MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Apr 23 2020, 9:21 am
court except for the purpose of establishing
                                                                              CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Christopher Sturgeon                                      Curtis T. Hill, Jr.
Jeffersonville, Indiana                                   Attorney General of Indiana
                                                          Samuel J. Dayton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Angela Thompson,                                          April 23, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2370
        v.                                                Appeal from the Clark Circuit
                                                          Court
State of Indiana,                                         The Honorable Kenneth Lynn
Appellee-Plaintiff.                                       Lopp, Judge Pro Tempore
                                                          Trial Court Cause No.
                                                          10C02-1702-F3-6



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2370 | April 23, 2020                    Page 1 of 9
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Angela Thompson (Thompson), appeals the trial court’s

      sentence following her guilty plea to criminal recklessness with a deadly

      weapon, a Level 6 felony, Ind. Code § 35-42-2-2; and possession of cocaine, a

      Level 3 felony, I.C. § 35-48-4-6.


[2]   We affirm.


                                                   ISSUES
[3]   Thompson presents two issues on appeal, which we restate as:


          (1) Whether the trial court abused its discretion in identifying the mitigating

              and aggravating circumstances; and

          (2) Whether Thompson’s sentence is inappropriate in light of her character

              and the nature of the offenses.


                      FACTS AND PROCEDURAL HISTORY
[4]   On January 28, 2017, Clarksville Police Department officers Randy Thomas

      (Officer Thomas) and Tyler Jackson were dispatched to a Best Inn motel in

      response to a phone call from a motel employee that a guest in room 128, later

      identified as Thompson, had pointed a firearm at motel staff. Upon arrival at

      the motel, the officers walked toward the motel staff standing in the laundry

      room located near room 136. When motel staff directed the officers’ attention

      to Thompson’s door, the officers observed Thompson “straddling the door” of

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2370 | April 23, 2020   Page 2 of 9
      room 128 while pointing a handgun toward them. (Appellant’s App. Vol. II, p.

      5). Officer Thomas immediately drew his weapon and the motel staff took

      cover in the laundry room. Thompson retreated into the motel room and

      slammed the door.


[5]   More officers arrived and nearby guest rooms were evacuated. When an officer

      contacted Thompson by telephone requesting her to leave the room, she

      responded, “I am not coming out of the room and I am not giving up the

      firearm, you all are going to have to come in here and get me.” (Appellant’s

      App. Vol. II, p. 5). After the SWAT team arrived and took control of the

      situation, Thompson exited the room unarmed and was taken into custody.


[6]   After entering the room, the SWAT team located a semi-automatic handgun

      with a loaded magazine in a nightstand drawer. In plain view, they located

      lines of a white powdery substance identified as cocaine. There was a plastic

      bag on the table, next to the lines, containing more cocaine. Additional cocaine

      was discovered in a plastic bag hidden in a pair of pajama pants.


[7]   On February 2, 2017, the State filed an Information, charging Thompson with

      criminal recklessness with a deadly weapon, a Level 6 felony; possession of

      cocaine, a Level 3 felony; and carrying a handgun without a license, a Class A

      misdemeanor. On February 21, 2018, Thompson was released on her own

      recognizance. As she failed to appear for a subsequent hearing, the trial court

      issued a warrant for her arrest on June 20, 2018. On May 13, 2019, Thompson

      pled guilty to Level 6 felony criminal recklessness with a deadly weapon and


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2370 | April 23, 2020   Page 3 of 9
      Level 3 felony possession of cocaine. On June 17, 2019, the trial court

      conducted a sentencing hearing and sentenced Thompson to one year for

      criminal recklessness suspended to probation and to nine years for possession of

      cocaine with four years suspended to probation, with sentences to run

      concurrently.


[8]   Thompson now appeals. Additional facts will be provided if necessary.


