MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                              Jul 27 2015, 7:04 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Donald J. Frew                                            Gregory F. Zoeller
Fort Wayne, Indiana                                       Attorney General of Indiana

                                                          Chandra K. Hein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Bonnie Motsch,                                            July 27, 2015

Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          02A03-1412-CR-451
        v.                                                Appeal from the Allen Superior
                                                          Court
                                                          Cause No. 02D06-1401-FD-16;
State of Indiana,                                         02D06-1407-FD-721; 02D06-1405-
Appellee-Plaintiff.                                       CM-2130

                                                          The Honorable Frances C. Gull,
                                                          Judge
                                                          The Honorable Samuel Keirns,
                                                          Magistrate




Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-451 | July 27, 2015              Page 1 of 8
                                             Case Summary
[1]   Bonnie Motsch appeals her sentence of six years after pleading guilty to Class D

      felony theft, Class A misdemeanor possession of paraphernalia, Class A

      misdemeanor driving while suspended, and Class D felony possession of a

      controlled substance. We affirm.


                                                      Issue
[2]   Motsch raises one issue on appeal, which we restate as whether her sentence is

      inappropriate in light of the nature of the offenses committed and her character.


                                                     Facts
[3]   On December 29, 2013, a Walmart loss prevention officer reported a theft

      incident involving Motsch. Motsch had placed several goods in her purse and

      went beyond all points of sale without paying. When the loss prevention officer

      attempted to stop her, Motsch started to run away. During the pursuit, Motsch

      attempted to hide her purse under a car. The purse was recovered with the

      many stolen items inside. Motsch admitted to stealing the items with the

      intention to resell them. On January 3, 2014, the State charged Motsch with

      Class D felony theft under cause number 02D06-1401-FD-16 (“FD-16”).


[4]   While out on bond for the FD-16 offense, Motsch drove an uninsured vehicle

      with a suspended license. While operating the car illegally with other

      passengers inside, Motsch placed a hypodermic needle on the dashboard.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-451 | July 27, 2015   Page 2 of 8
      When pulled over by police officers, Motsch denied that any illegal substances

      were in the vehicle. After obtaining consent from the owner to search the

      vehicle, officers found Motsch’s hypodermic needle, which she admitted was

      hers and had been used to inject heroin a few days prior. On May 29, 2014,

      Motsch was charged with possession of paraphernalia and driving while

      suspended, both class A misdemeanors, along with two traffic infractions of

      operating a motor vehicle without financial responsibility and improper display

      of a license plate on a vehicle, under cause number 02D06-1405-CM-2130

      (“CM-2130”).


[5]   After Motsch failed to appear for a hearing, a warrant was issued for her arrest.

      On July 1, 2014, she was arrested and had a controlled substance in her

      possession. Motsch was charged with possession of a controlled substance, a

      class D felony, under cause number 02D06-1407-FD-721 (“FD-721”). She

      committed this offense while out on bond under both FD-16 and CM-2130. On

      July 21, 2014, Motsch entered into a plea agreement whereby she agreed to

      plead guilty to theft, possession of paraphernalia, driving while suspended, and

      possession of a controlled substance. The State dismissed the traffic infractions.


[6]   On November 20, 2014, under FD-16, Motsch was sentenced to two years and

      ordered to pay $103.11 in restitution. Under CM-2130, Motsch was sentenced

      concurrently to one year for possession of paraphernalia and one year for

      driving while suspended. Under FD-721, Motsch was sentenced to three years.

      The sentences will be served consecutively for an aggregate sentence of six

      years. Motsch now appeals.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-451 | July 27, 2015   Page 3 of 8
                                                   Analysis
[7]   We assess whether Motsch’s sentence is inappropriate under Indiana Appellate

      Rule 7(B) in light of her character and the nature of the offense. See Anglemyer

      v. State, 868 N.E.2d 482, 491 (Ind. 2007). Although Rule 7(B) does not require

      us to be “extremely” deferential to a trial court’s sentencing decision, we still

      must give due consideration to that decision. Rutherford v. State, 866 N.E.2d

      867, 873 (Ind. Ct. App. 2007). We also understand and recognize the unique

      perspective a trial court brings to its sentencing decisions. Id. “Additionally, a

      defendant bears the burden of persuading the appellate court that his or her

      sentence is inappropriate.” Id.


[8]   The principal role of Rule 7(B) 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.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

      2008). We “should focus on the forest—the aggregate sentence—rather than

      the trees—consecutive or concurrent, number of counts, or length of the

      sentence on any individual count.” Id. Whether a sentence is inappropriate

      ultimately turns on 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. When reviewing the appropriateness of a sentence

      under Rule 7(B), we may consider all aspects of the penal consequences

      imposed by the trial court in sentencing the defendant, including whether a



      Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-451 | July 27, 2015   Page 4 of 8
       portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,

       1025 (Ind. 2010).


