MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Jan 16 2019, 6:22 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
Amy P. Payne                                             Curtis T. Hill, Jr.
Monroe County Public Defender                            Attorney General of Indiana
Bloomington, Indiana
                                                         Matthew Michaloski
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Burshone Conner,                                         January 16, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1569
        v.                                               Appeal from the Monroe Circuit
                                                         Court
State of Indiana,                                        The Honorable Mary Ellen
Appellee-Plaintiff                                       Diekhoff, Judge
                                                         Trial Court Cause No.
                                                         53C05-1504-F5-374



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1569 | January 16, 2019                Page 1 of 11
[1]   Burshone Conner appeals her six-year sentence for Level 5 felony dealing in

      cocaine. 1 Conner argues her sentence is inappropriate. Within that argument

      Conner alleges prejudicial trial court bias because the trial court judge “had

      formed an opinion of the outcome before the sentencing occurred and that the

      judge had antagonistic beliefs toward [Conner].” (Br. of Appellant at 10.)

      After carefully reviewing the record, we affirm.



                                Facts and Procedural History
[2]   In February 2015, Conner sold what she believed to be cocaine to a police

      informant. For that act, the State charged Conner with one count of Level 5

      felony dealing in cocaine under cause number 53C05-1504-F5-374 (“Cause

      374”). At the same time, but based on other actions, the State charged Conner

      with Level 6 felony theft 2 and Level 6 felony forgery 3 under a different cause

      number, 53C05-1504-F6-375 (“Cause 375”). 4 In March 2016, Conner entered a

      guilty plea for both cause numbers. Judge Mary Ellen Diekhoff delayed

      sentencing and allowed Conner to leave Monroe County to attend a residential

      rehabilitation program at the YWCA in South Bend, Indiana.




      1
          Ind. Code § 35-48-4-1 (2014).
      2
          Ind. Code § 35-43-4-2 (2014).
      3
          Ind. Code § 35-43-5-2 (2014).
      4
        The record provided to us contains only the charging information for Cause 375. (See App. Vol. 2 at 11-14
      (Information, Appearance, Probable Cause Affidavit, and an Order for a warrant all pertaining to the theft
      and forgery charges).) Thus, we relied on the Chronological Case Summary to present the facts and
      procedural history of this appealed case, Cause 374.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1569 | January 16, 2019                Page 2 of 11
[3]   While enrolled at the YWCA and for a time period afterward when Conner

      was securing housing and employment, Judge Diekhoff repeatedly continued

      Conner’s sentencing hearing in light of Conner’s positive progress. During this

      time, Conner also attended hearings in a Child in Need of Services (“CHINS”)

      case in Monroe County. Judge Diekhoff attempted to schedule hearings in this

      matter at the same time as Conner’s CHINS hearings so that Conner could

      limit her trips to Monroe County.


[4]   On May 24, 2018, the trial court held the sentencing hearing. Conner had

      missed two prior scheduled sentencing hearings and had a new criminal charge

      in Marion County for false informing. At this hearing, Conner admitted having

      had a relapse between February 2018 and April 2018. Conner had not

      informed the court of this but had, eventually, decided to attempt treatment on

      her own. Conner stated she was nervous about coming to court. Conner

      testified:


              I did not want the Judge to see me because the guy that I was
              seeing in south [sic] Bend had beat me up and I had a black eye
              and bruises all over my body. I was more ashamed. I was hurt
              and I was more afraid because I had let her and myself down.


      (Tr. Vol. 2 at 38.)




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1569 | January 16, 2019   Page 3 of 11
[5]   During her sentencing statement, Judge Diekhoff noted she had worked with

      Conner over many years through Monroe County’s Problem Solving Court 5

      and now in this matter. Judge Diekhoff asked Conner why Conner did not

      trust her enough to keep her informed after all the trust Judge Diekhoff had

      placed in Conner. On hearing Conner’s response that she was “scared,” (id. at

      48), Judge Diekhoff stated her belief that “nothing has changed” in Conner’s

      behavior since they first met in Problem Solving Court. (Id.)


[6]   Judge Diekhoff noted the leniency the Court had shown to Conner during this

      case: sentencing was delayed, Conner was allowed to leave the county to attend

      a residential rehabilitation program, and hearings had been scheduled to

      coincide with the CHINS hearings. Nevertheless, Conner had still failed to

      appear for two hearings, had gotten a traffic ticket for which she had failed to

      appear in another county, had acquired another criminal charge in Marion

      County, had been in a house in Bloomington wherein drugs were found, and

      had relapsed back into drug use. Especially disturbing to Judge Diekhoff was

      Conner’s failure to inform the court of these facts.


