MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Aug 07 2018, 5:57 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
Sean C. Mullins                                          Curtis T. Hill, Jr.
Crown Point, Indiana                                     Attorney General of Indiana
                                                         George P. Sherman
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jessica Sue Pichon,                                      August 7, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-396
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Diane Ross
Appellee-Plaintiff.                                      Boswell, Judge
                                                         Trial Court Cause No.
                                                         45G03-1702-F3-11



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018                 Page 1 of 13
                                               Case Summary


[1]   Jessica Pichon pled guilty to two counts of resisting law enforcement, one as a

      Level 3 felony and one as a Level 5 felony. The trial court expressly found no

      mitigating or aggravating circumstances but then imposed enhanced,

      consecutive sentences totaling fifteen years in prison. Pichon appeals, raising

      two issues for our review: whether the trial court abused its discretion in

      sentencing her without issuing a sentencing statement explaining its reasoning,

      and whether the aggregate sentence is inappropriate in light of the nature of the

      offenses and her character.


[2]   We affirm.


                                       Facts & Procedural History


[3]   After consuming their supply of crack cocaine on February 15, 2017, Pichon

      and her boyfriend, Donnell Howard, drove to a grocery store in East Chicago

      that afternoon. Pichon went inside and loaded a cart with three cases of beer

      and then started to leave without paying. When confronted by a store

      employee, she grabbed one of the cases of beer and ran to her vehicle, where

      Howard was waiting. A police officer tried to stop her, but Pichon jumped into

      the passenger seat of the vehicle and told Howard to “Go, go, go!” Appendix

      Vol. 2 at 30. The officer held onto the open passenger door as Howard put the

      vehicle into reverse, nearly pinning the officer, and then drove forward at a high

      rate of speed. The officer was able to let go and avoid being run over.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018   Page 2 of 13
[4]   Another East Chicago police officer in a marked squad car with emergency

      lights activated followed and attempted to stop Pichon and Howard.

      Eventually, several Hammond police officers joined in the attempt to stop the

      vehicle and four to five police vehicles were in pursuit. Howard and Pichon

      continued at high rates of speed, made several abrupt turns, drove the wrong

      way on a one-way street, and jumped a median, nearly striking other vehicles

      and pedestrians. The vehicle pursuit came to an end after Pichon and

      Howard’s vehicle T-boned another vehicle in an intersection. Pichon then tried

      to flee on foot but was unsuccessful. The thirteen-year-old passenger in the

      other vehicle died as a result of the collision, and the driver, her grandmother,

      was critically injured.


[5]   The State charged Pichon with five counts of resisting law enforcement (a Level

      3 felony, a Level 5 felony, a Level 6 felony, and two Class A misdemeanors),

      one count of Level 5 felony reckless homicide, and one count of Class A

      misdemeanor theft. Pichon and the State entered into a plea agreement

      pursuant to which she would plead guilty to resisting law enforcement as a

      Level 3 felony and resisting law enforcement as a Level 5 felony, and the State

      would dismiss the remaining charges, as well as counts under a separate cause

      alleging failure to register as a sex offender, a Level 6 felony. The agreement

      left sentencing to the trial court, “including whether [the two counts] shall be

      run concurrent or consecutive to each other”. Id. at 27.


[6]   At the sentencing hearing on January 17, 2018, Pichon’s counsel noted that at

      the age of twelve Pichon had been adjudicated a delinquent in Illinois for felony

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018   Page 3 of 13
      criminal sexual abuse. She violated probation a number of times and spent

      much of the remainder of her childhood in a juvenile correctional facility.

      Counsel also noted that Pichon had attempted suicide on multiple occasions,

      and that she suffers from several mental health disorders. Further, Pichon’s

      parental rights to the three young children she shared with Howard had been

      terminated recently. Counsel asked the trial court to consider Pichon’s guilty

      plea, her remorsefulness, her mental health, and her culpability in relation to

      Howard’s. Counsel requested consideration as a Purposeful Incarceration

      offender so that Pichon could receive drug treatment while incarcerated.


[7]   The State emphasized the violent nature of the crash and that there were two

      victims – a child who died and her seriously injured grandmother. The State

      noted that Pichon’s biggest concern after being caught trying to flee on foot was

      the damage done to her own car. Relying on Pichon’s active role in the

      offenses, her criminal and juvenile history, and her poor record on probation,

      the State requested the trial court impose an aggregate fifteen-year sentence.


