MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                      Jan 11 2017, 6:27 am
this Memorandum Decision shall not be
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
Thomas C. Allen                                          Curtis T. Hill
Fort Wayne, Indiana                                      Attorney General of Indiana

                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Alisha M. King,                                          January 11, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1606-CR-1387
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D05-1504-F6-360
                                                         02D05-1408-F6-79



Barnes, Judge.


Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1387 | January 11, 2017        Page 1 of 8
                                             Case Summary
[1]   Alisha King appeals her aggregate four-year sentence for Level 6 felony

      possession of a synthetic drug or lookalike substance and Level 6 felony

      possession of paraphernalia. We affirm.


                                                      Issue
[2]   The sole issue before us is whether King’s sentence is inappropriate.


                                                     Facts
[3]   On December 10, 2014, the trial court sentenced King to two years suspended

      to probation following her guilty plea to one count of Level 6 felony possession

      of a synthetic drug or lookalike substance in cause number 02D05-1408-F6-79

      (“F6-79”). On February 20, 2015, the State filed a petition alleging King

      violated probation after she tested positive for cocaine. King admitted to

      violating probation by using illegal drugs twice. On February 23, 2015, the trial

      court placed King on HOPE probation.1 On March 3, 2015, the State filed a

      petition to revoke King’s placement on HOPE probation after she failed to

      report for a required meeting. King admitted to the allegation; the trial court

      ordered her to spend three days in jail and returned her to HOPE probation

      afterwards. On April 8, 2015, the State filed another petition to revoke King’s

      placement on HOPE probation based on allegations that she failed to report for




      1
       HOPE probation “is a one year intense probation supervision program” operated by Allen Superior Court.
      See www.allensuperiorcourt.us/hope-program (last visited December 12, 2016).

      Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1387 | January 11, 2017      Page 2 of 8
      a required meeting and take a scheduled urine screen. King later admitted to

      these violations.


[4]   On April 27, 2015, the State charged King with Level 6 felony possession of

      paraphernalia in cause number 02D05-1504-F6-360 (“F6-360”). This new

      charge was added as a further allegation in support of revoking King’s

      probation in cause number F6-79. On May 26, 2015, King pled guilty to this

      charge. On the same date, the trial court ordered King to participate in its drug

      court program under both cause numbers F6-79 and F6-360 and terminated her

      supervised probation in F6-79. The State agreed that if King successfully

      completed the drug court program, it would dismiss the F6-360 case and

      satisfactorily discharge her from probation in the F6-79 case.


[5]   On November 2, 2015, the State filed a petition to terminate King’s

      participation in the drug court program. The petition alleged that King tested

      positive for the use of cocaine and synthetic marijuana; that she voluntarily left

      a required transitional living program; that she missed a required urine

      screening; and that she missed a required court date. King admitted to these

      allegations. On December 2, 2015, the trial court revoked King’s participation

      in the drug court program and imposed a sentence of two years executed in

      cause number F6-79 and a sentence of two years executed in cause number F6-

      360, to be served consecutively.


[6]   King filed separate notices of appeal in both cases, which were later

      consolidated. On April 18, 2016, this court stayed consideration of the appeal


      Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1387 | January 11, 2017   Page 3 of 8
      and remanded for the trial court to consider whether the doctrine of

      amelioration should apply to King’s sentence under cause number F6-360 in

      light of the legislature’s reduction of that offense to a Class A misdemeanor,

      effective July 1, 2015. On remand, the trial court declined to alter King’s

      sentence. She now pursues this new, consolidated appeal from both cause

      numbers F6-79 and F6-360.


                                                  Analysis
[7]   King’s argument is that her aggregate four-year sentence is inappropriate under

      Indiana Appellate Rule 7(B) in light of her character and the nature of the

      offenses. As the State points out, however, King’s sentence under cause

      number F6-79 was the result of a probation revocation. Sentences following

      revocation of probation are reviewable only for an abuse of discretion and Rule

      7(B)’s inappropriateness standard is inapplicable. Prewitt v. State, 878 N.E.2d

      184, 187-88 (Ind. 2007). King fails to make a cogent argument that her

      probation revocation sentence under F6-79 was an abuse of discretion; as such,

      any claim of error with respect to that sentence is waived. See Foutch v. State, 53

      N.E.3d 577, 580 n.1 (Ind. Ct. App. 2016) (noting that party must make cogent

      argument regarding abuse of discretion in sentencing separate from

      inappropriateness analysis in order to preserve claim for appellate review).

