      MEMORANDUM DECISION
                                                                                     FILED
      Pursuant to Ind. Appellate Rule 65(D),                                    Apr 12 2018, 6:10 am
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                                      CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
      court except for the purpose of establishing                                    and Tax Court

      the defense of res judicata, collateral
      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
                                                               Chandra K. Hein
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Stacy Demaree,                                           April 12, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               15A04-1710-CR-2335
              v.                                               Appeal from the Dearborn
                                                               Superior Court
      State of Indiana,                                        The Honorable Jonathan N.
      Appellee-Plaintiff.                                      Cleary, Judge
                                                               Trial Court Cause Nos.
                                                               15D01-1610-F6-363
                                                               15D01-1611-F6-403



      Mathias, Judge.


[1]   Stacy Demaree (“Demaree”) pleaded guilty to Level 6 felony possession of

      heroin in Dearborn Superior Court. She also admitted that the offense was a

      Court of Appeals of Indiana | Memorandum Decision 15A04-1710-CR-2335 | April 12, 2018              Page 1 of 9
      probation violation. Sentencing was left to the discretion of the trial court, and

      Demaree received a two and one-half year sentence executed in the Department

      of Correction (“DOC”) with one and one-half year suspended to probation. The

      court also revoked her 870-day, previously suspended sentence. Demaree now

      appeals and argues that her sentence is inappropriate in light of the nature of the

      offense and the character of the offender and that the trial court abused its

      discretion when it revoked her suspended sentence.

[2]   We affirm.


                                  Facts and Procedural History
[3]   Demaree has a tortured history of heroin addiction and abuse. In 2009, she was

      convicted of dealing heroin and received an eight-year sentence with six years

      suspended to probation. Demaree then violated her probation, and it was

      revoked. She was required to serve four years of her sentence. The trial court

      offered Demaree the opportunity to participate in the CLIFF program in the

      DOC, but she decided not to because, in her words, “I had been clean for two

      years and I thought I was okay.” Tr. p. 26.


[4]   In 2015, soon after her release, Demaree traveled to Cincinnati to get drugs

      and crossed the border into Kentucky where she did heroin in her car while her

      seven-month old son was in the vehicle. She was arrested in Boone County,

      Kentucky and received five years of reporting probation. Demaree subsequently

      failed a drug screen—for heroin—and an active warrant was issued for her

      arrest.

      Court of Appeals of Indiana | Memorandum Decision 15A04-1710-CR-2335 | April 12, 2018   Page 2 of 9
[5]   On October 11, 2016, Demaree was at work in Dearborn County, Indiana

      when the Kentucky warrant was served. She had heroin on her at the time, and

      she was arrested. Demaree pleaded guilty to Level 6 felony possession at her

      initial hearing on the charge, and on October 25, she was sentenced to 910 days

      with 870 days suspended to probation. Four days later, Demaree was released

      from the DOC to the hospital to receive medical treatment for complications

      arising from pregnancy.1 While in the hospital, Demaree received her personal

      property which included heroin in her wallet. She did the heroin, nodded out,

      and the nurses found her and called the police.


[6]   On November 10, the State charged Demaree with Level 6 felony possession

      and filed to revoke her probation. On April 20, 2017, she pleaded guilty to the

      probation violation and the new offense. At sentencing on September 7, the trial

      court revoked the 870 days of her suspended sentence, and she was ordered to

      serve two and one-half years with one and one-half year suspended to probation

      and one year executed in the DOC for the new offense. The two sentences were

      to run concurrently.


[7]   Demaree now appeals her sentence and the trial court’s revocation of her

      probation.




      1
       Demaree was eighteen weeks pregnant at the time. Appellant’s App. Vol. 3, p. 9. And the child was
      subsequently born in February 2017 addicted to methadone. Tr. p. 29.

      Court of Appeals of Indiana | Memorandum Decision 15A04-1710-CR-2335 | April 12, 2018          Page 3 of 9
                                      I. Appropriateness of Sentence

[8]    Demaree first argues that the one year executed sentence by the trial court for

       Level 6 felony possession is inappropriate. Specifically, Demaree contends that

       her sentence is inappropriate because she desperately needs drug treatment and

       not incarceration. See Appellant’s Br. at 14–16.


