MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                     Jan 24 2018, 6:24 am
regarded as precedent or cited before any
court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald R. Shuler                                         Curtis T. Hill, Jr.
Barkes, Kolbus, Rife & Shuler, LLP                       Attorney General of Indiana
Goshen, Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Bonita M. Richardson,                                    January 24, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A05-1708-CR-1887
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Gretchen S. Lund,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause Nos.
                                                         20D04-1606-F6-701
                                                         20D04-1703-F6-331



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A05-1708-CR-1887 | January 24, 2018           Page 1 of 10
[1]   Bonita Richardson appeals the trial court’s order revoking her placement with

      Elkhart County Community Corrections (ECCC) and executing the balance of

      her sentence with the Indiana Department of Correction (DOC). She also

      appeals the sentence imposed by the trial court on her conviction for Level 6

      Felony Failure to Return to Lawful Detention, contending that the trial court

      failed to consider her mental health as a mitigating factor and that the sentence

      is inappropriate in light of the nature of the offense and her character. Finding

      no error and that the sentence is not inappropriate, we affirm.


                                                     Facts
[2]   On June 28, 2016, the State charged Richardson with Level 6 felony fraud

      following her unauthorized use of another person’s HSA card. Pursuant to a

      written plea agreement, on September 28, 2016, Richardson pleaded guilty as

      charged, and on December 7, 2016, the trial court sentenced Richardson to 910

      days, with 730 days executed to ECCC and a recommendation for work

      release, and the remaining 180 days suspended to probation.


[3]   Richardson received a pass to work the evening of January 19, 2017, but failed

      to return to ECCC the next day. On January 23, 2017, ECCC filed a violation

      notice with the trial court that requested that Richardson be revoked from

      community corrections and placed in jail or the DOC. On January 24, 2017,

      the trial court issued a warrant for Richardson’s arrest and on March 6, 2017,

      the State charged her with Level 6 felony failure to return to lawful detention.

      On April 5, 2017, the police arrested Richardson.


      Court of Appeals of Indiana | Memorandum Decision 20A05-1708-CR-1887 | January 24, 2018   Page 2 of 10
[4]   On June 28, 2017, the trial court held a combined hearing for Richardson’s

      work release violation and her new charge. Without the benefit of a plea

      agreement, Richardson admitted to violating the terms of her work release and

      pleaded guilty to Level 6 felony failure to return to lawful detention. At a

      combined sentencing hearing on August 2, 2017, Richardson testified that she

      left because she was having flashbacks of a prior suicide attempt and because

      she was not taking medications that help her regulate her behavior. However,

      she conceded that she did not inform work release about these problems: “I

      admit I went about it the wrong way . . . . I should have stayed and maybe

      talked to a caseworker, and told him I couldn’t deal with being there.” Tr. p.

      19.


[5]   For the work release violation, the trial court revoked Richardson’s placement

      with ECCC and executed the balance of her 910-day sentence with the DOC.

      For the failure to return conviction, the trial court found several aggravating

      and mitigating factors and concluded that the aggravating factors outweighed

      the mitigating factors. Because of the considerable balance of her previous

      sentence, the trial court sentenced Richardson to the advisory term of one year,

      to be served consecutively to the previous sentence, and ordered the DOC to

      conduct a mental health assessment to address her needs while in custody.

      Richardson now appeals.




      Court of Appeals of Indiana | Memorandum Decision 20A05-1708-CR-1887 | January 24, 2018   Page 3 of 10
                                   Discussion and Decision
                                I. Placement with the DOC
[6]   First, Richardson argues that the trial court erred when it revoked her

      placement with ECCC and executed the balance of her first sentence to the

      DOC. If a defendant violates the terms of her community corrections

      placement, the community corrections director may, among other things,

      request that the trial court revoke the placement and commit the defendant to

      the DOC. Ind. Code § 35-38-2.6-5. Trial courts have broad discretion to place

      defendants in community corrections programs as alternatives to the DOC.

      Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct. App. 2009). We treat a petition

      to revoke placement in community corrections the same as a petition to revoke

      probation, meaning we will not reverse the trial court’s decision unless it is

      clearly against the logic and effects of the facts and circumstances. McCauley v.

      State, 22 N.E.3d 743, 747 (Ind. Ct. App. 2014).


