MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any
court except for the purpose of establishing                       Jun 22 2017, 5:39 am

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
Stanley L. Campbell                                      Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana

                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lisa G. King,                                            June 22, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         90A02-1610-CR-2469
        v.                                               Appeal from the Wells Circuit
                                                         Court
State of Indiana,                                        The Honorable Kenton W.
Appellee-Plaintiff.                                      Kiracofe, Judge
                                                         Trial Court Cause No.
                                                         90C01-1602-F4-6



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2469 | June 22, 2017        Page 1 of 8
                                             Case Summary
[1]   Lisa King appeals her two-year sentence for one count of Level 6 felony

      possession of methamphetamine. We affirm.


                                                     Issues
[2]   The issues before us are:


              I.       whether the trial court abused its discretion in sentencing
                       King; and


              II.      whether her sentence is inappropriate.


                                                     Facts
[3]   On February 12, 2016, the State charged King with Level 4 felony dealing in

      methamphetamine, Level 5 felony possession of chemical reagents or

      precursors with intent to manufacture a controlled substance, Level 6 felony

      theft of a firearm, and Level 6 felony unlawful possession or use of a legend

      drug. The charges were based on the Bluffton Police Department’s discovery of

      methamphetamine precursors, stolen firearms, and prescription medication in a

      vehicle belonging to Daniel Zerbe, Sr. King was in a relationship with Zerbe,

      Sr. at the time and empty prescription bottles belonging to her also were found

      in the car. The bottles were found in a makeup bag, which also contained the

      prescription drug methylprednisolone; this drug did not have any prescription

      information with it. Additionally, there was information that King was seen in

      or near the car on February 1, 2016, along with Zerbe, Sr. and his son, Daniel


      Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2469 | June 22, 2017   Page 2 of 8
      Zerbe, Jr., and all three were reported by a neighbor to be engaged in suspicious

      behavior, such as shining flashlights in or around the car for about an hour.

      King was arrested and incarcerated on March 16, 2016, and never bonded out

      of jail.


[4]   On August 17, 2016, King agreed to plead guilty to a new charge, Level 6

      felony possession of methamphetamine, and the State dismissed the four

      original charges. The plea contained no sentencing limit. King informed the

      probation officer preparing the presentence investigation report that she had

      been contacted by Zerbe, Sr., through Facebook1 while she was in a drug

      treatment program in Tennessee and that he eventually convinced her to come

      to Indiana with him to help Zerbe, Jr., get into drug addiction treatment.

      Instead, by December 2015, Zerbe, Sr. was manufacturing methamphetamine,

      and King was using it daily.


[5]   On September 28, 2016, the trial court sentenced King to a term of two years

      executed. The court said it was giving King “some weight” for her guilty plea

      but that she had received a substantial benefit in the dismissal of the original

      four charges. Tr. Vol. II p. 34. It also found that her criminal history

      warranted an enhanced sentence. King now appeals.




      1
          King’s ex-husband is Zerbe, Sr.’s brother.


      Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2469 | June 22, 2017   Page 3 of 8
                                                  Analysis
                                           I. Abuse of Discretion

[6]   King first claims the trial court abused its discretion in sentencing her. An

      abuse of discretion in identifying or not identifying aggravators and mitigators

      occurs if it 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 (Ind. 2007) (quoting K.S.

      v. State, 849 N.E.2d 538, 544 (Ind. 2006)). Additionally, an abuse of discretion

      occurs if the record does not support the reasons given for imposing sentence,

      or the sentencing statement omits reasons that are clearly supported by the

      record and advanced for consideration, or the reasons given are improper as a

      matter of law. Id. at 490-91.


[7]   King argues that the trial court erred in discounting the mitigating weight of her

      guilty plea based on the State’s dismissal of the original four charges. However,

      the weight that the trial court decides to assign to an aggravator or mitigator is

      not subject to appellate review. Id. at 491. King cannot establish an abuse of

      discretion on this issue.


                                            II. Appropriateness

[8]   We now assess whether King’s sentence is inappropriate under Indiana

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

      Anglemyer, 868 N.E.2d at 491. Although Rule 7(B) does not require us to be

      “extremely” deferential to a trial court’s sentencing decision, we still must give


      Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2469 | June 22, 2017   Page 4 of 8
       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.


