MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                Jun 26 2019, 9:56 am

court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jennifer A. Joas                                         Curtis T. Hill, Jr.
Madison, Indiana                                         Attorney General of Indiana
                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anita Dustrude,                                          June 26, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-127
        v.                                               Appeal from the Ripley Circuit
                                                         Court
State of Indiana,                                        The Honorable Ryan J. King,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         69C01-1710-F4-18 & 69C01-1807-
                                                         F5-30



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-127 | June 26, 2019                      Page 1 of 12
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Anita Dustrude (Dustrude), appeals her sentence

      following her guilty plea for dealing in methamphetamine, a Level 4 felony,

      Ind. Code § 35-48-4-1.1(a)(c)(2); dealing in methamphetamine, a Level 5

      felony, I.C. § 35-48-4-1.1; maintaining a common nuisance, a Level 6 felony,

      I.C. § 35-45-1-5(c); and unlawful possession of a syringe, a Level 6 felony, I.C. §

      16-42-19-18.


[2]   We affirm.


                                                    ISSUE
[3]   Dustrude presents us with one issue on appeal: Whether her sentence is

      inappropriate in light of the nature of her offenses and her character.


                      FACTS AND PROCEDURAL HISTORY
[4]   On October 10, 2017, a confidential informant for the Indiana State Police

      (ISP) made a controlled buy of one half of a gram of methamphetamine from

      Dustrude at her residence on Meridian Street in Sunman, Indiana. Dustrude

      had been supplying the confidential informant with methamphetamine for the

      previous six months. Based on that controlled buy, on the same day, the ISP

      procured and executed a search warrant for Dustrude’s home. The search of

      Dustrude’s residence yielded methamphetamine, three hypodermic syringes, a

      digital scale, a glass pipe, and cell phones. Dustrude claimed ownership of the

      syringes and paraphernalia. After being asked several times, she denied having

      any contraband on her person. Dustrude was arrested and transported to jail,
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-127 | June 26, 2019   Page 2 of 12
      where she again denied possessing any contraband. A strip search conducted

      by a female officer revealed a white object protruding from Dustrude’s vagina.

      Dustrude attempted to push the object further into her vaginal canal. Upon

      being informed that a search warrant for her body cavities would be procured

      and she would be transported to a hospital to have the object removed,

      Dustrude tendered the two grams of methamphetamine she had secreted.


[5]   On October 12, 2017, Dustrude was released on bond. On October 13, 2017,

      the State filed an Information under Cause Number 69C01-1710-F4-18 (Cause

      18), charging Dustrude with possession with intent to deal methamphetamine,

      dealing in methamphetamine, maintaining a common nuisance, possession of a

      hypodermic needle, and possession of paraphernalia. After being released on

      bond, Dustrude admitted to an ISP trooper that she continued to deal

      methamphetamine but intended to stop. Dustrude also expressed interest in

      cooperating with law enforcement as a confidential informant. Law

      enforcement resources were expended to develop Dustrude as an informant, but

      ultimately she did not perform any of the expected work.


[6]   The authorities continued to receive complaints regarding drug activity at

      Dustrude’s residence. On July 23, 2018, ISP performed a trash pull at

      Dustrude’s residence as part of their ongoing criminal investigation. The trash

      pull yielded mail bearing Dustrude’s name as well as a baggie that tested

      positive for methamphetamine. ISP procured a second search warrant for

      Dustrude’s home which was executed on July 23, 2018. The second search of

      Dustrude’s home produced more than one gram of methamphetamine, which

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-127 | June 26, 2019   Page 3 of 12
      was found in Dustrude’s purse, digital scales, a glass pipe containing suspected

      methamphetamine residue, a round orange pill identified as Schedule II

      controlled substance amphetamine, and six alprazolam pills, a Schedule IV

      controlled substance. Dustrude was interviewed and admitted that she used

      and sold methamphetamine. Dustrude also identified three people to whom

      she had sold methamphetamine in Sunman during the previous week.