      Additionally, under Indiana Code Section 35-50-1-2(e), King was required to

      serve her sentence for F6-360 consecutive to her sentence for F6-79, because she

      was arrested for F6-360 before she was discharged from probation, parole, or a

      term of imprisonment for F6-79. The trial court had no choice in the matter.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1387 | January 11, 2017   Page 4 of 8
      As such, the only issue properly before us in this appeal is whether King’s two-

      year sentence under cause number F6-360 is inappropriate.


[8]   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.


[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).



      Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1387 | January 11, 2017   Page 5 of 8
[10]   The sentencing range for a Level 6 felony is between six months and two-and-

       one-half years. Ind. Code § 35-50-2-7(b). King’s sentence was at the high end

       of this range but was not a maximum sentence. King makes no argument in

       this appeal that the doctrine of amelioration warranted a reduction of her

       sentence.


[11]   We concede there is no reason to think there is anything egregious about the

       nature of the offense here, possession of paraphernalia. We also recognize that

       King pled guilty to this offense, which reflects positively upon her character.

       See Lopez v. State, 869 N.E.2d 1254, 1259 (Ind. Ct. App. 2007), trans. denied.

       King also suggests that her remorse should have been a more significant factor

       in her sentencing than what the trial court gave it. However, this court cannot

       reassess the weight a trial court gives to any particular aggravator or mitigator,

       which would be outside the scope of inappropriateness review in any event.

       Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007). Furthermore, this court

       cannot second-guess a trial court’s determination of the extent of a defendant’s

       remorse, which is akin to a credibility determination. See Stout v. State, 834

       N.E.2d 707, 711 (Ind. Ct. App. 2005), trans. denied. Similarly, the trial court

       was not required to accept the testimony of a character witness for King at the

       sentencing hearing who stated that “the light bulb” had come on for her “in the

       last seventy-two (72) hours . . . .” Tr. p. 39.


[12]   On the other side of the scales regarding King’s character, she was twenty-one

       years old at the time of the current offense. She had a juvenile delinquency

       adjudication for what would be Class A misdemeanor possession of marijuana

       Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1387 | January 11, 2017   Page 6 of 8
       and adult misdemeanor convictions for operating a vehicle without ever

       receiving a license, possession of a synthetic drug or lookalike substance, and

       possession of paraphernalia. The two possession convictions formed the basis

       for King’s subsequent Level 6 felony convictions for possession of a synthetic or

       lookalike drug and possession of paraphernalia.


[13]   Most tellingly, after King’s conviction under cause number F6-79, she

       repeatedly violated her probation and took advantage of the trial court’s

       displays of leniency and attempts to treat her serious drug addictions in a

       progressive manner. The trial court bent over backwards to assist King in

       addressing her addiction problems by using a variety of methods short of

       incarceration, including ordinary supervised probation, intensive probation, and

       drug court. Unfortunately, those methods did not work. Although King has

       not yet engaged in crime against third parties, it was not inappropriate for the

       trial court to conclude that an extended period of incarceration was the only

       option left to attempt to cure King of her addictions before such crime did

       occur. As for King’s assertion that the trial court should have suspended part of

       her sentence so that she could obtain rehabilitative services after being released

       from incarceration, the trial court reasonably could have concluded that it was

       unnecessary to do so in light of all the services that already had been offered to

       King. In sum, we cannot say King’s sentence is inappropriate. See Littrell v.

       State, 15 N.E.3d 646, 652-53 (Ind. Ct. App. 2014) (holding enhanced sentence

       was not inappropriate in light of defendant’s criminal history and repeated

       failure to successfully complete drug treatment programs), trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1387 | January 11, 2017   Page 7 of 8
                                                 Conclusion
[14]   King’s two-year executed sentence for Level 6 felony possession of

       paraphernalia under cause number F6-360 is not inappropriate, and she has

       waived her argument with respect to the probation revocation sentence under

       cause number F6-79. We affirm.


[15]   Affirmed.


       Kirsch, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1387 | January 11, 2017   Page 8 of 8
