentence imposed

       is inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal

       quotation marks omitted), reh’g denied. Ultimately, our goal is “to attempt to

       leaven the outliers[] and identify some guiding principles for trial courts and

       those charged with improvement of the sentencing statutes, . . . not to achieve a

       perceived ‘correct’ result in each case.” Cardwell, 895 N.E.2d at 1224.




       Court of Appeals of Indiana | Memorandum Decision | 02A04-1412-CR-588 | June 2, 2015   Page 6 of 9
[12]   Todd bears the burden of persuading our court that her sentence is

       inappropriate. See Conley, 972 N.E.2d at 876. As such, she posits that her

       crimes were non-violent Class D felonies, and “her prior convictions are no

       doubt the product of an ongoing problem with drug addiction.” (Appellant’s

       Br. p. 17). Furthermore, she asserts that she wrote a letter to the trial court “in

       which she accepts responsibility for her crimes, thanked the judge for the

       opportunity to go through the [Diversion Program], and how that program

       benefitted her even though she did not successfully complete it. More

       importantly, the letter contained no excuses or requests for leniency.”

       (Appellant’s Br. p. 17). Reserving her leniency requests for appeal, Todd now

       seeks an aggregate sentence of three years, with one year executed (preferably in

       work release or home detention) and two years suspended to probation.


[13]   Looking first to the nature of the offense, we find that Todd pled guilty to being

       in possession of both methamphetamine and several ingredients required for the

       manufacture of methamphetamine, which she admittedly intended to do in her

       home. Then, less than two weeks after being released on bond and while

       awaiting acceptance into the Diversion Program, Todd stole approximately

       $45.00 worth of chainsaw blades from a Sears store. As part of her plea

       agreement, Todd was required to complete the Diversion Program in exchange

       for having all of her charges dismissed. However, Todd repeatedly violated the

       rules of both her transitional homes and was ultimately discharged from the

       Diversion Program.




       Court of Appeals of Indiana | Memorandum Decision | 02A04-1412-CR-588 | June 2, 2015   Page 7 of 9
[14]   As to the character of the offender, we find that, in addition to the instant Class

       D felony theft conviction, Todd has two prior felony convictions and one

       misdemeanor conviction for theft. Todd’s criminal history also includes two

       misdemeanor convictions for assault and leaving the scene of an accident. In

       both of her prior felony theft cases, Todd received suspended sentences, which

       were ultimately revoked. Contrary to Todd’s assertion, it is not clear from the

       record that her prior crimes—none of which are drug-related—were the product

       of her ongoing addiction with drugs. Nevertheless, Todd’s longstanding

       substance abuse problem is apparent. She reportedly began using marijuana at

       age sixteen and methamphetamine at age seventeen. Until age twenty, Todd

       was using methamphetamine daily, but she quit using for a period of seven

       years. Then, at age twenty-seven, Todd resumed her methamphetamine habit

       and was using it two or three times per week up until her arrest in the instant

       case. Todd has also experimented with cocaine, ecstasy, and mushrooms, and

       she used Vicodin on a daily basis for over six years.


[15]   In addition, we consider the fact that Todd is the mother of a nine-year-old son.

       She has her GED, and she is licensed by the State of Indiana as an esthetician.

       Todd expressed her gratitude to the court for the opportunity to participate in

       the Diversion Program and stated that she is “regretful and ha[s] a broken heart

       that [she] wasn’t able to complete [the Diversion Program].” (Sentencing Tr. p.

       13). Todd indicated that she wanted to achieve sobriety and better herself for

       her family, but when given the opportunity for rehabilitation, she admittedly

       lied to and manipulated the staff-members at her transitional homes. As the


       Court of Appeals of Indiana | Memorandum Decision | 02A04-1412-CR-588 | June 2, 2015   Page 8 of 9
       trial court noted, Todd had previously “been given the benefit of jail, probation,

       community service, Department of Correction treatment, drug court treatment

       and transitional living and nothing has curtailed [her] behavior.” (Sentencing

       Tr. p. 15). As leniency and the needs of her family have been insufficient

       incentives for Todd to make lasting changes in her life prior to this point, it now

       appears that an executed sentence is necessary to hold her accountable.

       Therefore, we cannot say that Todd’s four-year sentence is inappropriate.


                                               CONCLUSION

[16]   Based on the foregoing, we conclude that Todd’s aggregate four-year sentence

       is appropriate in light of the nature of the offense and her character.


[17]   Affirmed.


[18]   Bailey, J. and Barnes, J. concur




       Court of Appeals of Indiana | Memorandum Decision | 02A04-1412-CR-588 | June 2, 2015   Page 9 of 9