[7]   It is undisputed that the trial court had the authority to revoke Richardson’s

      placement: she admittedly violated the terms of her work release and,

      following her disappearance, ECCC filed a notice of violation with the court

      requesting that she be revoked and moved to jail or the DOC. Richardson

      contends that the trial court erred because it chose the most severe option

      available despite her admission to the violation and her openness in discussing

      her mental health issues.




      Court of Appeals of Indiana | Memorandum Decision 20A05-1708-CR-1887 | January 24, 2018   Page 4 of 10
[8]   While we commend Richardson’s candor, we find that the trial court did not

      err. Instead of taking advantage of an opportunity at leniency, Richardson ran

      away from work release and disappeared for two months. Moreover, this is not

      the first time she has squandered such an opportunity—during her last

      placement with work release in 2014, she amassed nineteen rule violations,

      including five major violations, and was discharged unsatisfactorily. Even

      assuming her mental health played some role in the violation, she did not

      attempt to inform her caseworker or the trial court about her problems so that

      they could be addressed. In sum, the trial court was entitled to revoke

      Richardson’s placement with ECCC and, considering her history and behavior

      while with ECCC, we cannot say the trial court’s decision to place her in the

      DOC was against the logic and effect of the facts and circumstances.


                                      II. Mitigating Factor
[9]   Next, Richardson argues that the trial court erred by failing to find her history

      of mental health issues as a mitigating factor. Sentencing decisions rest within

      the sound discretion of the trial court and we will reverse only if the decision is

      clearly against the logic and effect of the facts and circumstances. Anglemyer v.

      State, 868 N.E.2d 482, 490-91 (Ind. 2007). A trial court may err by finding

      aggravating or mitigating factors that are not supported by the record, by

      omitting factors that are clearly supported by the record and advanced for

      consideration, or by finding factors that are improper as a matter of law. Id.

      “An allegation that the trial court failed to identify or find a mitigating factor



      Court of Appeals of Indiana | Memorandum Decision 20A05-1708-CR-1887 | January 24, 2018   Page 5 of 10
       requires the defendant to establish that the mitigating evidence is both

       significant and clearly supported by the record.” Id. at 493.


[10]   During the sentencing hearing, Richardson repeatedly brought up her mental

       health but the trial court did not expressly address it at the hearing or in its

       order when considering aggravating and mitigating factors. She argues that

       because there is evidence of her mental health history, the trial court erred by

       failing to consider it.


[11]   A trial court need not always give mental illness mitigating weight. Ousley v.

       State, 807 N.E.2d 758, 762 (Ind. Ct. App. 2004). Indeed, this court noted that

       when considering weight to give to the evidence of a defendant’s mental illness,

       a court should consider four factors:


               (1) the extent of the defendant’s inability to control his or her
               behavior due to the disorder or impairment; (2) overall
               limitations on functioning; (3) the duration of the mental illness;
               and (4) the extent of any nexus between the disorder or
               impairment and the commission of the crime.


       Id. Moreover, we added that “in the cases in which our Supreme Court has

       said that a defendant is entitled to mitigating weight based upon a mental

       illness, the evidence of the illness was so pervasive throughout the proceedings

       that the defendant was found to be guilty but mentally ill.” Id. Therefore, a

       trial court need not assign mitigating weight to mental illness any time it is

       implicated; instead, it is a factor that must be found only in certain limited

       situations. Id.


       Court of Appeals of Indiana | Memorandum Decision 20A05-1708-CR-1887 | January 24, 2018   Page 6 of 10
[12]   Here, the only evidence that Richardson was suffering from longstanding

       mental health issues was her own testimony, her trial counsel’s arguments that

       she has done better on home detention, and the presentence investigation

       report, which stated that Richardson self-reported, among other things, that she

       had been diagnosed with bipolar disorder and severe depression at age fifteen,

       that she had numerous previous suicide attempts, and that she took prescribed

       medications.1 With respect to the factors above, besides her claims that

       medication kept her from hearing voices and “do[ing] bad things,” tr. p. 19, and

       that her flashbacks were “traumatic,” id. at 15, the evidence provides no details

       regarding her ability to control her behavior, the overall limitations to her

       functioning, or the extent of any nexus between these problems and her

       commission of the offense. Considering this limited evidence, the trial court

       did not err by failing to assign mitigating weight to her mental history.