[9]    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

       portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,

       1025 (Ind. 2010).


[10]   The sentencing range for a Level 6 felony is six months to two-and-a-half years,

       with the advisory sentence being one year. See Ind. Code § 35-50-2-7(b). Thus,

       King’s sentence was at the upper level of the range. As to the nature of the

       offense, King admitted to possessing an unspecified amount of

       Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2469 | June 22, 2017   Page 5 of 8
       methamphetamine. She had been using the drug regularly for several months,

       and she has done so off and on for many years, having been in a rehabilitation

       program before this latest relapse. King’s admitted offense fits an unfortunate

       pattern often seen with this highly-addictive drug.


[11]   Regarding the character of the offender, the most substantial disagreement

       between the parties is the significance of her guilty plea as a reflection of good

       character. Courts at any level must carefully assess the mitigating weight of a

       guilty plea. Marlett v. State, 878 N.E.2d 860, 866 (Ind. Ct. App. 2007), trans.

       denied. “One factor to consider in determining such weight is whether the

       defendant substantially benefited from the plea because of the State’s dismissal

       of charges in exchange for the plea.” Id. However, we agree with King that the

       dismissal of charges does not automatically counteract the mitigating weight of

       a guilty plea where the record is unclear that the State actually could have

       garnered convictions on the dismissed charges. See id.


[12]   Ultimately, based on the limited record before us, it is unclear that the State

       could have obtained a conviction against King on any of the original charges it

       brought against her, with the possible exception of illegally possessing a legend

       drug (methylprednisolone), which is the same felony level as the crime to which

       she pled guilty. King’s plea did not contain a cap on her possible sentence.

       Thus, King delivered a substantial benefit to the State by pleading guilty and

       did not receive much in return. This is not a case in which King’s guilty plea

       appears merely to have been a “pragmatic decision.” Cf. Amalfitano v. State, 956

       N.E.2d 208, 212 (Ind. Ct. App. 2011), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2469 | June 22, 2017   Page 6 of 8
[13]   Still, we cannot conclude that King’s sentence is inappropriate. She has a

       criminal history in Tennessee consisting of a 1997 conviction for misdemeanor

       public intoxication and 2008 misdemeanor convictions for “simple possession,”

       possession of a drug without a prescription, and possession of paraphernalia.

       App. Vol. II p. 33. Thus, although King does not have a lengthy or particularly

       serious criminal history, what she does have is closely related to the current

       offense. King also admitted to frequent drug use in the months prior to the

       current offense, as well as off-and-on substance use for many years. We

       acknowledge the difficulties inherent with battling substance abuse. However,

       King has tried various punitive and non-punitive roads to rehabilitation, and in

       fact left her most recent rehabilitation attempt to move to Indiana and be with

       Zerbe, Sr. and began receiving a steady supply of methamphetamine from his

       manufacturing operation. King’s multiple prior attempts at rehabilitation, in

       and out of the justice system, have been unsuccessful. Furthermore, King has

       prior arrests for child neglect, domestic assault, resisting arrest, forgery, and

       theft; at the time of sentencing, she also was facing a pending charge in Ohio for

       tampering with evidence in a murder case involving Zerbe, Sr. Although not

       technically constituting a criminal history, a defendant’s history of arrests, as

       well as pending charges he or she is facing, may properly be considered when

       evaluating a defendant’s character for sentencing purposes. See Tunstill v. State,

       568 N.E.2d 539, 545 (Ind. 1991); Hape v. State, 903 N.E.2d 977, 1001 (Ind. Ct.

       App. 2009), trans. denied. In sum, even if we give full credit to King for pleading

       guilty, her criminal history, history of arrests, history of frequent drug usage



       Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2469 | June 22, 2017   Page 7 of 8
       that she has not been able to conquer, and pending charges lead us to conclude

       that an enhanced sentence of two years is not inappropriate.


                                                 Conclusion
[14]   King’s abuse of discretion sentencing argument is not viable, and her sentence

       of two years for Level 6 felony possession of methamphetamine is not

       inappropriate. We affirm.


[15]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2469 | June 22, 2017   Page 8 of 8
