Amy Morinskey v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 02 2017, 6:46 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Earl McCoy Curtis T. Hill, Jr.
McCoy Law Office Attorney General of Indiana
Lafayette, Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Amy Morinskey, October 2, 2017
Appellant-Defendant, Court of Appeals Case No.
79A04-1705-CR-1150
v. Appeal from the Tippecanoe
Circuit Court
State of Indiana, The Honorable Thomas H. Busch,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79C01-1510-F5-24
Najam, Judge.
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Statement of the Case
[1] Amy Morinskey appeals her convictions for possession of methamphetamine,
as a Level 5 felony, and false informing, as a Class A misdemeanor, following
her guilty pleas. Morinskey presents two issues for our review:
1. Whether the trial court abused its discretion when it
sentenced her.
2. Whether her sentence is inappropriate in light of the
nature of the offenses and her character.
[2] We affirm.
Facts and Procedural History
[3] This court previously stated the relevant facts and procedural history as
follows:1
In January 2012, the State charged Morinskey, under Cause
79C01-1201-FA-2 (“Cause FA-2”), with Count I, Class A felony
dealing in methamphetamine; Count II, Class C felony
possession of methamphetamine; and Count III, Class A
misdemeanor, possession of paraphernalia. In May 2012,
Morinskey pled guilty to an amended Count I, Class B felony
dealing in methamphetamine in exchange for the dismissal of the
remaining counts. Thereafter, in June 2012, the trial court
sentenced Morinskey to twelve (12) years, with eight (8) years
executed in the Department of Correction and four (4) years
suspended to probation. One year of Morinskey’s probation was
1
Morinskey had previously filed a notice of appeal in a related cause, but we dismissed that appeal as
untimely. We subsequently granted Morinskey leave to file a belated notice of appeal in this cause.
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to be served on community corrections. The trial court also
recommended that Morinskey be placed in the Purposeful
Incarceration Program.
***
On September 8, 2015, the State filed a Motion to Commit, in
which it sought to revoke Morinskey’s community corrections
placement. In the motion, the State alleged that Morinskey had
failed to follow the trial court’s order to report to the Tippecanoe
County Community Corrections to serve her executed sentence
and had failed to pay the balance owed to them. The State also
noted that Morinskey was not incarcerated in the Department of
Correction or in the county jail. The trial court then issued a
warrant for Morinskey’s arrest.
On October 18, 2015, officers from the Lafayette Police
Department initiated a traffic stop of a vehicle in which
Morinskey was a passenger. When questioned by the officers,
Morinskey identified herself with a false name, attempting to
avoid the arrest warrant issued for her. During a search of the
vehicle, the officers found methamphetamine and drug
paraphernalia. The officers ultimately figured out Morinskey’s
true identity and arrested her. When the police booked
Morinskey into the jail, they discovered a bag of
methamphetamine on her person.
Subsequently, the State charged Morinskey, under Cause 79C01-
1510-F5-24 (“Cause F5-24”), with the following: Count I, Level
6 felony possession of methamphetamine; Count II, Class C
misdemeanor possession of paraphernalia; Count III, Class A
misdemeanor false informing; and Count IV, Level 5 possession
of methamphetamine (while having a prior dealing in
methamphetamine conviction).
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On October 29, 2015, the State filed, in Cause FA-2, a petition to
revoke Morinskey’s probation. On November 10, 2015, the trial
court held an initial hearing on the probation revocation petition.
On December 29, 2015, Morinskey entered into a plea agreement
that addressed Cause F5-24 and Cause FA-2. In regard to F5-24,
Morinskey agreed to plead guilty to Count III, Class A
misdemeanor false informing, and Count IV, Level 5 possession
of methamphetamine, in exchange for the dismissal of the
remaining two charges. As for Cause FA-2, Morinskey agreed to
admit to the allegation contained in the State’s Motion to
Commit in exchange for the State’s dismissal of the petition to
revoke her probation in its entirety. Additionally, she agreed that
sentencing would be open to the trial court’s discretion.
