MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Nov 13 2019, 11:02 am

court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                      Curtis T. Hill, Jr.
Alcorn Sage Schwartz &                                  Attorney General of Indiana
Magrath, LLP
                                                        Evan Matthew Comer
Madison, Indiana                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michelle R. Tollefson,                                  November 13, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1168
        v.                                              Appeal from the Dearborn
                                                        Superior Court
State of Indiana,                                       The Honorable Jonathan N.
Appellee-Plaintiff                                      Cleary, Judge
                                                        Trial Court Cause No.
                                                        15D01-1810-F1-3



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1168 | November 13, 2019                Page 1 of 8
[1]   Michelle Tollefson appeals the twenty-one-year sentence imposed by the trial

      court after Tollefson pleaded guilty to Level 2 felony dealing in

      methamphetamine in excess of ten grams, arguing that the sentence is

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

      that the sentence is not inappropriate, we affirm.


                                                    Facts
[2]   On July 3, 2018, Tollefson and Brent Lutz traveled to Cincinnati to purchase

      methamphetamine after their supply, which they had been using that day and

      the night before, ran out. When they arrived in Cincinnati, Tollefson watched

      Lutz approach a person she did not know and purchase something. She then

      saw Lutz snort the substance he had purchased, which they both believed to be

      heroin, but was actually fentanyl. Shortly thereafter, they met their contact and

      purchased fourteen grams of methamphetamine; both Lutz and Tollefson used

      some of the methamphetamine and then returned to Tollefson’s apartment in

      Dearborn County.


[3]   After they arrived at Tollefson’s apartment, she gave Lutz a “couple of

      Percocet’s [sic],” for which she did not have a prescription. Tr. Vol. II p. 26.

      Later, Lutz went outside to smoke a cigarette and Tollefson took a shower.

      While in the shower, Tollefson heard a noise. She went outside the apartment

      and found that Lutz had passed out, face planting onto a chair. There was

      vomit on the concrete near where Lutz had fallen, and Lutz was making a noise

      that sounded like he was crying. Tollefson tried to move Lutz, but she was


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1168 | November 13, 2019   Page 2 of 8
      unable to do so by herself, so she called a friend for help. Together, they moved

      Lutz into the living room, where they laid him on the floor. She pushed Lutz

      onto his side so that he could breathe and placed a pillow under his head to

      keep his airway open.


[4]   Tollefson waited with Lutz for approximately thirty minutes and then slept for

      a couple of hours. When Tollefson awoke, Lutz was still on the living room

      floor and was making snoring sounds. Tollefson went to work around 5:30

      a.m. that morning and, when she returned home around 3:30 that afternoon,

      Lutz was dead. Tollefson called 911. Medical personnel examined Lutz’s

      body. It was in a state of lividity, there was black pooling on his back, and he

      had maggots and insect eggs in his eyes. The autopsy later established that

      Lutz died of a mixed drug overdose. He had fentanyl, methamphetamine,

      amphetamine, and oxycodone (Percocet) in his system.


[5]   Law enforcement arrived with emergency responders, but Tollefson refused to

      consent to a search. The officers then applied for a search warrant. While

      awaiting the warrant, the officers spoke with Tollefson, who admitted that she

      had deleted several text messages from her phone that were related to drug

      transactions. Initially, Tollefson denied that Lutz had a cell phone, but later in

      the interview, she admitted that he did and pulled it out of her pocket. After

      police obtained a search warrant, they searched Tollefson’s residence. They

      found fourteen grams of methamphetamine, several Percocet pills, a smoking

      device, a digital scale, and plastic baggies, among other things.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1168 | November 13, 2019   Page 3 of 8
[6]   Police officers arrested Tollefson, who was interviewed again on July 5, 2018.

      She admitted that she dealt methamphetamine to a “small number of people”

      and that she regularly traveled to Cincinnati to purchase methamphetamine,

      which she brought home to Dearborn County and sold. Id. at 24.


[7]   On October 29, 2018,1 the State charged Tollefson with Level 1 felony dealing

      in a controlled substance resulting in death, Level 2 felony dealing in

      methamphetamine in excess of ten grams, Level 5 felony dealing in a narcotic,

      Level 6 felony obstruction of justice, Level 6 felony possession of a narcotic,

      and Class C misdemeanor possession of paraphernalia. On March 11, 2019,

      Tollefson pleaded guilty to the Level 2 felony charge in exchange for the

      dismissal of the remaining charges; sentencing was left to the trial court’s

      discretion.


[8]   The trial court held a sentencing hearing on April 26, 2019. The trial court

      found the following mitigating circumstances: (1) Tollefson pleaded guilty;

      (2) she had a dependent son; and (3) she expressed remorse for her conduct. It

      also found the following aggravating factors: (1) Tollefson’s criminal history

      and history of probation violations; (2) the “heinous” nature of the offense; and

      (3) the substantial damage done to others as a result of the offense. Id. at 104.