                              DISCUSSION AND DECISION
                               I. Mitigating and Aggravating Circumstances


[9]   Thompson contends that the trial court abused its discretion when it failed to

      identify certain mitigating factors and mentioned certain aggravating

      circumstances. So long as a sentence imposed by a trial court is within the

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

      discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g,

      875 N.E.2d 218 (Ind. 2007). An abuse of the trial court’s sentencing discretion

      occurs if its decision is clearly against the logic and effect of the facts and

      circumstances before the court, or the reasonable, probable, and actual

      deductions to be drawn therefrom. Id. A trial court abuses its discretion when

      it fails to enter a sentencing statement at all, its stated reasons for imposing

      sentence are not supported by the record, its sentencing statement omits reasons

      that are clearly supported by the record and advanced for consideration, or its

      reasons for imposing sentence are improper as a matter of law. Id. at 490-91.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2370 | April 23, 2020   Page 4 of 9
[10]   With respect to mitigating circumstances, Thompson asserts that the trial court

       failed to consider a defense witness’ testimony that she would respond

       affirmatively to probation or short-term imprisonment. However, a review of

       the sentencing transcript indicates that the trial court considered this factor, as

       the court expressly noted the “testimony of witnesses” prior to pronouncing

       sentence. (Transcript p. 19). Likewise, Thompson claims that the trial court

       failed to consider her post-traumatic stress disorder as a possible mitigating

       circumstance. Even though evidence of possible post-traumatic stress disorder

       was presented through the testimony of a defense witness and Thompson

       herself, the trial court is not obligated to “credit or weigh a possible mitigating

       circumstance as defendant suggests it should be credited or weighed.” Archer v.

       State, 689 N.E.2d 678, 684 (Ind. 1997).


[11]   Turning to the trial court’s identification of aggravators, Thompson challenges

       the trial court’s finding of her prior criminal history as an aggravating

       circumstance. Specifically, she maintains that “[t]he mere fact of a criminal

       record is not sufficient to aggravate a sentence. The trial court has to consider

       the weight of the individual defendant’s history” which is measured by the

       number of prior convictions, similarity, and their proximity to the instant

       offense. (Appellant’s Br. p. 10). A defendant’s criminal history is a valid

       aggravating factor. See I.C. § 35-38-1-7.1(a)(2). Thompson’s criminal history is

       extensive and includes 10 misdemeanors and one felony. In reviewing

       Thompson’s history, the trial court noted “a continued pattern here that just

       continues. Different types of cases, but some similar as to what is pending here.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2370 | April 23, 2020   Page 5 of 9
       . . .There are some other substance abuse cases and drug and alcohol abuse.”

       (Tr. p. 19). Accordingly, as the trial court considered the similarity and

       proximity of the charges in Thompson’s criminal history, the trial court did not

       abuse its discretion in finding her criminal record as a valid aggravator.


                                       II. Inappropriateness of Sentence

[12]   Thompson also requests that we independently review the appropriateness of

       her sentence. “Even when a trial court imposes a sentence within its discretion,

       the Indiana Constitution authorizes independent appellate review and revision

       of this sentencing decision.” Hoak v. State, 113 N.E.3d 1209, 1209 (Ind. 2019).

       Thus, we may alter a sentence if, after due consideration of the trial court’s

       decision, we find that the sentence is inappropriate in light of the nature of the

       offense and the character of the offender. Id. The principal role of such review

       is to attempt to leaven the outliers. Cardwell v. State, 895 N.E.2d 1219, 1225

       (Ind. 2008). The defendant bears the burden to persuade the reviewing court

       that the sentence imposed is inappropriate. Robinson v. State, 91 N.E.3d 574,

       577 (Ind. 2018).


[13]   In considering the appropriateness of a sentence, we recognize the advisory

       sentence is the starting point the Legislature selected as appropriate for the

       crime committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). As such, the

       maximum sentence for a Level 3 felony is sixteen years, with nine years being

       the advisory sentence. I.C. § 35-50-2-5(b). The maximum sentence for a Level

       6 felony is two-and-a-half years, with one year being the advisory sentence. I.C.

       § 35-50-2-7(b). Here, the trial court sentenced Thompson to one year for

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2370 | April 23, 2020   Page 6 of 9
       criminal recklessness suspended to probation and to nine years for possession of

       cocaine with four years suspended to probation.