[7]   Judge Diekhoff then “apologize[d] to the State of Indiana for what ended up

      making [sic] a bad decision.” (Id. at 56.) Judge Diekhoff stated:




      5
       Monroe County’s Problem Solving Court Program “provide[s] an opportunity and services to selected
      offenders by addressing criminogenic risk factors through supervision and treatment.”
      https://www.co.monroe.in.us/department/division.php?structureid=129 (last visited December 20, 2018).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1569 | January 16, 2019           Page 4 of 11
              So the Court . . . is out of options. I have no places [sic] else to
              put her. No place else to send her to treatment; no place else
              where I can trust her to be somewhere. Because I cannot even
              trust her to be in this Court when she was supposed to have been.
              Although she managed to find her way to Monroe County
              without coming to Court. To say that the Court is highly
              disappointed would be an understatement. The Court truly
              believes that Ms. Conner was completely capable and was
              actually desiring to change her life and do something differently
              than she had done. Based upon all the factors which the Court
              has now indicated the Court now agrees with the State of Indiana
              and at this time the only appropriate and the only sentenced [sic]
              that the Court is left with is to sentence Ms. Conner to the
              Department of Corrections [sic]. The Court would note again for
              the purposes of the record the Court attempted to avoid it by
              allowing Ms. Conner to go outside of this county to seek
              treatment and be able to address the issues. The Court is now
              convinced that Ms. Conner’s issues are more criminal in nature
              more so than they are any other type of issue. Having now
              exhausted all available treatment; all available options; all
              available everything [the Court proceeds to sentencing.]


      (Id. at 56-57.)


[8]   Conner requested she be given credit time for inpatient treatment at the

      YWCA. Judge Diekhoff originally said, “No not this time.” (Id. at 52.)

      However, after noting the aggravators and mitigators, Judge Diekhoff granted

      Conner’s request for the inpatient treatment credit time and applied all credit

      time to the sentence in Cause 375. For the Level 5 felony dealing in cocaine in

      Cause 374, which is under review in this appeal, Judge Diekhoff sentenced

      Conner to six years in the Indiana Department of Correction.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1569 | January 16, 2019   Page 5 of 11
                                  Discussion and Decision
[9]    Conner argues the nature of her offense and evidence of her good character do

       not warrant the maximum sentence she was given. Further, Conner asserts the

       “trial court failed to reach its sentencing conclusion in a fair, calculated manner

       [and] did not sentence [Conner] based on the merits of this case but on the basis

       of a personal antagonism toward [Conner].” (Br. of Appellant at 6.)


[10]   “The law presumes that a judge is unbiased and unprejudiced. . . . A defendant

       asserting judicial bias must show the trial judge’s actions and demeanor showed

       partiality and prejudiced the case.” Woods v. State, 98 N.E.3d 656, 664 (Ind. Ct.

       App. 2018) (internal citations omitted), trans. denied. “[I]ntemperate comments

       may not necessarily demonstrate bias.” Id. A trial court judge is permitted to

       form opinions based on the facts of the case “occurring in the course of the

       current proceedings, or of prior proceedings[.]” Liteky v. United States, 510 U.S.

       540, 555 (1994). Statements of “impatience, dissatisfaction, annoyance, and

       even anger” do not establish bias. Id. at 555-56.


[11]   Although Judge Diekhoff’s statements may have reflected her impatience with

       this situation or her frustration with Conner’s failure to take advantage of the

       opportunities the court provided, that impatience or frustration, by itself, does

       not equate to judicial bias. See Woods, 98 N.E.3d at 664 (judicial bias consists of

       partiality and prejudice to the case). Furthermore, Judge Diekhoff’s “apology”

       to the State, (see Tr. Vol. II at 56), appears to have been an expression of Judge

       Diekhoff’s regret that she had allowed Conner so much leeway and delayed the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1569 | January 16, 2019   Page 6 of 11
       sentencing for two years when Conner’s more recent actions demonstrated that

       investment of time had not paid off. If that statement could be considered a

       statement of dissatisfaction or annoyance, it seems Judge Diekhoff developed

       that opinion based on the facts of current and past proceedings in her court,

       which is not impermissible. See Liteky, 510 U.S. at 555-6 (judges may form

       opinions based on proceedings, and dissatisfaction and annoyance do not

       establish bias). Although none of Judge Diekhoff’s statements “necessarily

       demonstrate bias,” see Woods, 98 N.E.3d at 664, we review the appropriateness

       of Conner’s sentence to ensure no prejudice occurred.


