MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any
                                                                   May 25 2017, 9:00 am
court except for the purpose of establishing
the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
estoppel, or the law of the case.                                      Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jennifer A. Joas                                        Curtis T. Hill, Jr.
Madison, Indiana                                        Attorney General of Indiana
                                                        Caryn N. Szyper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kayla M. Youngs,                                        May 25, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        39A01-1701-CR-116
        v.                                              Appeal from the Jefferson Circuit
                                                        Court
State of Indiana,                                       The Honorable Darrell M. Auxier,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        39C01-1602-F2-187



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 39A01-1701-CR-116 | May 25, 2017          Page 1 of 13
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Kayla M. Youngs (Youngs), appeals her sentence

      following her open guilty plea to two Counts of dealing in a narcotic drug,

      Level 5 felonies, Ind. Code § 35-48-4-1(a)(1)(C).


[2]   We affirm.


                                                  ISSUES
[3]   Youngs raises two issues on appeal, which we restate as follows:

      (1) Whether the trial court abused its sentencing discretion; and

      (2) Whether Youngs’ sentence is inappropriate in light of the nature of the

      offenses and her character.


                      FACTS AND PROCEDURAL HISTORY
[4]   On September 30, 2015, and October 27, 2015, the Jefferson County Sheriff’s

      Department used a confidential informant to purchase Hydrocodone from

      Youngs. During both controlled transactions, Young supplied the confidential

      informant with thirty Hydrocodone pills in exchange for $210.00 and $200.00,

      respectively. The total weight of the Hydrocodone pills was 12 grams from the

      first transaction and 12.63 grams from the second transaction.


[5]   On February 11, 2016, the State filed an Information, charging Youngs with

      two Counts of dealing in a narcotic drug as Level 2 felonies, I.C. § 35-48-4-

      1(a)(1)(C),(e)(1). On March 30, 2016, the trial court reduced Youngs’ bond and

      conditioned her pre-trial release on participation in the Jefferson County Pre-

      Court of Appeals of Indiana | Memorandum Decision 39A01-1701-CR-116 | May 25, 2017   Page 2 of 13
      Trial Release Program through Jefferson County Community Corrections, with

      an additional specific requirement of weekly drug screens. On November 14,

      2016, the Pre-Trial Coordinator of Jefferson County Community Corrections

      notified the trial court that Youngs was not in compliance with her pre-trial

      release conditions. In particular, the Pre-Trial Coordinator advised that

      Youngs had missed multiple appointments and had tested positive for

      methamphetamine in an instant drug screen. When the Pre-Trial Coordinator

      attempted to verify the result of Youngs’ drug screen with a lab test, Youngs

      failed to provide the urine sample as required.


[6]   On December 2, 2016, Youngs and the State executed a plea agreement,

      pursuant to which Youngs agreed to plead guilty to two reduced charges of

      dealing in a narcotic drug as Level 5 felonies. The State further agreed that it

      would dismiss Youngs’ pending charge for check deception in a separate case.

      The plea agreement left sentencing to the matter of the trial court. The same

      day, the trial court conducted a hearing on Youngs’ guilty plea. After a factual

      basis was presented to the trial court, the trial court heard evidence and

      argument regarding sentencing. Youngs testified that, after more than a decade

      of sobriety following a methamphetamine addiction, she had relapsed and was

      selling her prescription pain medicine in order to support her

      methamphetamine habit. The trial court took both the plea and the sentence

      under advisement. On January 4, 2017, the trial court accepted Youngs’ guilty

      plea and entered a judgment of conviction for two Counts of dealing in a

      narcotic drug as Level 5 felonies. The trial court ordered Youngs to serve


      Court of Appeals of Indiana | Memorandum Decision 39A01-1701-CR-116 | May 25, 2017   Page 3 of 13
      concurrent sentences of three years in the Indiana Department of Correction

      (DOC). The trial court further recommended Incarceration with a Purpose and

      requested the DOC to place Youngs at the Madison Correctional Facility with

      further enrollment in the GRIP Therapeutic Community Program. Following

      her completion of the GRIP Therapeutic Community Program, the trial court

      stated that it would “consider modification of [Youngs’ sentence] to probation

      supervised by Jefferson County Community Corrections.” (Appellant’s Conf.