On February 19, 2016, the trial court held a combined hearing to
address sentencing in Cause F5-24 and the Motion to Commit
and probation revocation petition in Cause FA-2. . . . For Cause
F5-24, the trial court imposed a four (4) year sentence for her
Level 5 felony possession of methamphetamine conviction and a
224 day sentence for her Class A misdemeanor false informing
conviction. The trial court ordered these two counts to be served
consecutively to each other and to the executed term in Cause
FA-2. . . .
Morinskey v. State, No. 79A04-1604-CR-981, 2017 WL 218149, at *1-2 (Ind. Ct.
App. January 19, 2017). This belated appeal ensued.
Discussion and Decision
Issue One: Abuse of Discretion in Sentencing
[4] Morinskey first contends that the trial court abused its discretion when it
sentenced her. Generally, sentencing decisions are left to the sound discretion
of the trial court, and we review its decision only for an abuse of that discretion.
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Singh v. State, 40 N.E.3d 981, 987 (Ind. Ct. App. 2015), trans. denied. “An abuse
of discretion occurs if the decision is clearly against the logic and effect of the
facts and circumstances before the trial court.” Id.
One way in which a trial court may abuse its discretion is failing
to enter a sentencing statement at all. Other examples include
entering a sentencing statement that explains reasons for
imposing a sentence—including a finding of aggravating and
mitigating factors if any—but the record does not support the
reasons, or the sentencing statement omits reasons that are
clearly supported by the record and advanced for consideration,
or the reasons given are improper as a matter of law. Under
those circumstances, remand for resentencing may be the
appropriate remedy if we cannot say with confidence that the
trial court would have imposed the same sentence had it properly
considered reasons that enjoy support in the record.
Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007) (“Anglemyer I”) (internal
quotation marks and citations omitted), clarified on reh’g, 875 N.E.2d 218
(“Anglemyer II”).
[5] In its sentencing statement, the trial court identified as aggravating factors:
Morinskey’s criminal history; her recent violations of both community
corrections and probation; and her attempt to “avoid detection” by police.
Appellant’s App. Vol. 2 at 18. The court identified as mitigating factors:
Morinskey’s guilty plea and acceptance of responsibility for the offenses; her
mental illness; her remorse; and her difficult childhood. The trial court found
that the aggravators outweighed the mitigators and imposed an aggregate four-
year sentence.
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[6] Morinskey contends that the trial court abused its discretion when it “failed to
consider the hardship Morinskey’s incarceration would have on her children.”
Appellant’s Br. at 13. An allegation that the trial court failed to identify or find
a mitigating factor requires the defendant to establish that the mitigating
evidence is both significant and clearly supported by the record. Anglemyer I,
868 N.E.2d at 493. Further, “‘[i]f the trial court does not find the existence of a
mitigating factor after it has been argued by counsel, the trial court is not
obligated to explain why it has found that the factor does not exist.’” Id.
(quoting Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993)).
[7] As our Supreme Court has observed, “[m]any persons convicted of serious
crimes have one or more children and, absent special circumstances, trial courts
are not required to find that imprisonment will result in an undue hardship.”
Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999). On appeal, Morinskey
does not direct us to evidence of special circumstances in her case to support
her contention. To the contrary, Morinskey points out that she “did not have
custody of her children at the time of sentencing[.]” Appellant’s Br. at 13-14.
Morinskey states only that she “maintained regular contact and visitation with
her children” and that she was not a “‘bad’ role model for her children.” Id. at
14. Morinskey has not shown that the trial court abused its discretion when it
declined to find as a mitigating factor that her incarceration would be a
hardship on her children.
[8] Morinskey also contends that the trial court abused its discretion when it
“improperly considered [her] act of lying to police about her identity” as an
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aggravating factor when it cited her attempt to avoid detection by police.
