                                                                                  FILED
                                                                              Feb 27 2020, 8:17 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Brian A. Karle                                             Curtis T. Hill, Jr.
      Ball Eggleston, P.C.                                       Attorney General
      Lafayette, Indiana                                         Marjorie Lawyer-Smith
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Brittany Nicole Mullins,                                   February 27, 2020
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 19A-CR-1993
              v.                                                 Appeal from the Tippecanoe
                                                                 Superior Court
      State of Indiana,                                          The Honorable Steven Meyer,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause Nos.
                                                                 79D02-1808-F4-34
                                                                 79D02-1904-F2-18



      Pyle, Judge.


                                         Statement of the Case
[1]   Brittany Mullins (“Mullins”) appeals the twenty-four-and-one-half-year (24.5)

      aggregate sentence imposed after she pleaded guilty to Level 2 felony



      Court of Appeals of Indiana | Opinion 19A-CR-1993 | February 27, 2020                           Page 1 of 11
      conspiracy to commit dealing in methamphetamine1 and two counts of Level 2

      felony dealing in methamphetamine2 in Cause Number 79D02-1904-F2-18

      (“Cause Number 18”) and Level 4 felony dealing in methamphetamine3 in

      Cause Number 79D02-1808-F4-34 (“Cause Number 34”). She argues that the

      trial court abused its discretion when it: (1) ordered the sentences in the two

      causes to run consecutively to each other; and (2) identified the seriousness of

      the offense as an aggravating factor. Concluding that the trial court did not

      abuse its discretion, we affirm Mullins’ sentence.


[2]   We affirm.


                                                      Issues
                 1.        Whether the trial court abused its discretion when it
                           ordered the sentences in the two causes to run
                           consecutively to each other.

                 2.        Whether the trial court abused its discretion when it
                           identified the seriousness of the offense as an aggravating
                           factor.

                                                       Facts
[3]   Twenty-two-year-old Mullins sold sixty-one (61) grams of methamphetamine to

      undercover agents in four controlled buys in August 2018. The State




      1
          IND. CODE §§ 35-48-4-1.1 and 35-41-5-2.
      2
          I.C. § 35-48-4-1.1
      3
          Id.


      Court of Appeals of Indiana | Opinion 19A-CR-1993 | February 27, 2020              Page 2 of 11
      subsequently charged her under Cause Number 18 with Level 2 felony

      conspiracy to commit dealing in methamphetamine; three counts of Level 2

      felony dealing in methamphetamine; Level 3 felony dealing in

      methamphetamine; three counts of Level 4 felony possession of

      methamphetamine; and Level 5 felony possession of methamphetamine.


[4]   One week after the last controlled buy, a Lafayette Police Department Officer

      stopped a van after its driver failed to signal a turn. Mullins was a passenger in

      the van. A search of the van revealed more than three grams of

      methamphetamine, scales, baggies, a marijuana pipe, syringes, and a drug

      transaction ledger. Mullins admitted that the items found in the vehicle

      belonged to her and that she was dealing the methamphetamine. The State

      charged Mullins in Cause Number 34 with Level 4 felony dealing in

      methamphetamine; Level 6 felony possession of methamphetamine; Level 6

      felony unlawful possession of a syringe; and Class C felony possession of

      paraphernalia.


[5]   In August 2019, Mullins pleaded guilty to Level 2 felony conspiracy to commit

      dealing in methamphetamine and two counts of Level 2 felony dealing in

      methamphetamine in Cause Number 18 and to Level 4 felony dealing in

      methamphetamine in Cause Number 34. The State dismissed the remaining

      counts. The plea agreement left sentencing to the trial court’s discretion.


[6]   At the conclusion of the combined sentencing hearing, the trial court found the

      following aggravating factors: (1) Mullins’ criminal history, which included a


      Court of Appeals of Indiana | Opinion 19A-CR-1993 | February 27, 2020    Page 3 of 11
      misdemeanor conviction for possession of methamphetamine, a felony

      conviction for possession of methamphetamine, two petitions to revoke

      probation, one of which was found to be true; and a pending charge for felony

      auto theft; (2) “the offenses occurred just within months of being released from

      jail on another offense;” (3) “the seriousness of the offense, the 61 grams of

      drugs that were dealt within a three-week period of time is very serious to this

      Court;” (4) prior attempts at rehabilitation had failed; and (5) the repetitive

      nature of her crimes as demonstrated by her prior possession and dealing

      convictions. (Tr. Vol. 2 at 54). The trial court specifically observed that

      Mullins “just was not learning her lesson[.]” (Tr. Vol. 2 at 55). Mullins’ PSI

      also revealed an extensive drug use history that included daily use of

      methamphetamine and heroin for the previous four years. Mullins also

      admitted to engaging in prostitution and selling drugs to support her $400.00-

      per-day habit.


