MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                 Mar 01 2018, 5:44 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                             CLERK
                                                                  Indiana Supreme Court
court except for the purpose of establishing                         Court of Appeals
                                                                       and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                       Curtis T. Hill, Jr.
Kokomo, Indiana                                          Attorney General of Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jaide T. Spencer,                                        March 1, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A02-1711-CR-2615
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable William C.
Appellee-Plaintiff.                                      Menges, Judge
                                                         Trial Court Cause No.
                                                         34D01-1707-F2-871



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2615 | March 1, 2018      Page 1 of 7
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Jaide Spencer (Spencer), appeals the trial court’s sentence

      following a plea agreement for dealing in a narcotic drug, a Level 2 felony, Ind.

      Code 35-48-4-1(a)(2).


[2]   We affirm.


                                                    ISSUE
[3]   Spencer presents us with one issue on appeal, which we restate as: Whether

      Spencer’s executed sentence without a recommendation for the Department of

      Correction’s therapeutic community program, was inappropriate in light of the

      nature of the offense and her character.


                      FACTS AND PROCEDURAL HISTORY
[4]   On July 22, 2017, officers went to the Motel 6 in Kokomo, Indiana, to serve an

      active warrant on Spencer. When they located Spencer in her motel room, she

      was in possession of 25 grams of heroin and a syringe. They also found a set of

      digital scales and two packages of small Ziploc plastic bags that are commonly

      used to package illegal drugs, hidden under the air conditioner.


[5]   On July 25, 2017, the State filed an Information, charging Spencer with Count

      I, dealing in a narcotic drug, a Level 2 felony, I.C. § 35-48-4-1(a)(2); Count 2,

      possession of a narcotic drug, a Level 4 felony, I.C. § 35-48-4-6(a); Count III,

      unlawful possession of a syringe, a Level 5 felony, I.C. § 16-42-19-18; and

      Count IV, maintaining a common nuisance, a Level 6 felony, I.C. § 35-45-1-

      Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2615 | March 1, 2018   Page 2 of 7
      5(c). On September 29, 2017, Spencer entered into a guilty plea with the State,

      agreeing to plead guilty to Count I, in exchange for the State’s dismissal of the

      other charges. The trial court accepted the plea agreement on the same day and

      entered judgment of conviction accordingly.


[6]   On October 31, 2017, the trial court conducted a sentencing hearing. During

      the sentencing hearing, twenty-three-year-old Spencer admitted she has “been

      fooling” around with the drug scene for the past nine years. (Transcript p. 15).

      She started using heroin when she was fourteen years old and has been injecting

      it since May of 2016. She also started using methamphetamine in September

      2016. She used both drugs “off and on at the same time” ever since. (Tr. p.

      18). She has never participated in a drug and alcohol program. During this

      time period, Spencer had three children, who were ages nine, four, and three at

      the time of sentencing, but none of them resided with her.


[7]   Spencer testified that she considered herself “just a user” “until it got hard to get

      [her] drugs.” (Tr. p. 18). Then she started getting larger quantities to “sell

      them” and admitted to becoming a “dealer at some point.” (Tr. p. 18). She

      confirmed that she had planned to sell the amount of heroin found in the motel

      room, after having used some of it.


[8]   Spencer has prior convictions for Level 6 felony possession of a narcotic drug, a

      Class A misdemeanor maintaining a common nuisance, and a Class A

      misdemeanor unlawful possession of a syringe in two separate cases arising out

      of incidents in November 2016. At the time of sentencing, Spencer had a


      Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2615 | March 1, 2018   Page 3 of 7
      warrant out for her arrest for a theft charge in Marshall County, and a petition

      to revoke her probation was pending in Miami County. Spencer requested the

      trial court to sentence her to the DOC’s therapeutic community program, 1

      which would allow the trial court to modify her sentence, upon successful

      completion of the program. She wanted to enroll in the program because she

      doesn’t “want to live like this anymore and [she] just want[s] to be able to get

      [her] life together so [she] can be with [her] children.” (Tr. p. 15).


[9]   During the State’s cross-examination of Spencer, the trial court, in response to

      an objection by Spencer’s counsel, observed:


              I think as a practical matter, what you’re asking for [defense
              counsel], is that she be treated solely as an addict, sent to the
              [t]herapeutic [c]ommunity which puts her back into the general
              population within a year, eighteen months, on the theory that she
              is in fact an addict. We have a couple of problems with that.
              Number 1, we have a large amount of heroin involved. Number
              2, we get into the criminal thinking and we have to, I have to
              figure out whether she is an addict or whether she’s a drug
              dealer. If she’s a drug dealer she doesn’t need [t]herapeutic
              [c]ommunity.