[8]   Pichon then spoke on her own behalf, taking responsibility for her actions and

      apologizing to the victims’ family for the pain and loss she had caused. The

      trial court acknowledged her “very heartfelt apology.” Id. at 41. After

      expressing hope that Pichon really intended to make a change, the trial court

      stated: “You’ve had a lot of opportunities and it’s so unfortunate that this had

      to be the thing that switched the light bulb for you, because it was just a

      horrible, horrible accident.” Id.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018   Page 4 of 13
[9]    Without mentioning mitigating or aggravating circumstances, the trial court

       then sentenced Pichon to ten years for the Level 3 felony and five years for the

       Level 5 felony, to be served consecutively for a total sentence of fifteen years.

       The trial court recommended the sentence be served in a Purposeful

       Incarceration therapeutic community and noted it would consider a

       modification of the sentence upon successful completion of the program. In its

       written sentencing order, the trial court indicated that it found no mitigating or

       aggravating circumstances. Pichon now appeals her sentence.


                                              Discussion & Decision


[10]   Pichon contends that the trial court abused its sentencing discretion by entering

       a sentencing statement devoid of reasoning for its imposition of enhanced

       sentences.1 We agree.


[11]   Ind. Code § 35-38-1-7.1(d) provides that a trial court may impose any sentence

       that is “authorized by statute; and permissible under the Constitution of the

       State of Indiana; regardless of the presence or absence of aggravating

       circumstances or mitigating circumstances.” Therefore, if a sentence is within

       the statutory range, it is subject to review only for an abuse of




       1
        Pichon does not challenge the consecutive nature of her sentences on appeal. Rather, she specifically
       argues that the trial court “issued an aggravated sentence of fifteen years, going above the twelve-year
       advisory” without providing “specific reasoning for imposing the aggravated sentence.” Appellant’s Brief at 8.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018                     Page 5 of 13
       discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on

       reh’g, 875 N.E.2d 218 (Ind. 2007).


[12]   A trial court may abuse its sentencing discretion by, among other things, failing

       to enter a sentencing statement or entering a statement that omits factors that

       are clearly supported by the record and advanced for consideration. Id. For an

       appellate court to carry out its function of reviewing the trial court’s exercise of

       sentencing discretion, the appellate court must be advised of the reasons for the

       imposition of the sentence, and this necessarily requires a statement of facts

       “which are peculiar to the particular defendant and the crime, as opposed to

       general impressions or conclusions.” Jackson v. State, 45 N.E.3d 1249, 1251

       (Ind. Ct. App. 2015) (quoting Anglemyer, 868 N.E.2d at 490). This is expressed

       in Ind. Code § 35-38-1-1.3, which requires a court pronouncing a sentence for a

       felony conviction to “issue a statement of the court’s reasons for selecting the

       sentence that it imposes unless the trial court imposes the advisory sentence for

       the felony.” When we review the sufficiency of a sentencing statement, we

       examine both the trial court’s oral and written statements. Gleason v. State, 965

       N.E.2d 702, 710 (Ind. Ct. App. 2012).


[13]   Here, the trial court’s oral sentencing statement touches, if at all, only obliquely

       on possible aggravating and mitigating circumstances and only in the most

       general terms. And the trial court’s written sentencing statement explicitly

       states the trial court found no aggravating and no mitigating circumstances.

       Although this would be acceptable if the trial court had imposed the advisory

       sentences for Pichon’s convictions, it did not do so. Pichon’s conviction for

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018   Page 6 of 13
       Level 3 felony resisting law enforcement carries a possible penalty of three to

       sixteen years, with an advisory sentence of nine years. Ind. Code § 35-50-2-

       5(b). The trial court sentenced Pichon to ten years for this offense. Her

       conviction for Level 5 felony resisting law enforcement carries a possible

       penalty of one to six years, with an advisory sentence of three years. I.C. § 35-

       50-2-6(b). The trial court imposed a sentence of five years for this offense.


[14]   Based on our review of the trial court’s written sentencing order and the

       transcript of the sentencing hearing, we conclude that the trial court did not

       issue a “reasonably detailed recitation” of its reasons for imposing the particular

       sentence and failed to address factors that were clearly supported by the record

       and advanced for consideration. Anglemyer, 868 N.E.2d at 490. Therefore, as

       the State appears to concede, the trial court abused its discretion.