[7]   Three other individuals, Austin Eckstein, Atlanta Young, and Dustrude’s son,

      Dominic, were present at the time of the execution of the search warrant and

      were also arrested on drug-related charges. They were subsequently

      interviewed and admitted to having used methamphetamine in Dustrude’s

      residence. Eckstein admitted that Dustrude had provided him with

      methamphetamine repeatedly. In his interview, Dominic admitted that he

      would ask Young for methamphetamine and Young would procure the drugs

      from Dustrude for Dominic. Both Eckstein and Dominic had driven Dustrude

      to Ohio to procure more methamphetamine, a trip she made nearly daily.


[8]   On July 24, 2018, the State filed an Information under Cause Number 69C01-

      1807-F5-30 (Cause 30), charging Dustrude with dealing in methamphetamine,

      possession of methamphetamine, maintaining a common nuisance, possession

      of a controlled substance, and possession of paraphernalia. On October 4,

      2018, pursuant to a plea agreement with the State, Dustrude pleaded guilty in




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-127 | June 26, 2019   Page 4 of 12
       Cause 18 to dealing in methamphetamine as a Level 4 felony, 1 maintaining a

       common nuisance, and unlawful possession of a syringe charges. Pursuant to

       the same agreement, Dustrude pleaded guilty in Cause 30 to the dealing in

       methamphetamine charge. According to the terms of the plea agreement, all of

       the sentences for the Cause 18 offenses would be served concurrent to each

       other but consecutively to the Cause 30 offense, and all other charges pending

       against Dustrude in both Causes were to be dismissed by the State.


[9]    The presentence investigation report filed in this matter revealed the following.

       Dustrude was forty-six years old at the time of sentencing. Dustrude had no

       record of criminal convictions prior to the instant offenses. She was

       unemployed at the time of the offenses and had last been employed in 2015.

       Dustrude reported that she first began consuming methamphetamine, heroin,

       and alcohol at the age of forty. Dustrude had discontinued her daily heroin

       habit at the age of forty-three but continued to use methamphetamine. She had

       never received any treatment for her substance abuse.


[10]   On October 4, 2018, the trial court held Dustrude’s sentencing hearing.

       Dustrude testified that before being arrested for the Cause 30 offenses, she was

       ingesting .4 grams of methamphetamine and drinking a fifth of vodka each day.

       Dustrude informed the trial court that, as a result of being in custody awaiting

       resolution of her case, she was sober for the first time in six years. Dustrude




       1
         The Level 4 felony in Cause 18 was originally charged as possession of methamphetamine with intent to
       deal.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-127 | June 26, 2019                  Page 5 of 12
       was attending Narcotics Anonymous meetings in jail. Dustrude stated that she

       was ashamed of her conduct and expressed remorse for her actions.


[11]   The trial court found as aggravating circumstances that Dustrude was free on

       bond in Cause 18 when she committed the Cause 30 offense, which the trial

       court found to be significantly aggravating, as it reflected poorly on her

       character and was an indication of an increased likelihood that she would re-

       offend. The trial court also found that the ongoing nature of Dustrude’s

       methamphetamine dealing was an aggravator of substantial weight. In support

       of that aggravating circumstance, the trial court found that Dustrude had sold

       methamphetamine to a controlled informant; brought two grams of the drug

       into the jail with intent to sell, despite being asked multiple times whether she

       was concealing anything on her person; upon being released on bond in Cause

       18, Dustrude expressed her desire to cease dealing but then dealt

       methamphetamine again; and that after her arrest for the Cause 30 offenses, she

       admitted to having sold methamphetamine to three other individuals that week.

       The trial court found as a moderately mitigating circumstance that Dustrude

       had pleaded guilty and accepted responsibility, finding that the cases “would

       probably be hard to fight.” (Transcript p. 58). It also found Dustrude’s lack of

       prior criminal history to be a mitigator but found that factor’s significance to be

       diminished in light of her drug use during the previous six years.