      App. Vol. II, p. 109).


[7]   Youngs now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
                                     I. Abuse of Sentencing Discretion

[8]   Youngs claims that the trial court abused its discretion in sentencing her to

      concurrent three-year terms in the DOC. Sentencing decisions are a matter of

      trial court discretion and are reviewed on appeal only for an abuse of discretion.

      Anglemyer v. State, 868 N.E.2d 482, 490, clarified on reh’g, 875 N.E.2d 218 (Ind.

      2007). A trial court abuses its discretion if its 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.’”

      Anglemyer v. State, 868 N.E.2d 482, 490 (quoting K.S. v. State, 849 N.E.2d 538,

      544 (Ind. 2006)), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).


[9]   A trial court “may impose any sentence within the statutory range without

      regard to the existence of aggravating or mitigating factors.” Id. at 489.

      Court of Appeals of Indiana | Memorandum Decision 39A01-1701-CR-116 | May 25, 2017   Page 4 of 13
       However, the trial court may identify factors in mitigation and aggravation, and

       if it “‘finds’ the existence of ‘aggravating circumstances or mitigating

       circumstances’ then the trial court is required to give ‘a statement of the court’s

       reasons for selecting the sentence that it imposes.’” Id. at 490 (quoting I.C. §

       35-38-1-3(3)). Furthermore, the supreme court held in Anglemyer that “Indiana

       trial courts are required to enter sentencing statements whenever imposing

       sentence for a felony offense.” Id. Because sentencing statements historically

       “guarded against arbitrary and capricious sentencing” and “provided an

       adequate basis for appellate review,” the supreme court confirmed that such a

               statement must include a reasonably detailed recitation of the
               trial court’s reasons for imposing a particular sentence. If the
               recitation includes a finding of aggravating or mitigating
               circumstances, then the statement must identify all significant
               mitigating and aggravating circumstances and explain why each
               circumstance has been determined to be mitigating or
               aggravating.


       Id. at 489-90.


[10]   Upon appellate review, a trial court may be found to have abused its discretion

       by failing to enter a sentencing statement at all; entering a sentencing statement

       that explains its reasons for imposing a sentence where such reasons are not

       supported by the record or are improper as a matter of law; or entering a

       sentencing statement that omits reasons which are clearly supported by the

       record and advanced for consideration. Id. at 490-91. A trial court may not be

       said to have abused its discretion by failing to properly weigh aggravating and


       Court of Appeals of Indiana | Memorandum Decision 39A01-1701-CR-116 | May 25, 2017   Page 5 of 13
       mitigating factors. Id. at 491. If we find that the trial court has abused its

       discretion, our court will remand for resentencing “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.” Id.


[11]   Indiana Code section 35-50-2-6(b) provides that “[a] person who commits a

       Level 5 felony . . . shall be imprisoned for a fixed term of between one (1) and

       six (6) years, with the advisory sentence being three (3) years.” In the present

       case, the trial court imposed the advisory term for both Counts, to be served

       concurrently. Youngs challenges her sentence on two grounds: (1) that the trial

       court failed to set forth a recitation of its reasons for imposing the particular

       sentence, and (2) that the trial court failed to find mitigating circumstances that

       are clearly supported by the record and were advanced for consideration during

       the sentencing hearing. We address each issue in turn.


