MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Oct 01 2018, 10:03 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher Sturgeon                                     Curtis T. Hill, Jr.
Clark County Public Defender’s Office                    Attorney General
Jeffersonville, Indiana
                                                         Andrew A. Kobe
                                                         Section Chief, Criminal Appeals
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ericka Jeanne Fouch,                                     October 1, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-907
        v.                                               Appeal from the Clark Circuit
                                                         Court
State of Indiana,                                        The Honorable Vicki L.
Appellee-Plaintiff                                       Carmichael, Judge
                                                         Trial Court Cause No.
                                                         10C04-1709-F1-06



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-907 | October 1, 2018                 Page 1 of 7
                                          Case Summary
[1]   Ericka Fouch appeals her sentence of eighteen years (with three of those years

      suspended to probation) for causing the deaths of her two young children while

      operating a vehicle with methamphetamine and marijuana in her blood. We

      affirm.



                            Facts and Procedural History
[2]   On the afternoon of June 28, 2017, Fouch drove an SUV into the path of an

      oncoming train in Henryville, causing a collision and the death of her two

      children, five-year-old Adalynn and four-year-old Wyatt. Immediately after the

      accident, Fouch “admitted to doing drugs within the past hour,” Appellant’s

      App. Vol. II p. 59, and subsequent testing revealed the presence of

      methamphetamine and marijuana in her blood.


[3]   In September 2017, the State charged Fouch with two counts of neglect of a

      dependent resulting in death, a Level 1 felony; two counts of causing the death

      of another person when operating a vehicle with a controlled substance listed in

      schedule I or II of Indiana Code chapter 35-48-2 or its metabolite in her blood,

      a Level 4 felony; and one count of driving while suspended, a Class A

      infraction. A few months later, Fouch and the State agreed that the neglect

      charges would be dismissed and that Fouch would plead guilty to the other

      three charges, leaving sentencing to the discretion of the trial court.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-907 | October 1, 2018   Page 2 of 7
[4]   In sentencing Fouch, the trial court found the following aggravating factors: (1)

      Fouch’s criminal history; (2) the age of the victims; (3) Fouch was in a position

      of “having care and custody of those victims”; and (4) “this tragedy very well

      could have been avoided had [Fouch] continued or sought treatment prior to

      this incident occurring.” Tr. p. 36. The court found as mitigating factors that

      Fouch “took responsibility and took responsibility early in this case” and that

      “incarceration of the defendant would cause an undue hardship to her family

      members, specifically her grandparents who she has been caring for since she

      has been on pre-trial release.” Id. Finding that the aggravators outweigh the

      mitigators, the trial court imposed consecutive nine-year sentences for the two

      operating counts, with three years suspended to probation on one of the counts,

      for a total sentence of eighteen years—fifteen years to serve with the

      Department of Correction and three years suspended to probation. (The court

      also imposed a $500 fine for driving while suspended.)


[5]   Fouch now appeals her sentence.



                                 Discussion and Decision
[6]   Fouch challenges the trial court’s finding of aggravators and mitigators and

      argues that her sentence is inappropriate.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-907 | October 1, 2018   Page 3 of 7
                               I. Aggravators and Mitigators
[7]   Our trial courts enjoy broad discretion in identifying aggravating and mitigating

      factors, and we will reverse only for an abuse of that discretion. Coy v. State,

      999 N.E.2d 937, 946 (Ind. Ct. App. 2013).


[8]   Fouch first argues that the trial court abused its discretion by finding her

      criminal history to be an aggravating circumstance. We disagree. The pre-

      sentence investigation report indicates that Fouch had two prior felony

      convictions (receiving stolen property and theft) and three prior misdemeanor

      convictions (acquiring a controlled substance by fraud, theft, and conversion).

      The felony and controlled-substance convictions came more than seven years

      before the offenses in this case, but that is not such a long period of time that

      the trial court was required to disregard them. To the extent Fouch challenges

      the weight the trial court gave to the criminal-history aggravator, that is not a

      matter we can review. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007),

      clarified on reh’g, 875 N.E.2d 218 (Ind. 2007); see also Gellenbeck v. State, 918

      N.E.2d 706, 712 (Ind. Ct. App. 2009).