[12]   The trial court found that the aggravating circumstances substantially

       outweighed the mitigators. In Cause 18, the trial court sentenced Dustrude to

       nine years for the dealing in methamphetamine conviction and to two-year

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-127 | June 26, 2019   Page 6 of 12
       terms for each of the other Level 6 felony convictions in that cause, to be served

       concurrently to the dealing sentence. The trial court suspended one year from

       the sentence imposed in Cause 18. In Cause 30, the trial court sentenced

       Dustrude to five years, with two years suspended, and it ordered her to serve

       that sentence consecutively to the sentence imposed in Cause 18, for an

       aggregate sentence of fourteen years, with three years suspended to probation.


[13]   Dustrude now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[14]   Dustrude contends that her sentence is inappropriate in light of the nature of

       her offenses and her character. “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 revise 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).


[15]   When assessing the nature of an offense, the advisory sentence is the starting

       point that the legislature selected as an appropriate sentence for the particular

       crime committed. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-127 | June 26, 2019   Page 7 of 12
       Dustrude pleaded guilty to dealing methamphetamine, a Level 4 felony, and to

       dealing methamphetamine, a Level 5 felony. She also pleaded guilty to two

       Level 6 felonies for maintaining a common nuisance and unlawful possession

       of a syringe. The sentencing range for a Level 4 felony is between two and

       twelve years, with the advisory sentence being six years. I.C. § 35-50-2-5.5.

       The sentencing range for a Level 5 felony is between one and six years, with the

       advisory sentence being three years. I.C. § 35-50-2-6(b). Lastly, the sentencing

       range for a Level 6 felony is between six months and two and one-half years,

       with the advisory sentence being one year. I.C. § 35-50-2-7 (2016). The trial

       court sentenced Dustrude to nine years for the Level 4 felony, five years for the

       Level 5 felony, and two years for each of the Level 6 felonies. Thus, the trial

       court imposed moderately-enhanced sentences for each of the offenses, ordered

       the two Level 6 felony sentences to be served concurrently, and suspended a

       total of three years from the aggregate sentence of fourteen years.


[16]   When reviewing the nature of the offense, we look to the “the details and

       circumstances of the commission of the offense and the defendant’s

       participation.” Perry, 78 N.E.3d at 13. Dustrude sold methamphetamine to

       citizens of Ripley County on an ongoing basis before and after the commission

       of the October 10, 2017, offenses. After being charged in Cause 18, she

       admittedly continued to deal methamphetamine until she was charged with the

       Cause 30 offenses. Thus, as she acknowledges on appeal, there is ample

       evidence in the record that she possessed with intent to deal or dealt

       methamphetamine on more than the two occasions for which she was


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-127 | June 26, 2019   Page 8 of 12
       convicted. Dustrude’s first interaction with law enforcement occurred when an

       ISP trooper spoke with her at her home about the drug activity that was

       occurring there. That interaction did not result in any charges for her, and it

       should have constituted a warning to Dustrude that she should cease her

       involvement with methamphetamine. A similar opportunity was afforded to

       her after she was charged with the Cause 18 offenses and discussed with an ISP

       trooper the fact that she was still dealing drugs. Dustrude even expressed her

       desire to cease dealing, but, again, she did not, which led to her being charged

       with the Cause 30 offenses when she was still on conditional release from the

       Cause 18 offenses. We find the fact that Dustrude brought two grams of

       methamphetamine into jail and fostered the drug use of her own son to be

       particularly condemnable.


[17]   Dustrude argues that the offenses did not merit the sentences imposed because

       she was merely an addict who dealt to support her habit, hers was a small

       operation, and she was not earning significant revenue. However, an addict

       who escalates to dealing is still inflicting the harm of drug dealing on society

       and is assisting others in pursuing their own addiction. In addition, although

       Dustrude attempts to minimize the scale of her drug dealing, it was an

       operation that involved at least three other people, one of whom was her son.