                                           A. Sentencing Statement

[12]   Youngs contends that neither the trial court’s oral sentencing statement nor its

       written sentencing order adequately explain the trial court’s rationale for

       ordering a three-year executed sentence. The trial court made no remarks

       concerning any finding of aggravating or mitigating circumstances during

       sentencing; rather, after announcing its decision to impose the advisory term on

       both Counts, the trial court simply addressed Youngs as follows:


               . . . I don’t want to send you to the [DOC] and just have you sit
               up there. I’m putting you into a program that’s very intensive
               and which I feel is designed to prevent this from ever happening

       Court of Appeals of Indiana | Memorandum Decision 39A01-1701-CR-116 | May 25, 2017   Page 6 of 13
               again. Now should you get up there, and if they do not place
               you in the program for any reason that’s not your fault, please let
               me know as soon as possible[.] I don’t want you just warehoused
               up there. If you can’t get into the program, I’m going to come
               back and take another look at your case. But that—now if you
               don’t get in the program because of your own fault, that’s not
               going to do you any good, but uh—I just feel that—I feel that
               you need some intensive treatment to make sure that this does
               not happen again and that you have a—a full and happy life, not
               one haunted by drug abuse.


       (Tr. p. 77). Youngs acknowledges that this statement “depicts reasoning for

       recommending the GRIP program but does not provide reasoning for the

       [c]ourt’s three[-]year sentence.” (Appellant’s Br. p. 11).


[13]   During the sentencing portion of the hearing, Young asked the trial court to

       impose “a three-year sentence on each count to run concurrently . . . and we’re

       requesting that be suspended to reporting probation with Community

       Corrections as an additional term.” (Tr. p. 68). As the State points out, the

       invited error doctrine precludes Youngs from challenging the term of her

       sentence on appeal based on the fact that she specifically requested the term

       imposed. See Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005) (“[A] party may

       not take advantage of an error that she commits, invites, or which is the natural

       consequence of her own neglect or misconduct.”). As to the method in which

       the trial court ordered Youngs to serve her sentence, we find that the trial

       court’s explanation more than adequately sets forth its reasoning for imposing

       an executed sentence rather than the suspended term Youngs requested. The

       evidence elicited during the sentencing hearing establishes that Youngs has a

       Court of Appeals of Indiana | Memorandum Decision 39A01-1701-CR-116 | May 25, 2017   Page 7 of 13
       history of methamphetamine abuse, and, despite a prolonged period of sobriety,

       she suffered a relapse that ultimately led to the current convictions. In its

       statement, the trial court indicated that it was not ordering Youngs

       commitment to the DOC simply for her to be “warehoused” there. (Tr. p. 77).

       Rather, the trial court made it abundantly clear that it imposed the executed

       sentence in order to ensure that Youngs could participate in an “intensive”

       substance abuse treatment program to prevent her from relapsing in the future.

       (Tr. p. 77). Upon Youngs’ successful completion of the recommended

       program, the trial court indicated its intent to modify her sentence to probation.


[14]   Furthermore, we note that in 2014 (i.e., seven years after Anglemyer was

       decided), the Indiana General Assembly amended Indiana Code section 35-38-

       1-1.3 such that it now stipulates that “[a]fter a court has pronounced a sentence

       for a felony conviction, the court shall issue a statement of the court’s reasons

       for selecting the sentence that it imposes unless the court imposes the advisory

       sentence for the felony.” (Emphasis added). 1 Based on the plain language of this

       statute, it is apparent that the trial court was not required to issue a sentencing

       statement after pronouncing sentence because it imposed the advisory term.

       Therefore, we cannot say that the trial court abused its discretion by failing to

       enter an adequate sentencing statement.




       1
         See Ind. P.L. 168-2014 § 54 (adding the clause “unless the court imposes the advisory sentence for the
       felony” to the existing statutory language that required a sentencing statement for felony convictions).

       Court of Appeals of Indiana | Memorandum Decision 39A01-1701-CR-116 | May 25, 2017               Page 8 of 13
                                         B. Mitigating Circumstances

[15]   Youngs next asserts that the trial court abused its discretion by failing to

       identify the multiple mitigating circumstances that she proffered for

       consideration during the sentencing hearing. “The finding of mitigating

       circumstances is not mandatory but is within the discretion of the trial court.”