      (Tr. p. 26). In closing, Spencer’s counsel argued that Spencer was not a

      professional drug dealer, but a drug addict who was “stupid enough” to meet a




      1
       The DOC’s therapeutic community program is an in-patient substance abuse therapeutic community for
      offenders who have addictions to drugs or alcohol. See Purposeful Incarceration,
      https://www.in.gov/idoc/2798.htm (last visited Febr. 20, 2018).

      Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2615 | March 1, 2018        Page 4 of 7
       drug dealer and “get big quantities.” (Tr. p. 30). The trial court declined

       Spencer’s request and sentenced her as follows:


               I’m going to find that [Spencer’s] criminal history is an
               aggravating factor, that she’s recently violated the conditions of
               probation, parole, [c]ommunity [c]orrections, placed on pretrial
               release granted to her. I find that her imprisonment will cause a
               hardship on her children but that is a very minimal mitigating
               factor given the situation when she was not incarcerated and so I
               don’t think it’s entitled to much weight. I find that the
               aggravating factors outweigh the mitigating factors and justify an
               enchanced sentence. The problem we have is exactly what I said
               earlier, are we dealing with a drug dealer who needs to be
               incarcerated because of the danger that she poses to the rest of
               society or are we dealing with an addict who needs treatment so
               she can go and live the rest of her life. Twenty-five grams of
               heroin. For somebody just starting heroin usage the average dose
               would be three to four milligrams. You know, there are 1,000
               milligrams in a gram so that 25 grams for somebody just starting
               out would be 8,333 doses of heroin. For somebody who, I guess
               an experienced heroin user, they build a tolerance but it’s
               generally accepted that even though the tolerance exists and the
               amount of heroin that somebody consumes goes up, regardless of
               your tolerance a dosage of 75 milligrams or so is going to be
               fatal, so let’s just assume that you’re a long term heroin user.
               The only [] purchase [sic] 333 doses. I don’t buy it. I think
               you’re a dealer. Accordingly, I’m going to sentence you to the
               Indiana Department of Correction for a period of 20 years.
               That’s executed.


       (Tr. pp. 31-32).


[10]   Spencer now appeals. Additional facts will be provided if necessary.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2615 | March 1, 2018   Page 5 of 7
                               DISCUSSION AND DECISION
[11]   Spencer contends that the trial court improperly imposed an executed sentence

       of twenty years instead of referring her to the DOC’s therapeutic community

       program. Maintaining that the reality between a dealer and addict “is not

       binary,” Spencer argues that the evidence is “unrefuted” that she is a

       “chemically addicted offender” suitable to participate in the therapeutic

       community program. (Appellant’s Br. p. 9).


[12]   We may only revise a sentence authorized by statute if, after due consideration

       of the trial court’s decision, “the [c]ourt finds that the sentence is inappropriate

       in light of the nature of the offense and the character of the offender.” Ind.

       Appellate Rule 7(B). “[S]entencing is principally a discretionary function in

       which the trial court’s judgment should receive considerable deference.”

       Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The question under

       Appellate Rule 7(B) analysis is “not whether another sentence is more

       appropriate” but rather “whether the sentence imposed is inappropriate.” King

       v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). “The location where a

       sentence is to be served is an appropriate focus for application of our review and

       revise authority.” Id. “A defendant challenging the placement of a sentence

       must convince us that the given placement is itself inappropriate.” Id. As a

       practical matter, trial courts know the feasibility of alternative placements in

       particular counties or communities. Id.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2615 | March 1, 2018   Page 6 of 7
[13]   Under the particular circumstances of this case, we conclude that the trial court

       did not improperly sentence Spencer. Spencer’s criminal history includes

       convictions in 2016 for a level 6 felony possession of a narcotic drug, a Class A

       misdemeanor maintaining a common nuisance, and a Class A misdemeanor

       unlawful possession of a syringe. She had a warrant out for her arrest in

       Marshall County, as well as a pending petition to revoke probation in Miami

       County. Even though Spencer testified that she considered herself to be “just a

       user,” the quantity of heroin in her possession—twenty-five grams—was much

       larger than even needed by an experienced drug addict. (Tr. p. 18). Confronted

       by the State, Spencer openly admitted that she became a “dealer at some point”

       and confirmed that she planned to sell the amount of heroin found in the motel

       room. (Tr. p. 18). She has been involved in the drug scene for nine years—the

       entire life of her oldest child—but never sought any substance abuse treatment.


[14]   In light of Spencer’s criminal history—including the failed rehabilitation—and

       her testimony at the sentencing hearing, we cannot conclude that the trial

       court’s sentence of twenty years executed in the DOC, without a

       recommendation for the therapeutic community program, was inappropriate.


                                             CONCLUSION
[15]   Based on the foregoing, we hold that the trial court’s sentence is not

       inappropriate pursuant to Indiana Appellate Rule 7(B).


[16]   Affirmed.


[17]   Baker, J. and Brown, J. concur
       Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2615 | March 1, 2018   Page 7 of 7
