MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                                         FILED
Memorandum Decision shall not be regarded                                       Aug 31 2020, 9:26 am
as precedent or cited before any court except
                                                                                    CLERK
for the purpose of establishing the defense of                                  Indiana Supreme Court
                                                                                   Court of Appeals
res judicata, collateral estoppel, or the law of                                     and Tax Court

the case.


ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Jennifer A. Joas                                            Curtis T. Hill, Jr.
Madison, Indiana                                            Attorney General of Indiana
                                                            Megan M. Smith
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                              IN THE
        COURT OF APPEALS OF INDIANA

Tosha Richardson,                                           August 31, 2020
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            20A-CR-300
        v.
                                                            Appeal from the Ripley Circuit
State of Indiana,                                           Court
Appellee-Plaintiff.                                         The Honorable Ryan J. King,
                                                            Judge
                                                            Trial Court Cause No.
                                                            69C01-1810-F3-4



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-300| August 31, 2020                           Page 1 of 8
                                   STATEMENT OF THE CASE
[1]   Appellant-Defendant, Tosha Richardson (Richardson), appeals the trial court’s

      sentence following her guilty plea to dealing in methamphetamine, a Level 4 felony,

      Ind. Code § 35-48-4-1.1(c)(1).


[2]   We affirm.


                                                       ISSUE
[3]   Richardson presents one issue on appeal, which we restate as: Whether

      Richardson’s sentence is inappropriate in light of the nature of the offense and her

      character.


                         FACTS AND PROCEDURAL HISTORY
[4]   On October 5, 2019, the police went to Richardson’s apartment in Sunman, Indiana,

      where she lived with her long-term boyfriend and her eighteen-year-old daughter to

      conduct a “knock and talk” upon learning information that Richardson was dealing

      methamphetamine. (Appellant’s App. Vol. II, p. 22). Richardson gave her consent

      to a search, and an officer gave Richardson her Miranda advisements. In the kitchen,

      police found two plastic bags with marijuana and seven pills of Flexeril. In

      Richardson’s bedroom, the police found three pills containing Alprazolam, one pill

      of Clonazepam, four pills of Naproxen, a small wrapper with marijuana, and

      approximately three grams of methamphetamine. Police also found a pipe used for

      smoking methamphetamine, plastic baggies with the corners cut off, a cut straw, and

      a digital scale. Richardson stated that she was the “go-between” for

      methamphetamine between a drug dealer in Cincinnati, Ohio, and Ripley County,

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-300| August 31, 2020   Page 2 of 8
      Indiana. (Appellant’s App. Vol. II, p. 24). Richardson also told the police that she

      shared methamphetamine with three of her friends and that she recently bought “six

      grams of methamphetamine” and “at least one hundred and fifty dollars ($150.00)

      worth of methamphetamine[.]” (Transcript p. 77). Richardson admitted that she

      had shared methamphetamine with her friends on four or five occasions.

      Richardson’s daughter pulled an investigator aside and told him that she suspected

      that Richardson was using drugs because she had sores on her legs, rotting teeth, and

      that there were people coming and going from their home throughout the middle of

      the night.


[5]   On October 10, 2019, the State filed an Information, charging Richardson with

      dealing in methamphetamine, a Level 3 felony, possession of methamphetamine, a

      Level 5 felony, maintaining a common nuisance with a controlled substance, a Level

      6 felony, possession of marijuana, a Class B misdemeanor, possession of

      paraphernalia, a Class C misdemeanor, possession of a controlled substance, a Class

      A misdemeanor, and possession of a legend drug, a Level 6 felony. On December 5,

      2019, the trial court granted the State’s motion to add one Count of dealing in

      methamphetamine, a Level 4 felony, and to dismiss the possession of a legend drug

      charge.


[6]   On December 17, 2019, a jury trial was convened for this matter. On the second day

      of her jury trial, Richardson entered into a plea agreement with the State in which

      she pled guilty to dealing in methamphetamine, a Level 4 felony, and all other

      charges were dismissed. The plea agreement did not include any sentencing

      recommendation.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-300| August 31, 2020   Page 3 of 8
[7]   The presentence investigation report showed that Richardson has a criminal history

      of public intoxication, a Class B misdemeanor in 2004, operating a vehicle while

      intoxicated, a Class A misdemeanor in 2004, and operating a vehicle while

      intoxicated as a Level 6 felony in 2010 which was subsequently reduced to a Class A

      misdemeanor. Richardson served probation for these offenses and did so

      successfully without violation. The report also indicated that Richardson had been

      using methamphetamine for approximately two years and, by the time of the offense,

      Richardson smoked roughly half a gram of methamphetamine a day. Richardson

      was unemployed during most of the period she was using methamphetamine.


[8]   On January 9, 2020, the trial court held Richardson’s sentencing hearing.

      Richardson testified that she underwent an alcohol-abuse treatment program on two

      separate occasions after her three alcohol-related offenses. Richardson admitted that

      she consumed alcohol at a bar with friends approximately a year before the hearing.

      Richardson also offered evidence that she had visited a faith-based rehabilitation

      center three times several months prior to her sentencing hearing. During the

      sentencing hearing, Richardson apologized for her conduct and acknowledged how

      detrimental her drug-use has been to her, her family, and her community.

      Richardson acknowledged that her daughter had lost respect for her and that her

      drug use meant that she could not spend time with her daughter. Richardson was

      asked during the hearing who she had shared methamphetamine with and who had

      provided her with methamphetamine, but she refused to provide those names.


