                                                           FILED
                                                      Dec 28 2018, 4:06 pm

                                                           CLERK
                                                       Indiana Supreme Court
                                                          Court of Appeals
                                                            and Tax Court




                        IN THE

 Indiana Supreme Court
           Supreme Court Case No. 18S-CR-623

                   Lisa Livingston,
                Appellant (Defendant below),

                             –v–

                   State of Indiana,
                  Appellee (Plaintiff below).


                 Decided: December 28, 2018

Appeal from the Orange Circuit Court, No. 59C01-1308-FA-546
            The Honorable Steven L. Owen, Judge

  On Petition to Transfer from the Indiana Court of Appeals,
                       No. 18A-CR-716




                     Per Curiam Opinion
Chief Justice Rush, and Justices David, Massa, and Goff concur.
                  Justice Slaughter dissents.
Per Curiam.

   Without a plea agreement, Lisa Livingston pled guilty to multiple drug
charges and admitted to being a habitual substance offender. The trial
court sentenced Livingston to an aggregate sentence of thirty years to be
served in the Indiana Department of Correction. Finding this to be a rare
and exceptional case, we grant Livingston’s petition to transfer and,
pursuant to Appellate Rule 7(B), reduce Livingston’s sentence to twenty-
three years with the time remaining to be served in community
corrections.

    In August 2013, police officers received information that Livingston
was manufacturing and dealing methamphetamine. Officer Andry was
familiar with Livingston and drove to her home. Andry was in the process
of securing a search warrant when Livingston arrived. She was
cooperative. Police recovered several baggies of methamphetamine
totaling 3.35 grams, one baggie of cocaine weighing 1.89 grams,1 and items
known to be used in manufacturing methamphetamine.

   Livingston was charged in the Orange Circuit Court with two Class A
felony counts of dealing in methamphetamine; one Class C felony count of
possession of methamphetamine; and two Class D felony counts,
possession of cocaine and possession of two or more chemical reagents or
precursors with the intent to manufacture a controlled substance.
(Appellant’s App. Vol. II, pp. 18-19.) The State also alleged Livingston is a
habitual substance offender.

   In November 2013, Livingston posted a $75,000 property bond and was
released on the condition she reside at Bliss House, a substance abuse
recovery home. Over the next four years, Livingston filed ten motions to
continue her trial. The State filed no objections (Trans. Pet. p. 9), and the




1Although the Court of Appeals decision indicates the methamphetamine weighed 5.6 grams
and the cocaine weighed 8.9 grams, the Indiana State Police lab report indicates the weights
were 3.35 grams and 1.89 grams respectively. (See Appellant’s App. Vol. II, pp. 133-34.)



Indiana Supreme Court | Case No. 18S-CR-623 | December 28, 2018                   Page 2 of 6
court granted each motion. During these four years, Livingston
accomplished much.

   Livingston lived in Bliss House for one year and then moved to its
transitional house for two years. She later served as chairperson of the
Bliss House alumni and was on the Bliss House Committee for two years.
In 2014, Livingston and her nephew started a roofing business, which
provided her with income. In 2017, Livingston used her own money and
donations to open BreakAway Home in Floyd County—a home for
women recovering from addiction. Livingston has served as the Executive
Director and night manager of BreakAway since its inception.

   In early 2017, Livingston asked to be placed in a pre-trial detention
program, which the court denied. Livingston voluntarily placed herself in
a program with Floyd County Community Corrections. She reported in
person two times per week and took random drug screens, all of which
were negative.

  On October 30, 2017, Livingston appeared in court and, without a plea
agreement, pled guilty to all charges and admitted to being a habitual
substance offender.

    On March 12, 2018, the court held Livingston’s sentencing hearing.
Livingston asked the court to allow her to serve her sentence in
community corrections. The State opposed placement in community
corrections but indicated that statutes would permit it. (Tr. pp. 24-25, 94.)
Andry, now retired after thirty years as a police officer, testified the more
he has been around Livingston the more “impressed” and “confident” he
is that “what she is doing [with BreakAway] is important work.” (Tr. p.
39.) Andry has seen nothing indicating Livingston will not “follow
through with what she’s started and what she’s been doing” if sentenced
to serve her time in community corrections. (Tr. p. 42.) “I don’t have a
crystal ball, but I’ve never, I guess staked my reputation on anybody
before for that, so that’s, that’s the feeling I have about it[.]” (Tr. pp. 42-
43.)