[9]    Regarding the nature of the offenses, it is important to consider that Motsch

       committed several crimes within a short time period. We acknowledge that

       Motsch’s offenses were not particularly egregious or heinous; however, the

       various crimes were committed less than a year apart.


[10]   Motsch not only stole $100 worth of merchandise from Walmart, but the items

       she stole were too damaged to be returned to stock. Less than a month later,

       while out on bond for that offense, Motsch drove an uninsured vehicle with a

       suspended license. While operating the vehicle with other occupants inside,

       Motsch set a hypodermic needle on the dashboard. After being pulled over by

       police and questioned about contraband inside the car, Motsch did not inform

       officers about the hypodermic needle on the dashboard and told officers that the

       vehicle contained no contraband. Following this arrest, Motsch was ordered to

       report to a drug court program.


[11]   Twenty-one days after Motsch entered into the drug court program, Motsch

       tested positive for both morphine and alcohol use. Two days later, Motsch

       tested positive for drugs again. Less than a month after entering the program,

       Motsch skipped at least one drug screen and was subsequently terminated from

       the program. Motsch also twice failed to appear in court for a drug court

       program status hearing and warrants were issued for her arrest. When she was

       arrested, she had a controlled substance in her possession.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-451 | July 27, 2015   Page 5 of 8
[12]   Along with her contention about the nature of the offenses, Motsch claims that

       her sentence is inappropriate in light of her character. We acknowledge

       positive character traits such as Motsch accepting responsibility for her

       wrongdoings and being remorseful about her actions, as indicated by her

       pleading guilty. However, we see no “substantial virtuous traits or persistent

       examples of good character.” See Stephenson v. State, 29 N.E.3d 111, 122 (Ind.

       2015). These positive attributes cannot be evaluated in isolation without

       understanding the totality of Motsch’s character. Motsch argues she has a

       “sincere desire” to make the necessary changes to become a sober individual.

       Sentencing Tr. p. 9. She further contends that her “life is and has been entirely

       out of control . . . . ” Id. at p. 8. However, the courts have provided Motsch

       with ample opportunities to seek help in dealing with her drug addiction and to

       take control of her life.


[13]   Prior to her current offenses, Motsch had several incidents of involvement with

       the criminal justice system, which all seem to be drug related. In 2002, Motsch

       was charged with public intoxication. In 2003, Motsch was charged with

       resisting law enforcement. Less than a year later after being charged with

       resisting law enforcement, Motsch was charged with burglary, forgery, and

       identity deception along with a misdemeanor conviction for paraphernalia

       possession. In addition to the multiple charges Motsch has faced in the past,

       Motsch has participated in five different substance abuse programs. Motsch

       was unsatisfactorily discharged multiple times from various home detention

       and community corrections programs. Although Motsch does not have a


       Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-451 | July 27, 2015   Page 6 of 8
       juvenile record, she has clearly established a longstanding history as an adult

       criminal.


[14]   Motsch has failed to recognize defendants are “not entitled to serve a sentence

       in either probation or a community corrections program. Rather, placement in

       either is a ‘matter of grace’ and a ‘conditional liberty that is a favor, not a

       right.”’ Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999) (quoting Gilfillen v. State,

       582 N.E.2d 821, 824 (Ind. 1991)). Motsch is a repeat violator of probation,

       parole, home detention, and drug court programs. Despite the repeated efforts

       to rehabilitate Motsch through various drug programs and lenient sentences,

       Motsch continuously abused drugs and disobeyed the law.


[15]   It is clearly evident that the prior imposition of more lenient sentences and

       implementing drug programs for Motsch has not been an effective means of

       dealing with her drug addiction and repeated criminal history. Based on the

       discussed factors above, Motsch’s various offenses warrant her sentence.


[16]   This case is distinguishable from the recent case of Norris v. State, 27 N.E.3d

       333, (Ind. Ct. App. 2015), upon which Motsch relies. In Norris, our court held

       that a twenty-year sentence was inappropriate in light of nature of offense and

       defendant’s character. In Norris, the defendant had a minimal criminal history

       and had previously completed home detention and probation successfully. By

       contrast, as the state notes, “Motsch has continually violated the terms and

       conditions of probation, parole, home detention, and, most recently, the Drug

       Court Program.” Appellee’s Br. p. 6. The defendant in Norris committed one


       Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-451 | July 27, 2015   Page 7 of 8
       offense, whereas Motsch’s actions while out on bond alone were significantly

       more numerous. Given the nature of Motsch’s aggregate offenses and her poor

       character, we cannot say that the trial court’s sentence was inappropriate.


                                                 Conclusion
[17]   Motsch has not established that her sentence is inappropriate in light of the

       nature of the offenses or her character. We affirm.


[18]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-451 | July 27, 2015   Page 8 of 8
