MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be
                                                                          Mar 20 2019, 9:01 am
regarded as precedent or cited before any
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
Patrick Magrath                                          Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana
                                                         Ian McLean
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kathy Hardesty,                                          March 20, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2727
        v.                                               Appeal from the Ripley
                                                         Superior Court
State of Indiana,                                        The Honorable Jeffrey L.
Appellee-Plaintiff.                                      Sharp, Judge
                                                         Trial Court Cause No.
                                                         69D01-1804-F6-100



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2727 | March 20, 2019                     Page 1 of 6
                                       Statement of the Case
[1]   Kathy Hardesty appeals her sentence following her conviction for dealing in

      methamphetamine, as a Level 5 felony, and her adjudication as a habitual

      offender pursuant to a guilty plea. Hardesty presents a single issue for our

      review, namely, whether her sentence is inappropriate in light of the nature of

      the offense and her character. We affirm.


                                 Facts and Procedural History
[2]   On April 5, 2018, Indiana State Police Trooper Jordan Craig and other officers

      conducted a knock and talk investigation at Hardesty’s house in Holton. Once

      Trooper Craig and the other officers were inside, they found nine adults,

      including Hardesty, and two small children. After Trooper Craig observed a

      burned marijuana cigarette in plain view, and after one of the adults was found

      to possess methamphetamine after consenting to a search of his person, Trooper

      Craig obtained and executed a search warrant for the residence. In the course

      of that search, officers found: a pipe used to smoke methamphetamine (found

      inside a diaper bag); five syringes (one on a couch, one in a laundry basket, and

      three in a backpack); a corner-cut baggie containing methamphetamine;

      Hardesty’s wallet, with $1000 in cash; and a ledger listing names and amounts

      owed for methamphetamine sales.


[3]   Hardesty agreed to talk to Trooper Craig, and she admitted that the cash found

      in her wallet was payment for a methamphetamine sale. Hardesty also told

      Trooper Craig that she had sold methamphetamine to “numerous people in


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2727 | March 20, 2019   Page 2 of 6
      Ripley [County] and Jennings County” and that “[s]he was dealing to people

      who dealt.” Tr. at 27. Hardesty stated that she sold approximately one ounce

      of methamphetamine per week.


[4]   The State charged Hardesty with dealing in methamphetamine, as a Level 5

      felony; maintaining a common nuisance, a Level 6 felony; possessing

      methamphetamine, as a Level 6 felony; and being a habitual offender.

      Hardesty pleaded guilty to dealing in methamphetamine, as a Level 5 felony,

      and to being a habitual offender. In exchange for her plea, the State dismissed

      the other charges. The trial court accepted the guilty plea, which left sentencing

      open to the trial court’s discretion. Following a hearing, the trial court

      sentenced Hardesty to six years for the Level 5 felony enhanced by six years for

      being a habitual offender, for an aggregate term of twelve years executed. This

      appeal ensued.


                                     Discussion and Decision
[5]   Hardesty contends that her sentence is inappropriate in light of the nature of the

      offense and her character. Indiana Appellate Rule 7(B) provides that “[t]he

      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.” This Court

      has recently held that “[t]he advisory sentence is the starting point the

      legislature has selected as an appropriate sentence for the crime committed.”

      Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana

      Supreme Court has explained that:
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2727 | March 20, 2019   Page 3 of 6
              The principal role of appellate review should be to attempt to
              leaven the outliers . . . but not achieve a perceived “correct”
              result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
              2008). Defendant has the burden to persuade us that the
              sentence imposed by the trial court is inappropriate. [Anglemyer,
              868 N.E.2d at 494].


      Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).


[6]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

      sentence to the circumstances presented, and the trial court’s judgment “should

      receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we

      regard a sentence as inappropriate at the end of the day turns on “our sense of

      the culpability of the defendant, the severity of the crime, the damage done to

      others, and myriad other facts that come to light in a given case.” Id. at 1224.

      The question is not whether another sentence is more appropriate, but rather

      whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

      268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] 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).


[7]   Indiana Code Section 35-50-2-6(b) states that a person convicted of a Level 5

      felony shall be imprisoned for a fixed term between one and six years, with an

      advisory sentence of three years. Indiana Code Section 35-50-2-8 states in

      relevant part that, where a person has been convicted of a Level 5 felony and

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2727 | March 20, 2019   Page 4 of 6
      found to be a habitual offender, the court shall sentence her to an additional

      fixed term that is between two years and six years. Here, the trial court

      identified as an aggravating circumstance Hardesty’s criminal history, including

      a 2006 conviction for dealing in methamphetamine, as a Class B felony;

      probation violations in 2009 and 2011; a 2015 conviction for possession of

      methamphetamine, as a Level 6 felony; and “a home detention violation in

      2017.” Appellant’s App. Vol. II at 89. The trial court also found aggravating:

      the presence of young children in the home; that Hardesty was “a major source

      of methamphetamine to Ripley County”; and her high risk to reoffend. Id. The

      trial court found two mitigating circumstances, namely, Hardesty’s cooperation

      with law enforcement officers and her guilty plea. The trial court found that the

      aggravators outweighed the mitigators and imposed the maximum aggregate

      sentence of twelve years.


[8]   Hardesty maintains that her sentence is inappropriate in light of the nature of

      the offense because “there is nothing in the nature of [the] crime that makes it

      above and beyond the nature of offense the legislature proscribed in the

      criminal statute.” Appellant’s Br. at 12. And she maintains that her sentence is

      inappropriate in light of her character because of her “significant work history,”

      her history of addiction, her cooperation with law enforcement, her acceptance

      of responsibility, and her remorse. Id.


[9]   We cannot say that Hardesty’s sentence is inappropriate in light of the nature of

      the offense or her character. Regarding the nature of the offense, Hardesty

      admitted that she had sold methamphetamine in the presence of her two very

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2727 | March 20, 2019   Page 5 of 6
       young grandchildren. With respect to her character, Hardesty admitted to

       selling methamphetamine for ten years, and this is her third methamphetamine-

       related felony conviction since 2006. Hardesty admitted that she had sold

       methamphetamine to other dealers, and Trooper Craig testified that Hardesty

       was “the source for a lot of mid-level drug dealers.” Appellant’s App. Vol. II at

       89. Hardesty has two previous probation violations, and she violated the terms

       of her home detention in 2017. Hardesty’s numerous encounters with law

       enforcement and the courts have done nothing to discourage her from criminal

       conduct. We cannot say that Hardesty’s twelve-year sentence is inappropriate

       in light of the nature of the offense and her character.


[10]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2727 | March 20, 2019   Page 6 of 6