[9]   We also reject Fouch’s argument that the trial court abused its discretion by

      failing to find three additional mitigating factors: that she “turned herself in,”

      that she “expressed extreme remorse,” and that “her risk expressed for

      reoffending is low.” Appellant’s Br. p. 10. We are confident that the first fact is

      covered by the trial court’s finding that she “took responsibility and took

      responsibility early in this case.” That finding also covers Fouch’s expression of


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-907 | October 1, 2018   Page 4 of 7
       remorse—at the sentencing hearing, when Fouch’s lawyer talked about her

       remorse, he did so as part of his argument that Fouch had taken responsibility

       for her actions. See Tr. pp. 28 (“I would ask the Court to assign a mitigating

       factor that [Fouch’s] taking responsibility for her actions, that she is repentant

       and contrite today.”), 29 (“[Fouch] is taking responsibility for her actions as

       much as she possibly can at this point, given all of the unfortunate tragic

       circumstances in this case. She is repentant, she is contrite and I would ask the

       Court to give significant weight to that.”). And we think the trial court acted

       well within its discretion when it declined to find that Fouch presents a low risk

       of reoffending. The court’s rejection of that mitigator was reasonable in light of

       Fouch’s criminal history, including a drug-related conviction, as well as the fact

       that she was given probation for most of her prior convictions and failed to take

       advantage of those previous opportunities for rehabilitation, as evidenced by

       her continued use of illegal drugs all the way up until the accident.


                                   II. Inappropriate Sentence
[10]   Fouch also argues that her sentence is inappropriate and asks us to revise it

       pursuant to Indiana Appellate Rule 7(B), which provides that an appellate court

       “may revise a sentence authorized by statute if, after due consideration of the

       trial court’s decision, the Court finds that the sentence is inappropriate in light

       of the nature of the offense and the character of the offender.” “Whether a

       sentence is inappropriate ultimately turns on the culpability of the defendant,

       the severity of the crime, the damage done to others, and a myriad of other

       factors that come to light in a given case.” Thompson v. State, 5 N.E.3d 383, 391

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-907 | October 1, 2018   Page 5 of 7
       (Ind. Ct. App. 2014) (citing Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

       2008)). Because we generally defer to the judgment of trial courts in sentencing

       matters, defendants have the burden of persuading us that their sentences are

       inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind. Ct. App. 2016).


[11]   Initially, we note that in exchange for Fouch’s guilty plea on the two Level 4

       felony operating counts, the State agreed to drop the two Level 1 felony neglect

       counts. If Fouch had been convicted on the latter counts, she would have faced

       a sentence of up to forty years on each count. See Ind. Code § 35-50-2-4.

       Because of the State’s agreement to drop those charges, Fouch’s exposure

       dropped to twelve years on each operating count. See Ind. Code § 35-50-2-5.5.

       Her ultimate sentence was nine years on each count—halfway between the

       advisory sentence of six years and the maximum sentence of twelve years—

       with three years suspended on one of the counts, for a total of eighteen years

       with fifteen years to serve. The trial court also recommended Fouch for

       placement in the Purposeful Incarceration program, successful completion of

       which could lead to a sentence modification. See Marley v. State, 17 N.E.3d 335,

       338 n.1 (Ind. Ct. App. 2014), trans. denied.


[12]   In arguing that this sentence is inappropriate, Fouch seriously downplays the

       nature of her offenses. Not only did she have methamphetamine and marijuana

       in her blood—she admitted that she had done drugs shortly before the accident.

       Not only did she drive after doing drugs—she drove with a suspended license.

       And her victims were her two young children who were in her sole care and



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-907 | October 1, 2018   Page 6 of 7
       custody at the time of the crash—facts that Fouch makes no mention of in her

       brief.


[13]   As for Fouch’s character, she is by no means a “bad” person or a hardened

       criminal. There seems to be no dispute that she had a tough upbringing with

       little support from her parents and started using illegal drugs at a young age. As

       an adult, she has provided care for her grandfather with dementia. She turned

       herself in after being charged, and she pled guilty not long after being charged.

       But Fouch’s criminal history, while certainly not the worst we have seen, is still

       troubling, particularly the two felony convictions and the drug conviction. And

       the significance of her guilty plea is tempered by the fact that it came only after

       the State agreed to dismiss more serious charges.


[14]   Fouch has not convinced us that her sentence is inappropriate.


[15]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-907 | October 1, 2018   Page 7 of 7
