MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                           Apr 15 2020, 5:36 am

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


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


                                           IN THE
    COURT OF APPEALS OF INDIANA

Christa A. Bays,                                         April 15, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2027
        v.                                               Appeal from the Ripley Superior
                                                         Court
State of Indiana,                                        The Honorable Jeffrey Sharp,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         69D01-1609-CM-261
                                                         69D01-1704-CM-109
                                                         69D01-1904-CM-146



Barnes, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2027 |April 15, 2020            Page 1 of 9
                                          Statement of the Case
[1]   Christa Bays appeals the sentence she received for her convictions of two counts
                                                               1
      of check deception, a Class A misdemeanor. In addition, Bays appeals the trial

      court’s imposition of her entire previously suspended sentences following her

      admission to violating the terms of her probation. We affirm.


                                                    Issues
[2]   Bays presents two issues for our review, which we restate as:


                 I.       Whether Bays’ one-year sentence for two counts of check
                          deception is inappropriate.


                 II.      Whether the trial court abused its discretion by ordering
                          her to serve her entire previously suspended sentences.


                                   Facts and Procedural History
[3]   In September 2016, Bays was charged with Class A misdemeanor check

      deception under cause number 69D01-1609-CM-261 (“CM-261”). In February

      2017, Bays pleaded guilty to the charge and received a suspended sentence of

      one year with one year of probation.


[4]   In April 2017, Bays was charged with Class A misdemeanor driving while

      suspended with a prior under cause number 69D01-1704-CM-109 (“CM-109”).




      1
          Ind. Code § 35-43-5-5 (2014).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2027 |April 15, 2020   Page 2 of 9
      In October 2017, Bays entered a plea of guilty to the charge and was sentenced

      to one year, suspended to one year of probation.


[5]   In September 2018, the State filed a petition for probation violation in both

      CM-261 and CM-109 based upon several new charges being filed against Bays.

      Bays later admitted to the violations, and the court revoked her probation and

      ordered her to serve her suspended sentences in both causes.


[6]   Finally, in April 2019, Bays was charged with two counts of Class A

      misdemeanor check deception under cause number 69D01-1904-CM-146 for

      writing checks to the local grocery store that were returned for insufficient

      funds. Bays pleaded guilty to both counts and received concurrent one-year

      sentences. Bays now appeals.


                                   Discussion and Decision
                                    I. Inappropriate Sentence
[7]   Bays first contends that her aggregate one-year sentence for her conviction of

      two counts of Class A misdemeanor check deception in CM-146 is

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


[8]   Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized

      by statute if, after due consideration of the trial court’s decision, we determine

      that the sentence is inappropriate in light of the nature of the offense and the

      character of the offender. Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App.

      2014). However, “we must and should exercise deference to a trial court’s


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2027 |April 15, 2020   Page 3 of 9
       sentencing decision, both because Rule 7(B) requires us to give ‘due

       consideration’ to that decision and because we understand and recognize the

       unique perspective a trial court brings to its sentencing decisions.” Stewart v.

       State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). Such deference to the trial

       court’s judgment should prevail unless overcome by compelling evidence

       portraying in a positive light the nature of the offense (such as accompanied by

       restraint, regard, and lack of brutality) and the defendant’s character (such as

       substantial virtuous traits or persistent examples of good character). Stephenson

       v. State, 29 N.E.3d 111, 122 (Ind. 2015). Thus, the question under Appellate

       Rule 7(B) is not whether another sentence is more appropriate; rather, the

       question is whether the sentence imposed is inappropriate. King v. State, 894

       N.E.2d 265, 268 (Ind. Ct. App. 2008). The defendant bears the burden of

       persuading the appellate court that his or her sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[9]    To assess whether a sentence is inappropriate, we look first to the statutory

       range established for the class of the offenses. Here, Bays was convicted of two

       Class A misdemeanors, for which each sentence may not exceed one year. Ind.

       Code § 35-50-3-2 (1977). The court sentenced Bays to one year on each of the

       counts and ordered them to be served concurrently.


[10]   Next, we look to the nature of the offenses. On August 5, 2018, Bays wrote a

       check to the Sunman IGA grocery store in the amount of $207.45, and, on

       August 19, 2018, she wrote another check to the same store in the amount of

       $167.13. Both checks were returned for insufficient funds.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2027 |April 15, 2020   Page 4 of 9
[11]   With regard to the character of the offender, the trial court observed that Bays’

       criminal history is “atrocious.” Tr. Vol. 2, p. 25. Even a minor criminal history

       is a poor reflection of a defendant’s character. Moss v. State, 13 N.E.3d 440, 448

       (Ind. Ct. App. 2014), trans. denied. Yet, Bays’ history is not minor. The State

       informed the court that Bays’ record includes check deception in 1998; check

       deception and fraud on a financial institution in 1999; C felony fraud on a

       financial institution in 2000; driving while suspended in 2006; felony forgery in

       2007; check deception and driving while suspended in 2012; driving while

       suspended in 2013; theft and check deception in 2016; driving while suspended,

       check deception, and compulsory school attendance violation in 2017; and

       theft, check deception, and Level 5 felony burglary in 2018. The trial court

       declared to Bays that her criminal history “might be one of the top ten in this

       Court.” Id. at 22. Moreover, at the time of sentencing, Bays had pending

       charges of three counts of driving while suspended, felony burglary, felony

       theft, and felony possession of methamphetamine.