      The trial court denied Tollefson’s request that she be recommended for




      1
       It is unclear from the record why there was a lengthy delay between Tollefson’s initial arrest and the filing
      of criminal charges against her.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1168 | November 13, 2019                    Page 4 of 8
       Purposeful Incarceration and sentenced her to twenty-one years, with two years

       suspended to probation. Tollefson now appeals.


                                    Discussion and Decision
[9]    Tollefson’s sole argument on appeal is that the sentence is inappropriate in light

       of the nature of the offense and her character pursuant to Indiana Appellate

       Rule 7(B). We must “conduct [this] review with substantial deference and give

       ‘due consideration’ to the trial court’s decision—since the ‘principal role of

       [our] review is to attempt to leaven the outliers,’ and not to achieve a perceived

       ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)

       (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal

       citations omitted).


[10]   Tollefson was convicted of one Level 2 felony, for which she faced a sentence

       of ten to thirty years, with an advisory term of seventeen and one-half years.

       Ind. Code § 35-50-2-4.5. The trial court imposed a twenty-one-year sentence,

       with two years suspended to probation, meaning that Tollefson faces an

       executed sentence that is slightly longer than an advisory term.


[11]   With respect to the nature of the offense, Tollefson contributed to the death of a

       close friend while involved in drug dealing activities. Over a twenty-four-hour

       period, she smoked methamphetamine with Lutz at her apartment, travelled to

       Cincinnati, where they purchased additional methamphetamine for her to sell,

       witnessed Lutz snort what she believed to be heroin, and traveled back to her

       residence, where she provided Lutz with Percocet in the hours before he lost

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1168 | November 13, 2019   Page 5 of 8
       consciousness and then died of an overdose. Moreover, the night before his

       death, Lutz passed out, vomited, and was making a crying noise. Tollefson was

       concerned enough about Lutz’s breathing that she propped his head on a pillow

       to protect his airway, but evidently not concerned enough to seek medical

       assistance. We infer that she was reluctant to open her residence to the

       presence of medical and law enforcement personnel, given the readily apparent

       drug use and dealing activity in the apartment. By the time she finally called

       911, Lutz had been dead for so long that he had black pooling in his back and

       maggots in his eyes. We do not find that the nature of the offense renders the

       sentence inappropriate.


[12]   With respect to Tollefson’s character, we acknowledge, as did the trial court,

       that she pleaded guilty (though she reaped a substantial benefit in return with

       the dismissal of many other charges), expressed sincere remorse, and has a

       dependent son. But we must also examine her criminal history, which includes

       convictions for theft and operating a vehicle while intoxicated. She also entered

       into a diversion program for a possession of paraphernalia charge prior to those

       offenses. Moreover, these previous convictions led to four probation violations,

       including multiple violations for positive drug screens, which led to the

       revocation of probation in both cases. She also has prior arrests for Level 5

       felony dealing in a narcotic drug and Level 6 felony unlawful possession of a

       syringe, and admitted to police that in addition to dealing methamphetamine,

       she also dealt heroin for a lengthy period of time. She continues to drive out of

       state to purchase methamphetamine, which she then introduces into her


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1168 | November 13, 2019   Page 6 of 8
       community in Dearborn County. Despite Tollefson’s many drug-related

       contacts with the criminal justice system, she is unwilling or unable to reform

       her behavior to comport with the rule of law. We do not find that Tollefson’s

       character renders the sentence inappropriate.


[13]   We acknowledge the insidiousness of addiction, and in general, we agree that

       programs such as Purposeful Incarceration2 benefit all of society, including both

       the defendant and the criminal justice system. We encourage trial courts to

       utilize such programs whenever possible, and question why the trial court

       denied Tollefson this opportunity. That said, when engaging in a Rule 7(B)

       analysis, we believe it exceeds our authority to examine the defendant’s

       placement in a particular program, as opposed to the length of the sentence. See

       Miller v. State, 105 N.E.3d 194, 197 (Ind. Ct. App. 2018) (a defendant’s

       “placement within a particular program [including Purposeful Incarceration] is

       not an issue subject to this court’s review”). Therefore, while we encourage the

       trial court here to reexamine Tollefson’s case to consider recommending

       Purposeful Incarceration, we decline to order that such action be taken.




       2
        Purposeful Incarceration is a cooperative project between the Department of Correction (DOC) and
       Indiana’s trial courts. With this program, the DOC “works in collaboration with Judges who can sentence
       chemically addicted offenders and document that they will ‘consider a sentence modification’ should the
       offender successfully complete an IDOC Therapeutic community. This supports the [DOC] and the
       Judiciary to get addicted offenders the treatment that they need and work collaboratively to support their
       successful re-entry into society.” Ind. Dep’t of Corr., Purposeful Incarceration,
       https://www.in.gov/idoc/2798.htm (last visited October 30, 2019).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1168 | November 13, 2019                Page 7 of 8
[14]   In sum, we find that the sentence imposed by the trial court is not inappropriate

       in light of the nature of the offense and Tollefson’s character.


[15]   The judgment of the trial court is affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1168 | November 13, 2019   Page 8 of 8