                                           III. Appropriateness
[13]   Finally, Richardson contends that the length and location of the sentence

       imposed by the trial court are inappropriate in light of the nature of the offense

       and her character.2 Indiana Appellate Rule 7(B) provides that this Court may




       1
         The record reveals that she was being housed in the DOC’s medical unit during her sentencing hearing,
       participating through video, and her criminal history provides that she was at a mental health facility in
       Illinois from November 2002 – January 2003, but the record is devoid of details.
       2
         As the State correctly observes, “a trial court’s action in a post-sentence probation violation proceeding is
       not a criminal sentence as contemplated by Rule 7(B) and, thus, the rule is inapplicable.” Milliner v. State,
       890 N.E.2d 789, 793 (Ind. Ct. App. 2008). As such, we will not consider the imposition of the remainder of
       the 910-day term for Richardson’s violation of the conditions of her work release; we will consider only the
       one-year sentence for Richardson’s conviction for failure to return to lawful detention.

       Court of Appeals of Indiana | Memorandum Decision 20A05-1708-CR-1887 | January 24, 2018             Page 7 of 10
       revise a sentence if it is inappropriate in light of the nature of the offense and the

       character of the offender. We must “conduct [this] review with substantial

       deference and give ‘due consideration’ to the trial court’s decision—since the

       ‘principal role of [our] review is to attempt to leaven the outliers,’ and not to

       achieve a perceived ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274,

       1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013))

       (internal citations omitted). Additionally, we may consider the place that the

       sentence is to be served under our review and revise authority. Biddinger v.

       State, 868 N.E.2d 407, 414 (Ind. 2007).


[14]   Richardson was convicted of Level 6 felony failure to return to lawful

       detention, for which she faced a sentence of six months to two and one-half

       years, with an advisory term of one year. Ind. Code § 35-50-2-7(b). The trial

       court sentenced her to a fully-executed, one-year term, to be served

       consecutively with the balance of her 910-day term in the DOC.


[15]   With respect to the nature of the offense, Richardson voluntarily left the work

       release program and, not only did she fail to report the next day, she absconded

       for more than two months. She argues that because she did not use weapons or

       violence or otherwise harm anyone that her offense was less egregious than the

       bare elements of the crime. However, the controlling statute already takes that

       into consideration. See I.C. § 35-44.1-3-4(c) (noting that failure to return is a

       Level 5 felony if, during its commission, “the person draws or uses a deadly

       weapon or inflicts bodily injury on another person”).



       Court of Appeals of Indiana | Memorandum Decision 20A05-1708-CR-1887 | January 24, 2018   Page 8 of 10
[16]   With respect to Richardson’s character, she pleaded guilty without the benefit

       of a plea agreement and she was open and honest with the trial court

       concerning her actions—both of which reflect positively on her character.

       Nevertheless, she has a considerable criminal history dating back to 1998

       including numerous convictions for forgery and other offenses in multiple

       states. Richardson also has a history of failing to comply with the terms of her

       work release. During her last placement in 2014, she amassed nineteen rule

       violations, including five major violations, and was also discharged

       unsatisfactorily.


[17]   Finally, with respect to the location of her sentence, Richardson contends that

       placement on home detention or a continuation of work release would be more

       appropriate because either would provide her “more appropriate options” to

       address her mental health and an opportunity to support her son. Appellant’s

       Br. p. 20. But as the trial court noted, alternative sentences have proved to be

       ineffective in reforming or deterring Richardson’s criminal behavior. Further,

       Richardson fails to explain why the DOC would be unable to address her

       mental health, especially considering that the trial court ordered the DOC to

       conduct a mental health assessment to ensure her mental health concerns are

       addressed while she is placed there.


[18]   In sum, while we commend Richardson for taking responsibility for her actions,

       in light of her substantial criminal history and her poor record on work release,

       we find that the one-year advisory sentence is not inappropriate in light of the

       nature of the offense and her character.

       Court of Appeals of Indiana | Memorandum Decision 20A05-1708-CR-1887 | January 24, 2018   Page 9 of 10
[19]   The judgment of the trial court is affirmed.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A05-1708-CR-1887 | January 24, 2018   Page 10 of 10