[9]   In determining Richardson’s sentence, the court found the following aggravating

      factors : (1) Richardson committed dealing in methamphetamine multiple times by

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-300| August 31, 2020   Page 4 of 8
       distributing the drug between Indiana and Ohio; (2) Richardson committed other

       offenses by possessing multiple other controlled substances during the commission of

       the offense; (3) Richardson has a criminal history; and (4) Richardson’s drug-use has

       gravely impacted her daughter. The trial court found only one mitigating factor:

       Richardson’s successful completion of probation for her previous offenses. The trial

       court found that the four aggravating factors outweighed the one mitigating factor.

       The trial court sentenced Richardson to eleven years, with three years suspended to

       probation.


[10]   Richardson now appeals. Additional facts will be provided if necessary.


                                  DISCUSSION AND DECISION
[11]   Richardson requests that we independently review the appropriateness of her

       sentence. Pursuant to Indiana Rule of Appellate Procedure 7(B), we may revise a

       sentence if we conclude “the [trial court’s] sentence is inappropriate in light of the

       nature of the offense and character of the offender.” Corbin v. State, 840 N.E.2d 424,

       432 (Ind. Ct. App. 2006). In reviewing the appropriateness of a sentence, “we are

       not limited to the mitigators and aggravators found by the trial court” and “may look

       to any factors appearing in the record.” Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014);

       Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 2008), trans. denied. The “defendant

       bears the burden of persuading the appellate court that his or her sentence is

       inappropriate.” Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007).


                                                I. Nature of the Offense




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-300| August 31, 2020   Page 5 of 8
[12]   In evaluating the nature of the offense, “the advisory sentence is the starting point to

       determine the appropriateness of a sentence.” Johnson v. State, 986 N.E.2d 852, 856

       (Ind. Ct. App. 2013). The minimum sentence for dealing in methamphetamine, a

       Level 4 felony, is two years, with a maximum sentence of twelve years and an

       advisory sentence of six years. I.C. § 35-50-2-5.5. Here, the trial court imposed an

       eleven-year sentence, a near maximum for the offense. When the trial court deviates

       from the advisory sentence, we consider “whether there is anything more or less

       egregious about the offense committed by the defendant that makes it different from

       the ‘typical’ offense.” Johnson, 986 N.E.2d at 856. We also look to “the details and

       circumstances of the commission of the offense and the defendant’s participation in

       it.” Washington v. State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied.


[13]   Here, Richardson admitted to dealing four or five times by purchasing

       methamphetamine in Ohio and bringing it back into the Ripley County community.

       As the trial court noted, the scale and baggies, along with the other illegal substances

       found in her bedroom, are strongly indicative that Richardson was dealing more than

       she admitted. These items would not be necessary if Richardson was only sharing

       methamphetamine with a few of her friends. Additionally, Richardson’s daughter

       stated that her mother had sores and rotting teeth and people were coming to and

       from their residence all night. Richardson had told investigators that her last two

       methamphetamine purchases cost $150 and $200. Richardson did not have an

       income at the time of her methamphetamine-use, and it is reasonable to conclude

       that Richardson purchased this methamphetamine with profits from dealing.

       Richardson had over three grams of methamphetamine in her possession, which was


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-300| August 31, 2020   Page 6 of 8
       in excess of the one gram necessary to prove the offense. See I.C. § 35-48-4-1.1(c)(1).

       These circumstances are beyond what the State would have had to prove to get a

       conviction which makes Richardson’s offense more egregious. In short, we find

       nothing about the nature of Richardson’s offense which renders her sentence

       inappropriate.


                                                 II. Character of the Offender


[14]   With respect to the character of the offender, we refer “to the general sentencing

       considerations and the relevant aggravating and mitigating circumstances.” Corbin,

       840 N.E.2d at 432. Here, Richardson had a criminal record consisting of three

       addiction-related offenses. Although these prior offenses were misdemeanors and

       rather remote in time, it is apparent that Richardson graduated from alcohol-abuse,

       to drug-abuse, to dealing drugs. This is a serious escalation and weighs against her

       character. Additionally, while Richardson did complete probation three times

       successfully, her only mitigating factor, she also participated in alcohol-abuse

       counseling twice after her three misdemeanors. Richardson appears not to have been

       rehabilitated from the alcohol counseling because she admitted to drinking with her

       friends at a bar after her completion of the programs. Richardson sought substance

       abuse treatment after the instant offense. However, she only attended the treatment

       program three times shortly before her sentencing hearing. Therefore, we do not see

       Richardson’s actions to rehabilitate as particularly genuine or persuasive.


[15]   In addition, Richardson recognized the impact her drug-use had on her daughter,

       apologized, and acknowledged how horrible drugs are for the community. However,

       she still refused, even when given a second opportunity at sentencing, to help remove
       Court of Appeals of Indiana | Memorandum Decision 20A-CR-300| August 31, 2020   Page 7 of 8
       drugs from the community by identifying who else was involved. Richardson’s

       character and the numerous aggravating factors present in this case do not warrant a

       downward revision of her sentence.


                                                CONCLUSION
[16]   Based on the foregoing, we conclude that Richardson’s sentence is not inappropriate

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


[17]   Affirmed.


       Mathias, J. and Tavitas, J. concur




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-300| August 31, 2020   Page 8 of 8