Appellant’s Br. at 12. Morinskey maintains that, because her attempt to avoid
detection by police was an element of the offense of false reporting, the trial
court improperly considered that aggravator. In support of that contention,
Morinskey cites to Gomillia v. State, 13 N.E.3d 846, 852 (Ind. 2014), where our
Supreme Court held that, “[w]here a trial court’s reason for imposing a
sentence greater than the advisory sentence includes material elements of the
offense, absent something unique about the circumstances that would justify
deviating from the advisory sentence, that reason is ‘improper as a matter of
law.’” (Quoting Anglemyer I, 868 N.E.2d at 491).
[9] However, even if the trial court’s consideration of Morinskey’s attempt to avoid
detection were improper, “‘when a trial court improperly applies an aggravator
but other valid aggravating circumstances exist, a sentence enhancement may
still be upheld.’” Baumholser v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016)
(quoting Hackett v. State, 716 N.E.2d 1273, 1278 (Ind. 1999) (internal citations
omitted)). Morinskey does not challenge the other aggravators identified by the
trial court in support of her four-year sentence, which is only one year more
than the advisory sentence for a Level 5 felony. Ind. Code § 35-50-2-6(b)
(2017). Again, the trial court also identified as aggravating: Morinskey’s
criminal history, which includes two felony convictions, one of which is for
dealing in methamphetamine, as a Class B felony, and six misdemeanor
convictions; and her violations of community corrections and probation.
Indeed, Morinskey was on probation and had a warrant out for her arrest when
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she committed the instant offenses. We are confident that, had the trial court
considered only those proper aggravators, it would have sentenced Morinskey
to four years executed. See Anglemyer I, 868 N.E.2d at 491 (holding remand for
resentencing appropriate if we cannot say with confidence that the trial court
would have imposed the same sentence had it properly considered reasons that
enjoy support in the record). Accordingly, the trial court did not abuse its
discretion when it sentenced Morinskey.
Issue Two: Appellate Rule 7(B)
[10] Morinskey also contends that her sentence is inappropriate in light of the nature
of the offenses and her character. As we have explained:
Indiana Appellate Rule 7(B) permits an Indiana appellate court
to “revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and
the character of the offender.” We assess the trial court’s
recognition or nonrecognition of aggravators and mitigators as an
initial guide to determining whether the sentence imposed was
inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct.
App. 2006). The principal role of appellate review is to “leaven
the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). A defendant must persuade the appellate court that his or
her sentence has met the inappropriateness standard of review.
Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).
Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).
[11] Morinskey maintains that “the facts and circumstances set forth in this case are
mild compared to the fact patterns set forth in many methamphetamine or false
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informing offense cases.” Appellant’s Br. at 16. She states that “[t]here were
no victims.” Id. And she asserts that her failure to give officers her true name
did not “significantly impact[]” their investigation into the offenses. Id. But the
State characterizes Morinskey’s offenses as “notably egregious in the magnitude
of resistance and disregard for authority.” Appellee’s Br. at 21. We do not
agree with either Morinskey’s or the State’s description of the nature of the
offenses. Rather, we simply note that Morinskey never voluntarily revealed her
identity to police officers. Morinskey only admitted to her identity after an
investigating officer discovered her name by searching a database and finding a
photograph and description of her unique tattoos. We cannot say that
Morinskey’s four-year sentence is inappropriate in light of the nature of the
offenses.
[12] Morinskey also maintains that her sentence is inappropriate in light of her
character. In support, Morinskey merely states that her “criminal actions are
directly related to her addictions to controlled substances” and she would like to
seek substance abuse counseling. Appellant’s Br. at 14. But Morinskey’s
substance abuse has spanned several years, and she failed to comply with
community corrections following her 2012 conviction for Class B felony dealing
in methamphetamine. Not only is Morinskey’s criminal history significant, but
this is her second felony conviction related to methamphetamine. And, again,
she was on probation and had a warrant out for her arrest at the time of the
instant offenses. We cannot say that Morinskey’s sentence is inappropriate in
light of her character.
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[13] Affirmed.
Kirsch, J., and Brown, J., concur.
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