       Accordingly, we find nothing inappropriate regarding the moderately enhanced

       sentences imposed by the trial court or the trial court’s imposition of

       consecutive sentences.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-127 | June 26, 2019   Page 9 of 12
[18]   In addition, upon reviewing a sentence for inappropriateness, we look to a

       defendant’s life and conduct as illustrative of her character. Morris v. State, 114

       N.E.3d 531, 539 (Ind. Ct. App. 2018), trans. denied. Dustrude argues that her

       lack of criminal record and her guilty plea merit a reduced sentence. We

       acknowledge, as did the trial court, that Dustrude led a law-abiding life until the

       age of forty, but we also find the significance of her lack of criminal record to be

       diminished by the fact that she was using heroin and methamphetamine for six

       years prior to her arrest for the Cause 18 offenses, and so was not leading a law-

       abiding life despite never being convicted of a crime. See Conley v. State, 972

       N.E.2d 864, 874 (Ind. 2012) (holding that the defendant’s lack of formal

       criminal history was not a substantial mitigating circumstance in light of his

       marijuana use). In addition, while it is true that Dustrude pleaded guilty and

       accepted responsibility, given the weight of the evidence in the State’s

       possession, the dismissal of the other charges, and the favorable concurrent

       sentencing provision of her plea agreement, we find that this was a pragmatic

       decision on her part which is not entitled to further consideration for sentencing

       than that already accorded to it by the trial court. See Sensback v. State, 720

       N.E.2d 1160, 1165 (Ind. 1999) (finding that a guilty plea is not substantially

       mitigating if a defendant has received a considerable benefit for his plea); see also

       Wells v. State, 836 N.E.2d 475, 479 (Ind. Ct. App. 2005) (holding that decision

       to plead is not entitled to substantial mitigating weight if the evidence against

       the defendant is such that his decision to plead guilty is a pragmatic one), trans.

       denied.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-127 | June 26, 2019   Page 10 of 12
[19]   Dustrude also directs our attention to the fact that she has “never received drug

       treatment, whether it be inpatient or out-patient, court ordered or not.”

       (Appellant’s Br. p. 15). Dustrude argues that she was eligible for home

       detention, which would have afforded her the opportunity to receive treatment

       for her drug addiction. In support of her argument, Dustrude relies on Hoak v.

       State, 113 N.E.3d 1209 (Ind. 2019), in which our supreme court, conducting a

       review pursuant to Indiana Appellate Rule 7(B), remanded Hoak’s three-year

       sentence for Level 5 felony methamphetamine possession and her four-year

       sanction for violating her probation for Class B felony methamphetamine

       possession. Id. at 1209. In doing so, the court found it particularly significant

       that, despite her many contacts with the criminal justice system due to her drug

       addiction, she had never received any court-ordered substance abuse treatment.

       Id. On remand, the court ordered the trial court to determine if Hoak was

       eligible for community corrections, and if so, to allow her to serve half of her

       sentence there so that she could receive substance abuse treatment. Id.


[20]   We find Hoak to be distinguishable, as Dustrude pleaded guilty to two Counts

       of dealing methamphetamine, as opposed to the simple possession offenses

       involved in Hoak. In addition, unlike Hoak, here, the trial court has already

       suspended three years from Dustrude’s sentence and ordered her to receive

       substance abuse treatment as part of her probation. We also note that at

       sentencing, Dustrude reported experiencing success in her sobriety as a result of

       her attendance at Narcotics Anonymous, a commendable practice. However,

       the deference that we accord the trial court’s sentencing decision will prevail


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-127 | June 26, 2019   Page 11 of 12
       unless it is overcome with compelling evidence of “substantial virtuous traits

       and persistent examples of good character.” Stephenson v. State, 29 N.E.3d 111,

       122 (Ind. 2015). Having been presented with neither, we find that nothing

       about Dustrude’s character renders the sentence imposed by the trial court

       inappropriate.


                                             CONCLUSION
[21]   Based on the forgoing, we conclude that Dustrude’s fourteen-year sentence,

       with three years suspended to probation, is not inappropriate in light of the

       nature of her offenses or her character.


[22]   Affirmed.


[23]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-127 | June 26, 2019   Page 12 of 12