[12]   In addition, in determining a defendant’s sentence, the court may consider as

       an aggravating circumstance the fact that the defendant recently violated

       conditions of probation. Ind. Code § 35-38-1-7.1(a)(6) (2015). A defendant’s

       commission of offenses while on probation is a “substantial consideration” in

       the assessment of her character. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App.

       2008), trans. denied. Accordingly, the trial court took into consideration that

       Bays has violated her probation numerous times and had petitions to revoke

       pending in CM-261 and CM-109.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2027 |April 15, 2020   Page 5 of 9
[13]   Bays claims that her criminal behavior is due to her substance abuse problem,

       and at sentencing she requested to enter a substance abuse program in lieu of

       imprisonment. In response to her claims and request, the court stated:


               I mean, at some point Ms. Bays, I have to look at individuals
               who commit crimes because they are on drugs and then I have to
               look at individuals who have criminal thinking who migrate to
               drugs as well. Do you understand? There is a difference between
               the two and your criminal history leads me to believe that you
               have criminal thinking and that is what has led you to drugs, not
               the other way around because that history goes back a long way
               and that history is ch[ock] full of deceit, so that is why I am a
               little leery to believe anything you say here today because when
               I’m talking about Check Deception, after Check Deception, after
               Check Deception, Thefts, after Thefts, after Theft.


               I’m not putting you in that program, not with that criminal
               history. Like I said, I believe that you are a high risk to re-
               offend. I believe that you have extremely high criminal thinking
               and a history full of fraud and deceit and that is not the type of
               person that needs to be in a program where I’m trying to get
               individuals clean[.]


       Tr. Vol. 2, pp. 23, 26.


[14]   The court noted the fact that Bays had pleaded guilty and stated her desire to

       change but stated those factors were diminished by her criminal history full of

       crimes of deceit as well as her commission of new offenses while on probation.

       In light of these circumstances, the trial court nevertheless sentenced her to the

       lenient aggregate sentence of one year. Bays has not met her burden of

       presenting compelling evidence portraying in a positive light the nature of the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2027 |April 15, 2020   Page 6 of 9
       offenses and her character in order to overcome the trial court’s sentencing

       decision.


                                      II. Sentencing Discretion
[15]   Next, Bays asserts that the trial court abused its discretion when, upon revoking

       her probation in CM-261 and CM-109, it ordered her to serve the entirety of her

       one-year suspended sentence in each cause.


[16]   A defendant is not entitled to serve a sentence on probation; rather, such

       placement is a matter of grace and a conditional liberty that is a favor, not a

       right. Davis v. State, 743 N.E.2d 793, 794 (Ind. Ct. App. 2001), trans denied.

       Further, probation is a criminal sanction for which a convicted defendant

       specifically agrees to accept conditions upon his behavior in lieu of

       imprisonment. Bratcher v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013),

       trans. denied. These restrictions are designed to ensure that probation serves as a

       period of genuine rehabilitation and that the public is not harmed by a

       probationer living within the community. Jones v. State, 838 N.E.2d 1146, 1148

       (Ind. Ct. App. 2005).


[17]   Indiana Code section 35-38-2-3(h) (2015) provides that if the court finds a

       violation of a condition of probation, it may: (1) continue the person on

       probation, with or without modifying the conditions; (2) extend the person’s

       probationary period for not more than one year; and/or (3) order execution of all

       or part of the sentence that was suspended at the time of initial sentencing. A trial

       court’s sentencing decisions for probation violations are reviewed for an abuse

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2027 |April 15, 2020     Page 7 of 9
       of discretion. Wilkerson v. State, 918 N.E.2d 458, 464 (Ind. Ct. App. 2009). An

       abuse of discretion occurs when the decision is clearly against the logic and

       effect of the facts and circumstances. Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

       2007).


[18]   The State’s petition, to which Bays admitted, states that she had previously

       violated her probation in CM-261 by committing new offenses and that the

       court had merely ordered her to continue her probation with the same

       conditions. It further alleges that she had violated her probation in both CM-

       261 and CM-109 by being charged with the new criminal offenses of

       compulsory school attendance violation, three counts of driving while

       suspended, misdemeanor theft, felony burglary, felony theft, and felony

       possession of methamphetamine.


[19]   Bays suggests she should not have been ordered to serve her entire suspended

       sentence because she admitted the violations and took responsibility for her

       actions. However, Bays did not take responsibility for her actions; rather, she

       blamed her criminal activity on her alleged drug problem. As we set out in the

       prior issue, the trial court did not accept this excuse.


[20]   Moreover, it is highly relevant that when Bays has been released to probation,

       she has continually violated the terms of her probationary placements. Her

       repeated refusal to comply with court-ordered terms of probation demonstrate

       that it is unlikely she would be able to successfully complete her probationary

       periods in these causes. Thus, we cannot say the trial court’s decision to order


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2027 |April 15, 2020   Page 8 of 9
       Bays to serve her entire previously suspended sentences of one year each is

       clearly against the logic and effect of the facts and circumstances of this case.


                                                Conclusion
[21]   Considering both the nature of the offenses and the character of the offender

       and giving due consideration to the trial court’s sentencing decision, we are

       unable to conclude that Bays’ aggregate one-year sentence in CM-146 is

       inappropriate. Furthermore, we conclude the trial court properly exercised its

       discretion in ordering Bays to serve the entirety of her previously suspended

       sentences upon revocation of her probation in CM-261 and CM-109.


[22]   Affirmed.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2027 |April 15, 2020   Page 9 of 9