  Janeen Niehauss supervised Livingston’s voluntary participation in the
day reporting program run by Floyd County Community Corrections. At



Indiana Supreme Court | Case No. 18S-CR-623 | December 28, 2018          Page 3 of 6
the time, Livingston was residing in Floyd County at BreakAway home,
serving as the night manager. Niehauss, a program manager for day
reporting, testified that Livingston had been “completely compliant” for
381 days and met all the requirements for the day reporting program. (Tr.
pp. 66-67.) Niehauss further testified that the community corrections
program is willing to take and supervise Livingston for the duration of
whatever sentence the court imposed. (Tr. p. 75.) Numerous letters written
by family, friends, and community members in support of Livingston
were also admitted into evidence.

   The trial court sentenced Livingston to an aggregate term of thirty
years to be served in the Department of Correction. The Court of Appeals
affirmed, finding no abuse of discretion in the sentencing decision and
declining to revise Livingston’s sentence. Livingston v. State, No. 18A-CR-
716, 2018 WL 4782281 (Ind. Ct. App. Oct. 4, 2018).

     The Indiana Constitution, Article 7, Section 4, grants an appellate
court the power to revise a sentence in a criminal case. That authority is
implemented through Appellate Rule 7(B), which allows an appellate
court to revise a sentence it finds “is inappropriate in light of the nature of
the offense and the character of the offender.” Aside from revising the
length of a sentence, the place where a sentence is to be served is also an
appropriate focus for our review under 7(B). See Biddinger v. State, 868
N.E.2d 407, 414 (Ind. 2007); Hole v. State, 851 N.E.2d 302, 304 n.4 (Ind.
2006). The court’s role under Rule 7(B) is to “leaven the outliers,” Cardwell
v. State, 895 N.E.2d 1219, 1225 (Ind. 2008), and we reserve our 7(B)
authority for exceptional cases. Taylor v. State, 86 N.E.3d 157, 165 (Ind.
2017).

    We find this to be an exceptional case. The trial court’s oral sentencing
statement indicates the court thoughtfully considered the mitigating and
aggravating circumstances in reaching its sentencing decision.
Nevertheless, “[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.” Eckelbarger v.
State, 51 N.E.3d 169, 170 (Ind. 2016). After independent review, we




Indiana Supreme Court | Case No. 18S-CR-623 | December 28, 2018        Page 4 of 6
conclude the sentence imposed in this case is inappropriate in light of
Livingston’s offenses and character.

   Although the offenses for which Livingston was convicted are serious,
she fully cooperated with police and pled guilty to all charges without the
benefit of a plea agreement. And while Livingston committed the offenses
in 2013, effective July 1, 2014, the legislature has instructed courts to
construe the criminal code “in accordance with its general purposes, to . . .
reduce crime by promoting the use of evidence based best practices for
rehabilitation of offenders in a community setting” and “keep dangerous
prisoners in prison by avoiding the use of scarce prison space for
nonviolent offenders.” Ind. Code § 35-32-1-1(5), (6). The evidence shows
Livingston has committed no offenses since her arrest in August 2013 and
has dedicated her time to becoming a productive member of her
community and helping others who suffer from addiction.

   Because the crimes for which Livingston pled guilty occurred in 2013,
the mandatory minimum sentence she may receive is twenty-three years.
See I.C. §§ 35-50-2-4 (Supp. 2005), -10 (Supp. 2006). We revise Livingston’s
sentence to twenty-three years and direct that whatever time remains be
served in community corrections. We acknowledge that placing a
defendant in community corrections for such a lengthy period is highly
unusual. But we believe it to be appropriate in these unique
circumstances, which include the willingness of Floyd County
Community Corrections to supervise Livingston. If Livingston violates the
terms of her community corrections placement, then the trial court may
revoke the placement. See I.C. § 35-38-2.6-5.

  We remand to the trial court to issue a revised sentencing order
consistent with this opinion. We summarily affirm the remainder of the
Court of Appeals decision. See Ind. Appellate Rule 58(A)(2).




Rush, C.J., and David, Massa, and Goff, JJ., concur.
Slaughter, J., dissents, believing that transfer should be denied.




Indiana Supreme Court | Case No. 18S-CR-623 | December 28, 2018     Page 5 of 6
ATTORNEYS FOR APPELLANT
Stacy R. Uliana
Bargersville, Indiana

Jennifer H. Culotta
New Albany, Indiana

ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana

Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana




Indiana Supreme Court | Case No. 18S-CR-623 | December 28, 2018   Page 6 of 6