[7]   At the end of the sentencing hearing, the trial court sentenced Mullins to

      eighteen (18) years for each of the three Level 2 felony convictions in Cause

      Number 18. The trial court further ordered the sentences for each felony to run

      concurrently to each other because they “were controlled buys.” (Tr. Vol. 2 at

      56). In Cause Number 34, the trial court sentenced Mullins to six and one half

      years for the Level 4 felony conviction. The trial court also ordered the

      sentence in Cause Number 34 and the sentence in Cause Number 18 to run

      consecutively to each other because Cause Number 34 “was a separate traffic

      stop in which they found a lot of meth on her at that time. It involved different


      Court of Appeals of Indiana | Opinion 19A-CR-1993 | February 27, 2020      Page 4 of 11
       officers. It was a random stop when she was on the streets, a passenger in a car,

       and it was not related to a controlled buy.” (Tr. Vol. 2 at 56).


[8]    Mullins now appeals her sentence.


                                                     Decision
[9]    Mullins argues that the trial court abused its discretion when it: (1) ordered the

       sentences in the two causes to run consecutively to each other; and (2)

       identified the seriousness of the offense as an aggravating factor. Before

       addressing these issues, we set forth the standard of review for sentencing cases.


[10]   Sentencing decisions rest within the sound discretion of the trial court.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). So long as the sentence is

       within the statutory range, it is subject to review only for an abuse of discretion.

       Id. An abuse of discretion occurs if the decision is clearly against the logic and

       effect of the facts and circumstances before the court or the reasonable,

       probable, and actual deductions to be drawn therefrom. Id. at 491. A trial

       court may abuse its discretion in a number of ways, including: (1) failing to

       enter a sentencing statement at all; (2) entering a sentencing statement that

       includes aggravating and mitigating factors that are unsupported by the record;

       (3) entering a sentencing statement that omits reasons that are clearly supported

       by the record; or (4) entering a sentencing statement that includes reasons that

       are improper as a matter of law. Id. at 490-91.


       1.      Consecutive Sentences


       Court of Appeals of Indiana | Opinion 19A-CR-1993 | February 27, 2020       Page 5 of 11
[11]   Mullins first argues that the trial court abused its discretion when it ordered the

       sentences in the two causes to run consecutively to each other. In support of

       her argument, Mullins directs us to Beno v. State, 581 N.E.2d 922 (Ind. 1991).

       Therein, the Indiana Supreme Court held that it was manifestly unreasonable to

       impose consecutive sentences for multiple drug dealing convictions where the

       convictions were based upon nearly identical State-sponsored sales to a police

       informant as part of an ongoing sting operation. Id. at 924.


[12]   Here, the trial court acknowledged and followed Beno when it ordered the

       controlled buy convictions in Cause Number 18 to run concurrently to each

       other. Thereafter, the trial court acknowledged and distinguished Beno when it

       ordered the sentence in Cause Number 18 to run consecutively to the sentence

       in Cause Number 34. Specifically, the trial court pointed out that the

       conviction in Cause Number 34 resulted from a separate traffic stop that

       involved different officers and that it was in no way related to a controlled buy.

       It was a random stop when Mullins was simply a passenger in the van.


[13]   We agree with the State that “the trial court followed the Beno holding and

       subsequent cases when it imposed concurrent sentences in [Cause Number 18],

       but it was not prevented by that precedent from ordering those convictions to

       run consecutively to the sentence in [Cause Number 34] for an unrelated

       offense.” (State’s Br. 13). We find no abuse of the trial court’s discretion.


       2.      Aggravating Factor




       Court of Appeals of Indiana | Opinion 19A-CR-1993 | February 27, 2020     Page 6 of 11
[14]   Mullins also argues that the trial court abused its discretion when it identified

       the seriousness of the offense as an aggravating factor. Specifically, the trial

       court explained that it took very seriously that “61 grams of drugs . . . were

       dealt within a three-week period of time[.]” (Tr. Vol. 2 at 54).


[15]   The trial court’s consideration of the total amount of drugs that Mullins sold

       during such a short time period is no different than the trial court considering

       the particularized circumstances of the factual elements as aggravating factors

       when evaluating the nature of the offense. See McElroy v. State, 865 N.E.2d 584,

       589-90 (Ind. 2007) (explaining that when evaluating the nature of the offense,

       the trial court may properly consider the particularized circumstances of the

       factual elements as aggravating factors). We find no abuse of the trial court’s

       discretion.


[16]   We further note that even if the trial court had erred in identifying this

       aggravating factor, we would not remand Mullins’ case to the trial court for

       resentencing. When a trial court abuses its discretion by considering an

       improper aggravating circumstance, we remand for resentencing only “if we

       cannot say with confidence that the trial court would have imposed the same

       sentence had it properly considered reasons that enjoy support in the record.”

       Anglemyer, 868 N.E.2d at 491.


