MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                       Mar 29 2018, 10:44 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
Jeremy K. Nix                                            Curtis T. Hill, Jr.
Huntington, Indiana                                      Attorney General of Indiana

                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Dinah Downey,                                            March 29, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         35A02-1710-CR-2257
        v.                                               Appeal from the Huntington
                                                         Superior Court
State of Indiana,                                        The Honorable Jennifer E.
Appellee-Plaintiff                                       Newton, Judge
                                                         Trial Court Cause No.
                                                         35D01-1610-F3-212



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 35A02-1710-CR-2257 | March 29, 2018           Page 1 of 7
[1]   Dinah Downey appeals her twelve-year sentence for Level 3 felony dealing in a

      narcotic drug 1 and Level 5 felony dealing in a schedule IV controlled

      substance. 2 She argues her sentence is inappropriate. We affirm.



                                Facts and Procedural History
[2]   On December 3, 2015, Downey sold oxycodone with acetaminophen to a

      Huntington City Police confidential informant. On December 4, 2015, she sold

      Tramadol to a Huntington City Police confidential informant. On October 19,

      2016, the State charged Downey with Level 3 felony dealing in a narcotic drug

      and Level 5 felony dealing in a schedule IV controlled substance. Downey was

      arrested on February 15, 2017.


[3]   Prior to the crimes, Downey was diagnosed with Wolff-Parkinson-White

      syndrome, which affects her heart. She was scheduled to have surgery on May

      5, 2017. The trial court released her from custody so she could have surgery,

      but it ordered her to contact community corrections to begin electronic

      monitoring.


[4]   On May 23, 2017, the State reported Downey had violated the terms of her

      electronic monitoring by allowing the device’s battery to die. The court warned

      Downey to not allow that to happen again or she would be subject to arrest.




      1
          Ind. Code § 35-48-4-1 (2014).
      2
          Ind. Code § 35-48-4-3 (2014).


      Court of Appeals of Indiana | Memorandum Decision 35A02-1710-CR-2257 | March 29, 2018   Page 2 of 7
[5]   On May 30, 2017, Downey pled guilty to both charges with an open plea

      agreement. The State had offered sentencing terms but Downey rejected that

      offer. The trial court set a sentencing hearing for December 19, 2017. In

      September 2017, Downey again violated the terms of electronic monitoring by

      testing positive for methamphetamine and having paraphernalia in her

      possession. Because of these violations, the court reset the sentencing hearing

      for September 19, 2017.


[6]   At sentencing, the trial court found Downey’s guilty plea was a mitigator but

      that it was outweighed by the aggravators of her criminal history and inability

      to comply with the terms of probation and pre-trial release. The trial court

      specifically noted:


              So, I’m going to note that you’ve recently violated the conditions
              of your pretrial release. Um, you not only did--according to
              Community Corrections on the pretrial release, I mean you
              tested positive for drugs, you had drug paraphernalia, um, this
              wasn’t just taking some pills. And this is a dealing charge, and
              would note your extensive criminal history. Yes, you have only
              one (l) prior felony, but you still have one (l) prior felony. But
              you have twenty-one (21) misdemeanors. Um, and seven (7)
              petition to revokes [sic]. You have an extensive criminal history.
              Um, you continue to use drugs while on pretrial release.


      (Tr. at 57.) Finding Downey was not “a candidate for [ ] probation,” (id.), the

      trial court sentenced her to twelve years for the Level 3 felony and four years for

      the Level 5 felony, to be served concurrently. The trial court did not suspend

      any of the sentence.


      Court of Appeals of Indiana | Memorandum Decision 35A02-1710-CR-2257 | March 29, 2018   Page 3 of 7
                                Discussion and Decision
[7]   Downey asserts her sentence is inappropriate. She argues that, because the

      substances were sold only to a confidential informant, the nature of the offense

      did not warrant a sentence higher than the advisory. Additionally, she argues

      the sentence is inappropriate for her character because her criminal history

      consisted mostly of misdemeanors that were not drug-related convictions.


[8]   Under Ind. Appellate Rule 7(B), we may revise a sentence if, after due

      consideration of the trial court’s decision, we find the sentence inappropriate in

      light of the nature of the offense and the character of the offender. Anglemyer v.

      State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (2007).

      We consider not only the aggravators and mitigators found by the trial court,

      but also any other factors appearing in the record. Johnson v. State, 986 N.E.2d

      852, 856 (Ind. Ct. App. 2013). We defer to the trial court’s decision, and our

      goal is to determine whether the defendant’s sentence is inappropriate, not

      whether some other sentence would be more appropriate. Conley v. State, 972

      N.E.2d 864, 876 (Ind. 2012), reh’g denied. Downey, as the appellant, bears the

      burden of demonstrating her sentence is inappropriate. See Childress v. State, 848

      N.E.2d 1073, 1080 (Ind. 2006).