[12]   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. Conner, as the appellant, bears the

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

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


[13]   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

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1569 | January 16, 2019   Page 7 of 11
       at 494. 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(b) (2014). The trial court sentenced Conner to six years for

       the Level 5 felony. Thus, Conner received the maximum sentence for her

       offense.


[14]   Conner sold what she believed to be cocaine to a confidential informant. While

       we acknowledge the fact that this means the drugs were not introduced to the

       general populace, Conner did not know the buyer was an informant when she

       committed the crime. Her behavior indicates her willingness to sell illegal drugs

       and her ability to find drugs to sell. Nevertheless, there is nothing more

       egregious about Conner’s crime than the standard dealing offense. Thus, we

       turn to Conner’s character.


[15]   Conner argues that although the trial court “acknowledged the addiction,

       mental health concerns, abusive relationships, and the completion of some

       treatment, [it] did not consider other mitigating traits in Conner’s character.”

       (Appellant’s Br. at 9.) This argument is unavailing.


[16]   As mitigators, Conner points to her battle with addiction, her “successful[]”

       completion of treatment, her lifetime of abusive relationships, her mental health

       concerns, her mentoring of other women at the YWCA, her two years of

       sobriety, her going back to treatment “of her own volition,” her employment,

       and her ability to procure housing. (Id.) While the trial court may not have

       mentioned all of these mitigators in the same words, it commented extensively


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1569 | January 16, 2019   Page 8 of 11
       on Conner’s recent history. (See Tr. Vol. 2 at 45-57 (trial court’s statements

       about Conner’s actions and behaviors and its subsequent decision on

       sentencing).) Nevertheless, the trial court is not obliged to give mitigators the

       same weight the defendant would, Flickner v. State, 908 N.E.2d 270, 273 (Ind.

       Ct. App. 2009), and we may not reweigh the aggravators and mitigators

       presented. Anglemyer, 868 N.E.2d at 491.


[17]   When considering the character of the offender, another 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. Conner acknowledges her

       criminal history but contends that her completion of Problem Solving Court

       and the rehabilitation program offered through the South Bend YWCA,

       together with her guilty plea, show “her acceptance of responsibility, [a] sincere

       effort to mend her ways, and her lack of criminal thinking.” (Br. of Appellant

       at 6.)


[18]   Conner’s criminal history includes convictions of misdemeanor conversion,

       felony maintaining a common nuisance, two counts of felony forgery, and

       felony fraud on a financial institution. She had also been charged with felony

       forgery, felony fraud, felony theft, and felony identity deception, but those

       charges were dismissed due to her successful completion of Problem Solving

       Court. Conner has been placed on probation five times and was found in

       violation thereof four times.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1569 | January 16, 2019   Page 9 of 11
[19]   The trial court noted Conner’s “extensive criminal history” (Tr. Vol. 2 at 52),

       dating back to 1991. It noted she was involved in the Problem Solving Court

       and successfully completed the program, but then she reoffended. The court

       enumerated the various programs and opportunities to which Conner had been

       given access, including the Problem Solving Court and the out-of-town YMCA

       program, and it noted Conner nevertheless continued to commit crimes,

       including the commission of additional crimes while awaiting sentencing for

       this crime. The trial court concluded it was left with no option except to place

       Conner in the Department of Correction.


[20]   Conner’s criminal history demonstrates a pattern of behavior indicative of a

       failure to take responsibility for her actions, and it does not lead us to see as

       inappropriate the trial court’s sentence of six years. 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).


[21]   Based on our review of Conner’s character and offense, Connor has not

       demonstrated Judge Diekhoff’s statements at the sentencing hearing prejudiced

       Conner’s sentence. See, e.g., Danner v. State, 900 N.E.2d 9, 13 (Ind. Ct. App.

       2008) (a maximum sentence is not inappropriate when the defendant has shown

       a “complete disregard for the law” together with an extensive criminal history);

       see also Lamar v. State, 915 N.E.2d 193, 196 (Ind. Ct. App. 2009) (maximum



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1569 | January 16, 2019   Page 10 of 11
       sentence is not inappropriate, even if nature of offense is not particularly

       egregious, if the character of the offender is poor).



                                               Conclusion
[22]   Because Conner’s six-year sentence is not inappropriate in light of her

       character, especially her criminal history and her failure to take advantage of

       repeated opportunities provided by the trial court, Conner has not demonstrated

       Judge Diekhoff was biased against her. Accordingly, we affirm.


[23]   Affirmed.


       Baker, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1569 | January 16, 2019   Page 11 of 11