[9]    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.” In conducting our review, “[w]e do not look

       to determine if the sentence was appropriate; instead we look to make sure the

       sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.

       2012). “[S]entencing is principally a discretionary function in which the trial

       court’s judgment should receive considerable deference.” Cardwell v. State, 895

       N.E.2d 1219, 1222 (Ind. 2008). Thus, although we have the power to review

       and revise sentences, the principal role of appellate review should be to attempt

       to “leaven the outliers, and identify some guiding principles for trial courts and

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

       perceived ‘correct’ result in each case.” Id. at 1225. It is Demaree’s burden on

       appeal to establish that her sentence is inappropriate. Grimes v. State, 84 N.E.3d

       635, 645 (Ind. Ct. App. 2017), trans. denied.


[10]   When considering the nature of the offense, we observe that “the advisory

       sentence is the starting point the Legislature selected as appropriate for the

       crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The
       Court of Appeals of Indiana | Memorandum Decision 15A04-1710-CR-2335 | April 12, 2018   Page 4 of 9
       advisory sentence for a Level 6 felony is one year, with a sentencing range of six

       months to two and one-half years. Ind. Code § 35-50-2-7(b). Thus, Demaree

       was ordered to serve the advisory sentence.


[11]   Concerning the nature of the offense, the trial court allowed Demaree to receive

       medical treatment relating to her pregnancy while incarcerated. At the hospital,

       she was given her purse, which still contained heroin in her wallet. She

       proceeded to use the heroin in the hospital room at the time she was receiving

       medical treatment for her unborn child. The nature of the offense here does not

       warrant revision of Demaree’s sentence.


[12]   Regarding Demaree’s character, she has a lengthy criminal history, she has

       violated probation on several occasions, and she has failed to take advantage of

       numerous opportunities she has been provided in effort to help get and remain

       sober. We acknowledge that Demaree “is a victim in the growing opiate

       epidemic.” Appellant’s Br. at 15. However, she has had opportunities for

       treatment, and to this point, they have unfortunately all proven unsuccessful.


[13]   In 2016, she sought treatment on her own in Battlecreek, Michigan. She

       completed it but acknowledged that she did not benefit from it nor was she

       ready for it. Tr. p. 18. She was placed in WRAP House in Covington,

       Kentucky, but she was pregnant at the time and was medically discharged after

       only two days of treatment. She attempted to receive treatment at the Recovery

       Center in South Bend, but they did not accept her because she was not

       “medically stable enough.” Id. at 19. Demaree was provided the opportunity to


       Court of Appeals of Indiana | Memorandum Decision 15A04-1710-CR-2335 | April 12, 2018   Page 5 of 9
       participate in the CLIFF program in the DOC, but she decided not to because

       she had been clean for two years and thought she was okay. Id. at 25–26. She

       was also given the opportunity to take part in JCAP,2 but she overslept for one

       of the sessions and was removed from the program. Moreover, Demaree was

       offered participation in both the AA and NA programs to no avail.


[14]   Demaree has been provided several opportunities to take part in treatment

       programs to help with her addiction. However, she continues to use heroin

       regularly. And most concerning, she has used it around her children and while

       pregnant. We hope that for her sake, and for the sake of her three children, that

       after her release, she will take rehabilitation seriously and “be able to reenter the

       world as a productive member of society.” Appellant’s Br. at 16. However, we

       cannot say that the trial court’s decision to impose a one-year executed sentence

       here is an “outlier” that should be reversed under our constitutional authority to

       review and revise sentences. Caraway v. State, 977 N.E.2d 469, 473 (Ind. Ct.

       App. 2012), trans. denied.


                                                II. Probation Sentence

[15]   Demaree also argues that the trial court abused its discretion when it ordered

       her to serve the 870 days of her previously suspended sentence. Demaree does

       not deny that she violated the terms of her probation; to the contrary, she

       admitted to having done so. She claims only that the trial court abused its




       2
           The JCAP program is a ninety-day in-patient treatment program offered inside the jail. Tr. p. 9.


       Court of Appeals of Indiana | Memorandum Decision 15A04-1710-CR-2335 | April 12, 2018                  Page 6 of 9
       discretion in ordering the execution of the entirety of the suspended sentence

       because: (1) the nature of the violation was minor; (2) she readily admitted to

       the violation; and (3) her medical condition warrants mitigation. Appellant’s

       Br. at 12.3 We disagree.