       Sandleben v. State, 29 N.E.3d 126, 135 (Ind. Ct. App. 2015), trans. denied. A trial

       court is under no obligation “to accept the defendant’s argument as to what

       constitutes a mitigating factor”; nor is the trial court “required to give the same

       weight to a proffered mitigating factor as does the defendant.” Id. at 135-36. A

       defendant alleging “that the trial court failed to identify or find a mitigating

       factor” is required “to establish that the mitigating evidence is both significant

       and clearly supported by the record.” Id. at 136.


[16]   Indiana Code section 35-38-1-7.1(b) sets forth a non-exhaustive list of factors

       that the trial court may consider as mitigating circumstances in formulating an

       appropriate sentence. Accordingly, Youngs argued that the trial court should

       have taken into account that she “has little to no criminal history”; that she is

       likely to respond affirmatively to probation; that she “is a person of good

       character” and unlikely to reoffend; that she agreed to make restitution to the

       Jefferson County Sheriff’s Department for the money expended in conducting

       the controlled drug transactions; and that imprisonment will result in undue

       hardship to her two children, for whom she is the primary caregiver. See I.C. §

       35-38-1-7.1(b)(6)-(10); (Appellant’s Br. p. 11). Youngs also proffered that she

       saved the State time and resources by pleading guilty. The trial court did not


       Court of Appeals of Indiana | Memorandum Decision 39A01-1701-CR-116 | May 25, 2017   Page 9 of 13
       mention the mitigating circumstances tendered by Young in rendering its

       sentence. According to Youngs, based on these factors, she “should have

       received a mitigated sentence, a partially suspended sentence, or a fully

       suspended sentence.” (Appellant’s Br. p. 12).


[17]   Notwithstanding whether there is significant and clearly supported mitigating

       evidence such that the trial court abused its discretion by failing to take the

       proffered mitigating factors into consideration, we decline to remand for

       resentencing. Here, the trial court imposed the advisory term of years requested

       by Youngs and was adamant that Youngs receive substance abuse treatment

       through the GRIP Therapeutic Community Program. Subsequent to her

       completion of treatment, the trial court advised Youngs to apply for a sentence

       modification, through which the trial court would suspend Young’s sentence as

       she originally requested. Thus, even if the trial court had explicitly accepted the

       tendered circumstances as mitigating, it clearly would have imposed the same

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


                                        II. Appropriateness of Sentence

[18]   Although the trial court imposed a sentence that is statutorily permissible,

       Youngs nevertheless asks our court to exercise its discretionary authority under

       Indiana Appellate Rule 7(B) “to revise her sentence as the [c]ourt deems

       proper.” (Appellant’s Br. p. 18). As we previously indicated, “‘sentencing is

       principally a discretionary function in which the trial court’s judgment should

       receive considerable deference.’” Parks v. State, 22 N.E.3d 552, 555 (Ind. 2014)

       (quoting Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008)). However, our

       Court of Appeals of Indiana | Memorandum Decision 39A01-1701-CR-116 | May 25, 2017   Page 10 of 13
       court may revise a sentence if, “after due consideration of the trial court’s

       decision, [we] find[] that the sentence is inappropriate in light of the nature of

       the offense and the character of the offender.” Ind. Appellate Rule 7(B).


[19]   Appellate Rule 7(B) provides for sentence review in an “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.” Cardwell, 895 N.E.2d at 1225. Ultimately,

       “whether we regard a sentence as appropriate at the end of the day turns on our

       sense of the culpability of the defendant, the severity of the crime, the damage

       done to others, and myriad other factors that come to light in a given case.” Id.

       at 1224. Our court focuses on “the length of the aggregate sentence and how it

       is to be served.” Id. Youngs bears the burden of persuading this court that her

       sentence is inappropriate. Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct. App.

       2014).