[14]   With respect to the nature of the crime, we do not turn a blind eye to “facts of

       the incident that brought the defendant before” us or the “nature and

       circumstances of the crime as well as the manner in which the crime is

       committed.” Bethea v. State, 893 N.E.2d 1134, 1145 (Ind. 2013). The nature of

       the crime is particularly troublesome. Thompson was in a public place—a hotel

       hallway—brandishing a loaded handgun, frightening hotel employees, and

       threatening police officers. Not only did Thompson refuse to leave peacefully,

       the SWAT team had to be mobilized to place her under arrest. After she was in

       custody, officers located 16 grams of cocaine—60% more than the minimum

       amount that would support a Level 3 felony—with some of it poured into lines,

       ready for use.


[15]   Likewise, Thompson’s character does not warrant a downward revision of her

       sentence. A defendant’s willingness to continue committing crimes is relevant

       for analysis of her character under Appellate Rule 7(B). Garcia v. State, 47 N.E.

       3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied. Thompson’s criminal history

       is a lengthy one going back almost two decades. In 2001, Thompson was

       convicted for criminal trespass in the third degree. In 2002, Thompson was

       convicted for operating a motor vehicle under the influence of drugs or alcohol.

       In 2007, she was convicted for possession of a controlled substance in the third

       degree. Three years later, in 2010, Thompson was convicted for disorderly

       conduct in the first degree. That same year, she was convicted for operating a

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2370 | April 23, 2020   Page 7 of 9
       motor vehicle under the influence of drugs or alcohol. In 2014, she was

       convicted for harassment involving physical contact. Also in 2014, she incurred

       a conviction for disorderly conduct in the second degree, and terroristic

       threatening in the third degree. In 2018, she was convicted for theft, a Class A

       misdemeanor, and later that same year, she was convicted for possession of a

       narcotic drug, a Level 6 felony. Her sentences have ranged from executed time

       to suspended sentences; and after being released on her own recognizance in

       the present case, she committed a pretrial release violation by failing to appear

       for a hearing in this cause. Additionally, the trial court, while considering

       Thompson’s criminal record, reflected on the “escalation” shown in the

       progression of charges. (Tr. p. 20). Thompson’s PSI indicated that she is a

       moderate risk to reoffend, but she also rated as a high risk to reoffend on three

       out of the seven risk categories. As a result, Thompson is a poor candidate for

       probation or a suspended sentence. See Malenchik v. State, 928 N.E.2d 564, 575

       (Ind. 2010) (observing that courts may use risk assessment instruments in

       formulating a manner in which a sentence is to be served).


[16]   While Thompson’s mental health issues of bipolar disorder and post-traumatic

       stress disorder appeared to have existed for some time, she failed to

       demonstrate a nexus between her mental health and the offenses or that her

       mental health limited her ability to function. Although we are sympathetic for

       Thompson’s loss of her husband approximately one month before the instant

       offense, we also acknowledge that his death occurred during “a drug deal gone




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2370 | April 23, 2020   Page 8 of 9
       bad.” (Tr. p. 14). Thus, rather than being deterred from drugs and firearms,

       Thompson endangered others by possessing and using both.


[17]   Thompson also claims to have epilepsy, has taken college courses, maintained

       employment in the three years leading up to this cause, and has abstained from

       alcohol for several years. However, even taking these considerations into

       account, we cannot say that she possesses substantial virtuous traits or

       persistent examples of good character. See Phipps v. State, 90 N.E.3d 1190, 1199

       (Ind. 2018) (evidence that defendant suffered from bipolar disorder, achieved

       some college education and maintained a stable work history did not render

       sentence inappropriate where she had squandered prior chances at reform).

       Therefore, in light of the facts before us, we conclude that the trial court’s

       imposed sentence is not inappropriate.


                                             CONCLUSION
[18]   Based on the foregoing, we hold that the trial court properly identified the

       mitigators and aggravators and Thompson’s sentence is not inappropriate in

       light of the offense and her character.


[19]   Affirmed.


[20]   Mathias, J. and Tavitas, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2370 | April 23, 2020   Page 9 of 9