[15]   When we encounter a trial court sentencing order that does not meet the

       requirements of the law, we have several options. Windhorst v. State, 868

       N.E.2d 504, 507 (Ind. 2007). We may remand to the trial court for a

       clarification or new sentencing determination; we may affirm the sentence if the

       error is harmless; or we may exercise our authority to review and revise the

       sentence. Brown v. State, 783 N.E.2d 1121, 1129 (Ind. 2003). We find the error

       harmless in this case because, as set out below, the sentences imposed were not

       inappropriate. See Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007)

       (“even if the trial court is found to have abused its discretion in the process it

       used to sentence the defendant, the error is harmless if the sentence imposed

       was not inappropriate”), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018   Page 7 of 13
[16]   In determining whether a sentence is inappropriate, we look to the nature of the

       offense and the character of the offender. See Ind. Appellate Rule 7(B). We

       may consider any factors appearing in the record when conducting this

       independent sentencing review. Holloway v. State, 950 N.E.2d 803, 806 (Ind. Ct.

       App. 2011). Further, whether we regard a sentence as inappropriate “turns on

       our sense of 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.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).


[17]   The nature of Pichon’s offenses was particularly egregious and senseless. A

       thirteen-year-old child was killed, her grandmother was seriously injured, a

       police officer was nearly run over, and countless others were put at risk because

       Pichon and her boyfriend together decided to lead police on a high-speed chase

       after stealing a case of beer.2 They did this while high on crack cocaine. After

       the crash, Pichon attempted to flee on foot, unconcerned about her two helpless

       victims. Pichon later pled guilty, but that appears to have been primarily a

       pragmatic decision given the strength of the evidence against her and the fact

       that the State dropped a number of charges and an entirely separate criminal

       cause involving failure to register as a sex offender.


[18]   Aside from her heartfelt apology at sentencing, Pichon’s character is not

       particularly mitigating. She has a significant juvenile history from the age of



       2
        We do not agree with Pichon’s assessment of her participation in the crimes. Although she was not the
       driver, her role was far from “passive” and “limited”. Appellant’s Reply Brief at 7.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018                 Page 8 of 13
       twelve to adulthood, a history of violating probation, and two prior

       misdemeanor convictions for conversion. She was on probation at the time she

       committed these crimes. Additionally, Pichon was an unemployed, daily

       crack-cocaine user, who had not seen her three young daughters since 2015 and

       had her parental rights terminated in 2017.


[19]   We conclude that the enhanced sentences are not inappropriate given the

       nature of Pichon’s offenses and her character. Further, the trial court’s

       imposition of consecutive sentences, which Pichon does not challenge, reflects

       well-established law that injury to multiple victims supports the imposition of

       consecutive sentences. See Lewis v. State, 31 N.E.3d 539, 543 (Ind. Ct. App.

       2015) (where sentencing order lacked specificity, remand was unnecessary

       “because the rationale for consecutive sentences is apparent on the face of the

       record”; “there were two victims”). Accordingly, we affirm the consecutive

       sentences of ten years for the Level 3 felony and five years for the Level 5

       felony, which were imposed by the trial court with a referral to the Purposeful

       Incarceration Program and a potential for sentence modification upon

       successful completion of the program.


[20]   Judgment affirmed.


       Najam, J., concurs.


       Robb, J., dissents with opinion.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018   Page 9 of 13
                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jessica Sue Pichon,                                      Court of Appeals Case No.
                                                               18A-CR-396
      Appellant-Defendant,

              v.

      State of Indiana,
      Appellee-Plaintiff,



      Robb, Judge, dissenting.


[1]   I respectfully dissent.


[2]   I agree with the majority that the trial court abused its discretion in failing to

      enter a sentencing order that supports the sentence it imposed. I cannot agree,

      however, that the error is harmless.


[3]   Despite acknowledging the shortcomings in the trial court’s sentencing

      statement, the majority nonetheless reviews the sentence imposed and

      determines it is not inappropriate because the nature of Pichon’s offenses was

      particularly egregious, the nature of her character is not particularly mitigating,

      and the imposition of consecutive sentences “reflects well-established law that

      injury to multiple victims supports the imposition of consecutive sentences.”

      Slip op. at ¶ 19. In conducting Appellate Rule 7(B) review of a sentence, we are

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018        Page 10 of 13
      to give “due consideration” to the trial court’s decision. We also assess the trial

      court’s recognition or nonrecognition of aggravators and mitigators as an initial

      guide to determining whether the sentence imposed was inappropriate. Gibson

      v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). We must therefore give due

      consideration to the fact that the trial court found no aggravators in this case.