[20]   With respect to the nature of the offense, “the advisory sentence is the starting

       point [that] our legislature has selected as [an] appropriate sentence for the

       crime committed.” Richardson v. State, 906 N.E.2d 241, 247 (Ind. Ct. App.

       2009). Youngs was sentenced to the advisory term for both of her Level 5

       felonies, with the sentences to run concurrently. I.C. § 35-50-2-6(b). The

       record reveals nothing particularly noteworthy about Youngs’ offenses: on two

       separate occasions, she sold her prescription Hydrocodone pills to a

       confidential informant as a means of financing her methamphetamine

       addiction.

       Court of Appeals of Indiana | Memorandum Decision 39A01-1701-CR-116 | May 25, 2017   Page 11 of 13
[21]   Turning to the character of the offender, we agree with Youngs that she has

       numerous redeeming qualities. Her criminal history is minimal, with the pre-

       sentence investigation report indicating only a 2012 charge for Class A

       misdemeanor check deception, which was dismissed in conjunction with her

       current plea agreement. Youngs testified during the sentencing hearing that she

       first used methamphetamine at age seventeen and thereafter continued to use it

       “every once[]in[]a[]while.” (Tr. p. 47). After moving to Indiana in 2003,

       Youngs did not use methamphetamine for twelve years and appears to have

       largely led a law-abiding life during this period. Youngs has been married for

       more than fifteen years, and she and her husband are the parents of two

       teenagers. When Youngs relapsed in October of 2015, she was using

       methamphetamine about three times per week. Her husband testified during

       the sentencing hearing that she managed to keep her drug use hidden from him

       and their children up until she was arrested. Youngs is an involved parent and,

       as her employer described, is “very smart, and she’s got a great attitude, and she

       has the capacity to be a . . . top employee.” (Tr. p. 40).


[22]   Despite the unremarkable nature of the offenses and Youngs’ positive character,

       we cannot say that a revised sentence is warranted. Rather, we agree with the

       trial court’s measured action as it is responsive to Youngs’ criminal conduct and

       her apparent need for substance abuse treatment in a controlled setting.

       Although Youngs complied to an extent with the conditions of her pre-trial

       release, such as by obtaining employment and passing nearly all of her drug

       screens, she eventually stopped attending her appointments. Furthermore,


       Court of Appeals of Indiana | Memorandum Decision 39A01-1701-CR-116 | May 25, 2017   Page 12 of 13
       when an instant drug screen was positive for methamphetamine in August of

       2016, Youngs “panicked” and left the testing facility without providing a urine

       sample to confirm the oral drug test. (Tr. p. 54). 2 Taking into account that she

       relapsed after a substantial period of sobriety, in addition to her trouble

       complying with the pre-trial release conditions, it is clear that Youngs needs a

       treatment program that will hold her accountable and ensure that she eventually

       has “a full and happy life, not one haunted by drug abuse.” (Tr. p. 77).

       Accordingly, the trial court’s three-year sentence to the DOC, with the

       specification that the trial court will consider sentence modification to

       probation upon Youngs’ completion of the GRIP Therapeutic Community

       Program, is not inappropriate.


                                               CONCLUSION
[23]   Based on the foregoing, we conclude that the trial court acted within its

       discretion in sentencing Youngs, and her sentence is not inappropriate in light

       of the nature of the offenses and her character.


[24]   Affirmed.


[25]   Najam, J. and Bradford, J. concur




       2
         We do acknowledge that on one other occasion, Youngs had an oral drug screen that yielded a positive
       result for methamphetamine which was subsequently shown to be negative by the urine confirmation test.
       As the Pre-Trial Coordinator explained, the instant oral tests “are more sensitive to different things, and
       that’s why we send them to a lab to see if it’s medication or uh—what type of medication it could be. So
       the—the reason we send them to the lab is so we can have a breakdown of what is actually taken.” (Tr. p.
       21).

       Court of Appeals of Indiana | Memorandum Decision 39A01-1701-CR-116 | May 25, 2017               Page 13 of 13