[16]   Upon a finding of a probation violation, a trial court may impose one or more

       of the following sanctions:


                (1)      Continue the person on probation, with or without
                         modifying or enlarging the conditions.
                (2)      Extend the person’s probationary period for not more than
                         one (1) year beyond the original probationary period.
                (3)      Order execution of all or part of the sentence that was
                         suspended at the time of initial sentencing.


       Ind. Code § 35-38-2-3(h).


[17]   A defendant is not entitled to serve a sentence in a probation program; rather,

       such placement is a matter of grace and a conditional liberty that is a favor, not

       a right. Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind. Ct. App. 2006). We

       review the trial court’s sentencing decisions on probation violations for an

       abuse of discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). An abuse

       of discretion occurs where the decision is clearly against the logic and effect of




       3
         To the extent Demaree relies on our court’s decision in Johnson v. State, 62 N.E.3d 1224 (Ind. Ct. App.
       2016), as support for her argument that the trial court abused its discretion when it ordered execution of her
       suspended sentence, we note that the defendant in Johnson did not commit a new criminal offense, he had
       limited cognitive ability, and he had succeeded in alternative placement before. Id. at 1231.

       Court of Appeals of Indiana | Memorandum Decision 15A04-1710-CR-2335 | April 12, 2018               Page 7 of 9
       the facts and circumstances before the court. Id. The trial court should be given

       considerable leeway in deciding how to proceed following the revocation of

       probation. Id. Consequently, so long as proper procedures have been followed,

       the trial court may order execution of a suspended sentence after revoking

       probation. Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct. App. 1999); see also

       I.C. § 35-38-2-3(h).


[18]   Here, Demaree committed a new criminal offense just four days after receiving

       a sentence with 870 days suspended to probation. And this is not Demaree’s

       first probation violation. She has violated probation several times over the

       years, including four times in one case before it was ultimately revoked.

       Demaree argues that she “had significant physical and mental health conditions

       that impaired her ability to complete probation and did not warrant a complete

       revocation of her sentence.” Appellant’s Br. at 14. However, this undermines

       the seriousness of Demaree’s offense. Moreover, she acknowledged during her

       sentencing hearing that she was afforded several opportunities to receive

       treatment for her addiction:


               [State]:         Ms. Demaree it seems like you’ve had the benefit of
                                a lot of treatment facilities, would you agree? I
                                mean you’ve had the WRAP House. You were only
                                there for a couple of days. You were discharged
                                from South Bend. You couldn’t make it through the
                                -- the program for medical discharge. You were
                                supposed to attend the one in prison but you ended
                                up getting work release and you didn’t do AA or
                                NA after your conviction in Ripley County because



       Court of Appeals of Indiana | Memorandum Decision 15A04-1710-CR-2335 | April 12, 2018   Page 8 of 9
                                you didn’t think you had a problem, and yet today
                                this is what you’re asking the Court for?

               [Demaree]: Yes.

               [State]:         And you were also terminated from JCAP?

               [Demaree]: Yes.


       Tr. pp. 31–32.

[19]   Instead of taking advantage of numerous opportunities, Demaree failed to

       undergo meaningful treatment and committed the very same act that resulted in

       being placed on probation in the first place—possessing and using heroin. The

       trial court was well within its discretion to order Demaree to serve the 870-day

       balance of her previously suspended sentence.


                                                 Conclusion
[20]   Based on the facts and circumstances before us, we conclude that Demaree has

       not met her burden of persuading us that her sentence is inappropriate in light

       of the nature of the offense and the character of the offender. Further, the trial

       court did not abuse its discretion when it ordered Demaree to serve the 870

       days of her previously suspended sentence. Accordingly, we affirm.


       Najam, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A04-1710-CR-2335 | April 12, 2018   Page 9 of 9