[9]   When considering the nature of the offense, the advisory sentence is the starting

      point for determining the appropriateness of a sentence. Anglemyer, 868 N.E.2d

      at 494. The sentencing range for a Level 3 felony is “a fixed term of between

      three (3) and sixteen (16) years, with the advisory sentence being nine (9)


      Court of Appeals of Indiana | Memorandum Decision 35A02-1710-CR-2257 | March 29, 2018   Page 4 of 7
       years.” Ind. Code § 35-50-2-5(b) (2014). The sentencing range for a Level 5

       felony is “a fixed term of between one (1) and six (6) years, with the advisory

       sentence being three (3) years.” Ind. Code § 35-50-2-6 (2014). The trial court

       sentenced Downey to twelve years for the Level 3 felony and four years for the

       Level 5 felony, to be served concurrently. Thus, Downey received a twelve-

       year sentence for her offenses.


[10]   Downey sold two different types of drugs on two different days to a Huntington

       City Police confidential informant. While we acknowledge the fact that this

       means the drugs were not introduced to the general populace, Downey did not

       know the buyer was an informant when she committed the crimes. Her

       behavior indicates her willingness to sell illegal drugs and her ability to find

       multiple drugs to sell. Nevertheless, there is nothing more egregious about

       Downey’s crimes than the standard dealing offenses.


[11]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Johnson, 986 N.E.2d at 857. The significance of

       criminal history varies based on the gravity, nature, and number of prior

       offenses in relation to the current offense. Id. Downey argues her criminal

       history should not have been found as an aggravating factor because none of

       the prior convictions were drug-related. 3 She argues that her guilty plea,

       entered within “just three and a half months after her arrest[,]” (Appellant’s Br.




       3
           Downey does acknowledge the alcohol-related offenses are substance abuse crimes.


       Court of Appeals of Indiana | Memorandum Decision 35A02-1710-CR-2257 | March 29, 2018   Page 5 of 7
       at 9), demonstrates “her acceptance of responsibility for her actions.” (Id.) As

       such, she argues that a portion of her sentence should have been suspended as

       she took responsibility for her actions and pled guilty.


[12]   Downey’s criminal history includes numerous juvenile adjudications. As an

       adult, she has been convicted of Class D felony obstruction of justice and

       twenty-one misdemeanor convictions including: possession of alcohol by a

       minor, conversion, driving while intoxicated, public intoxication, driving while

       suspended, disorderly conduct, and false informing. The trial court noted

       Downey’s probation had been revoked seven times. At least two petitions to

       revoke were filed because Downey tested positive for a substance she was not

       allowed to have, i.e., alcohol and cocaine.


[13]   The trial court noted Downey had “an extensive criminal history.” (Tr. at 57.)

       It was concerned with Downey’s drug use and her non-compliance with the

       terms of her pre-trial release. It indicated she would not be able to be compliant

       with “any type of Probation, um Community Corrections, or anything.” (Id. at

       56.) Downey had been offered multiple opportunities to serve sentences on

       probation but she repeatedly violated the terms of probation. Although

       Downey’s criminal history does not contain drug-related offenses, it

       demonstrates a pattern of behavior the trial court found understandably

       disturbing. We cannot say her criminal history was the sole aggravator; rather,

       her pattern of non-compliant behavior was the foremost aggravator. Her

       behavior over more than twenty years indicates a failure to take responsibility

       for her actions. Given these circumstances, Downey’s character does not lead

       Court of Appeals of Indiana | Memorandum Decision 35A02-1710-CR-2257 | March 29, 2018   Page 6 of 7
       us to see as inappropriate the trial court’s sentence of twelve years without any

       portion of the sentence suspended. See Rutherford v. State, 866 N.E.2d 867, 874

       (Ind. Ct. App. 2007) (continuing to commit crimes after frequent contacts with

       the judicial system is a poor reflection on one’s character); see also Connor v.

       State, 58 N.E.3d 215, 221 (Ind. Ct. App. 2016) (continued crimes indicate a

       failure to take full responsibility for one’s actions). 4



                                                  Conclusion
[14]   Downey has not demonstrated her twelve-year sentence is inappropriate in light

       of her character and her offense. Accordingly, we affirm.


[15]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       4
         Downey also appears to request we reexamine the weight given to her guilty plea. She argues her plea
       showed she had taken responsibility for her action and should have resulted in a partially suspended
       sentence. However, the trial court did recognize her plea as a mitigating factor but found it was outweighed
       by her criminal history and her non-compliance with probation requirements. The trial court did not
       overlook her plea. It simply did not give it the weight she wished it to have. Downey’s request that we
       reexamine the weight given to her guilty plea is not a request we can grant. See Anglemyer v. State, 868 N.E.2d
       482, 491 (Ind. 2007) (appellate court can no longer review the weight assigned to aggravators and mitigators),
       clarified on reh’g 875 N.E.2d 218 (2007).

       Court of Appeals of Indiana | Memorandum Decision 35A02-1710-CR-2257 | March 29, 2018              Page 7 of 7