[17]   Here, the trial court found the following additional aggravating factors: (1)

       Mullins’ extensive criminal history, which included a misdemeanor and a

       felony conviction as well as a pending felony charge; (2) the offenses occurred


       Court of Appeals of Indiana | Opinion 19A-CR-1993 | February 27, 2020        Page 7 of 11
       within months of being released from jail on another offense; (3) prior attempts

       at rehabilitation had failed; and (4) the repetitive nature of her crimes as

       demonstrated by prior possession and dealing convictions. Mullins does not

       challenge the validity of these additional aggravating circumstances. In light of

       these additional unchallenged aggravating circumstances, we are confident that

       the trial court would have imposed the same sentence irrespective of its

       consideration of the seriousness of the offense.


[18]   Affirmed.


       May, J., concurs.


       Crone, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 19A-CR-1993 | February 27, 2020      Page 8 of 11
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Brittany Nicole Mullins,                                   Court of Appeals Case No.
                                                                  19A-CR-1993
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff



       Crone, Judge, dissenting.

[19]   I agree with my colleagues that the imposition of consecutive sentences in this

       case does not constitute an abuse of discretion. I respectfully dissent, however,

       because the sentence in this case is an outlier that warrants our independent

       review and revision pursuant to Indiana Appellate Rule 7(B). As our supreme

       court stated in Wampler v. State, 67 N.E.3d 633 (Ind. 2017), “[e]ven where a

       trial court has not abused its discretion in sentencing, the Indiana Constitution

       authorizes independent appellate review and revision of a trial court’s

       sentencing decision.” Id. at 634 (citing Ind. Const. art 7, §§ 4, 6; Anglemyer v.

       State, 868 N.E.2d 482, 491 (Ind. 2007). This constitutional authority is

       implemented through Appellate Rule 7(B), which states, “The 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.” Thus, even when the trial

       Court of Appeals of Indiana | Opinion 19A-CR-1993 | February 27, 2020                  Page 9 of 11
       court has not abused its discretion, an Appellate Rule 7(B) analysis can result in

       a downward revision of the sentence. Wampler, 67 N.E.3d at 634.


[20]   Here, the trial court imposed an aggregate sentence of twenty-four and a half

       years. In determining whether the nature of Mullins’s offenses and her

       character render her sentence inappropriate, “we may look to any factors

       appearing in the record.” Boling v. State, 982 N.E.2d 1055, 1060 (Ind. Ct. App.

       2013).


[21]   Turning first to the nature of the offenses, Mullins sold methamphetamine to an

       undercover detective in controlled buys on August 6, 13, 16, and 20, 2018. The

       police could have arrested her after any one of these buys. During the buys, the

       undercover detective met Mullins’s co-conspirator. A week after the last

       controlled buy, in an apparently pretexual stop, the police pulled over a vehicle,

       in which both Mullins and her co-conspirator were passengers, for failing to

       signal a turn into a gas station. The cumulative amount of the

       methamphetamine involved in these five incidents was sixty-one grams, worth

       approximately $5000.


[22]   As to Mullins’s character, the record reveals that she has a history of childhood

       sexual molestation and physical abuse, early exposure to drugs and alcohol,

       untreated mental health issues, and longstanding substance abuse as a means of

       self-medication. Defendant’s Ex. D. Mullins was first introduced to opiates at

       the age of fourteen, when she was involuntarily injected with heroin by her

       aunt. Id. After that, she began using a variety of drugs and clearly has a


       Court of Appeals of Indiana | Opinion 19A-CR-1993 | February 27, 2020   Page 10 of 11
       significant addiction to illegal substances. Appellant’s App. Vol. 2 at 125. She

       has been diagnosed with bipolar disorder, schizoaffective disorder, and

       paranoid schizophrenia. Id. at 119; Defendant’s Ex. D. She resorted to

       prostitution and has been homeless since April 2018. Appellant’s App. Vol. 2

       at 124. She was a desperate and damaged twenty-two-year old when she

       committed these offenses. She expressed hopelessness that she had no way out

       of her situation and had hit rock bottom, and she said that she did not want that

       life anymore. Defendant’s Ex. D. At sentencing, Mullins reiterated that she

       wanted to change, to participate in substance abuse rehabilitation, to learn to

       cope with herself, and to someday be a part of society. Tr. Vol. 2 at 43-44.


[23]   The trial court sentenced Mullins to eighteen years in cause number 79D02-

       1904-F2-18 and to six and a half years in cause number 79D02-1808-F4-34 and

       ordered the sentences in the two cause numbers to be served consecutively for

       an aggregate term of twenty-four and a half years. Given the nonviolent nature

       of Mullins’s offenses, the value of the drugs and relatively brief time involved,

       her young age, and her traumatic childhood, I believe that the twenty-four and

       a half-year aggregate sentence created by consecutive sentences is inappropriate.

       I would exercise our authority under Appellate Rule 7(B) to revise Mullins’s

       sentences to have the sentences in the two causes to run concurrently for an

       aggregate term of eighteen years. Accordingly, I must dissent from my

       colleagues’ decision to affirm Mullins’s sentence.




       Court of Appeals of Indiana | Opinion 19A-CR-1993 | February 27, 2020    Page 11 of 11