      The trial court did not merely fail to address the aggravating circumstances –

      the trial court specifically stated, “Aggravating Circumstances: None.”

      Appendix of the Appellant, Volume Two at 76.


[4]   To order a consecutive sentence, “the trial court must find at least one

      aggravating circumstance, and consecutive sentences are improper when

      aggravators and mitigators are in equipoise.” Hoeppner v. State 918 N.E.2d 695,

      699 (Ind. Ct. App. 2009). Yes, multiple victims can support the imposition of

      consecutive sentences. But I have found no case that says multiple victims

      require consecutive sentences. And the mere fact that multiple victims are

      obvious on the face of the record does not overcome the trial court’s specific

      nonrecognition of that as an aggravating factor. A consecutive sentence clearly

      cannot stand on the findings made by the trial court and I do not believe we can

      unilaterally disregard the trial court’s findings in this regard, even on 7(B)

      review.


[5]   The majority cites Lewis v. State, 31 N.E.3d 539 (Ind. Ct. App. 2015), in support

      of the imposition of consecutive sentences here. In Lewis, the trial court

      imposed an above-advisory sentence for a count of felony battery and ordered it

      be served consecutively to a sentence for misdemeanor battery. The trial court’s

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018   Page 11 of 13
      written sentencing statement did not provide an explanation for the imposition

      of the enhanced sentence or the consecutive sentences. The trial court’s oral

      sentencing statement did mention the defendant’s extensive criminal history,

      however, with an emphasis on prior offenses similar to his current offenses.

      This court noted the trial court’s sentencing order lacked specificity as to the

      reason for imposing consecutive sentences, and despite noting a single

      aggravator—here, criminal history—may both enhance a sentence and support

      imposing consecutive sentences, the court determined the reason for

      consecutive sentences was “apparent on the face of the record” in that there

      were two victims. Id. at 543. Because the trial court in Lewis found—or at least

      discussed—an aggravating circumstance that could have alone supported the

      sentence imposed, Lewis is inapposite to this case and does not justify affirming

      consecutive sentences in this case.


[6]   Rather, I look to Marcum v. State, 725 N.E.2d 852 (Ind. 2000), in which the trial

      court specifically found the aggravating circumstance (a crime spree) and

      mitigating circumstance (the defendant’s youthful age) to be in balance but

      imposed consecutive sentences. The Indiana Supreme Court noted that to

      impose consecutive sentences, the trial court must find at least one aggravating

      circumstance and that one aggravating circumstance may be used to both

      enhance a sentence and justify consecutive sentences. Id. at 864. Although the

      defendant’s crimes were committed against multiple victims, the court stated

      that “because the trial court found the aggravating and mitigating circumstances

      to be in balance, there is no basis on which to impose consecutive terms.” Id.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018   Page 12 of 13
      Accordingly, the court remanded the case to the trial court with direction to

      impose concurrent sentences. Id.; see also Wentz v. State, 766 N.E.2d 351, 359

      (Ind. 2002) (holding imposition of consecutive sentences for murder, burglary,

      robbery, residential entry, and auto theft against at least five victims was

      inappropriate where the trial court twice stated the mitigating and aggravating

      factors were in balance and remanding for trial court to impose concurrent

      sentences). We presume the Supreme Court is well aware of Appellate Rule

      7(B) and harmless error standards and yet the court did not review the sentences

      in these cases for harmless error.


[7]   Therefore, I cannot agree the trial court’s error is harmless because the trial

      court could not impose the sentence it did on the findings it made. We cannot

      negate the error in an unlawful sentence by determining for ourselves the

      sentence is not inappropriate. Our supreme court’s position is clear: where the

      trial court does not find an aggravating circumstance that would justify

      imposition of consecutive sentences, consecutive sentences are inappropriate

      and the proper remedy is remand for the imposition of concurrent sentences.

      See Marcum, 725 N.E.2d at 864; Wentz, 766 N.E.2d at 359. Because Indiana

      Code section 35-38-1-7.1(d) allows a trial court to impose any sentence

      authorized by statute regardless of the presence or absence of aggravating or

      mitigating circumstances, and for the reasons discussed by the majority, I do

      not believe the above-advisory sentences are inappropriate. However, I would

      remand for the trial court to order the sentences be served concurrently, for a

      total sentence of nine years.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-396 | August 7, 2018   Page 13 of 13
