Cassidi Mosier v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Oct 18 2016, 8:26 am
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
Jeffrey W. Elftman Gregory F. Zoeller
Kokomo, Indiana Attorney General of Indiana
Paula J. Beller
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cassidi Mosier, October 18, 2016
Appellant-Defendant, Court of Appeals Case No.
34A05-1604-CR-946
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable William C.
Appellee-Plaintiff. Menges, Judge
Trial Court Cause No.
34D01-1512-F6-1084
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Cassidi J. Mosier (Mosier), appeals her sentence
following her conviction for possession of a narcotic, a Level 6 felony, Ind.
Code § 35-48-4-6(a).
[2] We affirm.
ISSUES
[3] Mosier raises one issue on appeal, which we restate as the following two
issues: 1
(1) Whether the trial court abused its sentencing discretion by failing to identify
any mitigating circumstances; and
(2) Whether Mosier’s sentence is inappropriate in light of the nature of the
offense and her character.
FACTS AND PROCEDURAL HISTORY
[4] On December 3, 2015, Detective Cody Rayls (Detective Rayls) of the Kokomo
Police Department received an anonymous tip that Mosier was going to be
involved in a heroin transaction at the Sun-Way East Mobile Home Park in
Kokomo, Howard County, Indiana. The informant also advised that Mosier
1
Although Mosier combines her arguments, we note that “inappropriate sentence and abuse of discretion
claims are to be analyzed separately” because “an inappropriate sentence analysis does not involve an
argument that the trial court abused its discretion in sentencing the defendant.” King v. State, 894 N.E.2d
265, 267 (Ind. Ct. App. 2008).
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had outstanding warrants. Detective Rayls verified that Mosier did indeed have
three active warrants on petitions to revoke probation.
[5] That day, at approximately 5:00 p.m., Detective Rayls, along with another
officer, arrived at the Sun-Way East Mobile Home Park and began conducting
surveillance. Less than ten minutes later, a red truck drove into the mobile
home park and parked alongside the road. Shortly thereafter, a female, who
Detective Rayls recognized as Mosier based on prior investigations, approached
the truck. Mosier entered the truck on the passenger side and exited
approximately twenty seconds later. At this time, Detective Rayls exited his
unmarked police vehicle and identified himself to Mosier. Despite his
instructions to stop, Mosier fled. Detective Rayls followed her as she ran inside
a mobile home, and he placed her under arrest.
[6] After receiving her Miranda warnings, Mosier admitted that she had provided
the driver of the red truck with $40.00 in order to purchase heroin. She
identified the truck driver as Lamont Smith (Smith) from Logansport, Indiana.
When asked if anything inside the mobile home belonged to her, Mosier stated
that she had left her purse inside and that there were syringes in the purse.
Detective Rayls searched the purse and discovered six syringes, along with a
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silver spoon that contained a white residue. The white residue tested positive
for heroin. 2
[7] On December 4, 2015, the State filed an Information, charging Mosier with
Count I, possession of a narcotic drug, a Level 6 felony, I.C. § 35-48-4-6(a);
Count II, unlawful possession of a syringe, a Level 6 felony, I.C. § 16-42-19-
18(a)-(b); and Count III, resisting law enforcement, a Class A misdemeanor,
I.C. § 35-44.1-3-1(a)(1). On January 5, 2016, Mosier entered into a plea
agreement with the State, pursuant to which she agreed to plead guilty to Count
I, possession of a narcotic as a Level 6 felony, in exchange for the State’s
dismissal of Counts II and III. The plea agreement left sentencing to the
discretion of the trial court.
[8] On March 30, 2016, the trial court conducted a sentencing hearing. The parties
stipulated to a factual basis for Mosier’s guilty plea. The trial court accepted the
plea agreement and entered a judgment of conviction for one Count of
possession of a narcotic, a Level 6 felony. The trial court sentenced Mosier to
serve 913 days (i.e., two and one-half years), fully executed, in the Indiana
Department of Correction. The trial court ordered her sentence to run
consecutively to the sentences imposed in three other, unrelated causes.
2
It is unclear from the record whether Mosier actually received heroin from Smith after paying the $40.00.
It does not appear that the officers recovered any heroin from Mosier’s possession other than the residue on
the spoon.
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[9] Mosier now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Abuse of Sentencing Discretion
[10] Mosier claims that the trial court abused its discretion in imposing an executed
sentence of two and one-half years. A Level 6 felony is punishable by “a fixed
term of between six (6) months and two and one-half (2 ½) years, with the
advisory sentence being one (1) year.” I.C. § 35-50-2-7(b). Thus, the trial court
ordered Mosier to serve the maximum sentence. It is well established that
sentencing decisions rest within the sound discretion of the trial court and are
subject to appellate review only for an abuse of that discretion. Anglemyer v.
State, 868 N.E.2d 482, 490, clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). It is
an abuse of discretion if the trial court’s “decision is ‘clearly against the logic
and effect of the facts and circumstances before the court, or the reasonable,
probable, and actual deductions to be drawn therefrom.’” Id. (quoting K.S. v.
State, 849 N.E.2d 538, 544 (Ind. 2006)).
[11] In fashioning a sentence, a trial court is required to enter a sentencing statement
that includes “a reasonably detailed recitation of the trial court’s reasons for
imposing a particular sentence.” Id. If the trial court’s recitation “includes a
finding of aggravating or mitigating circumstances, then the statement must
identify all significant mitigating and aggravating circumstances and explain
why each circumstance has been determined to be mitigating or aggravating.”
Id. Accordingly, our courts have found that, in matters of sentencing, a trial
court may be found to have abused its discretion by failing to enter a sentencing
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statement at all; by entering a sentencing statement that explains reasons for
imposing a sentence, including aggravating and mitigating factors, which are
not supported by the record; by entering a sentencing statement that omits
reasons that are clearly supported by the record and advanced for consideration;
or by entering a sentencing statement with reasons that are improper as a matter
of law. Id. However, because a trial court has no “obligation to ‘weigh’
aggravating and mitigating factors against each other when imposing a
sentence, . . . a trial court can not now be said to have abused its discretion in
failing to ‘properly weigh’ such factors.” Id. at 491. Furthermore, even if a trial
court has abused its sentencing discretion, we will only remand for resentencing
“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.” Id.
[12] In the present case, the trial court’s sentencing statement identified two
aggravating circumstances: Mosier’s criminal history and the fact that she was
on probation in connection with three separate cause numbers at the time she
committed the present offense. The trial court stated that it found no mitigating
circumstances. During the sentencing hearing, Mosier asked the trial court to
impose a suspended sentence of either probation or day reporting (i.e.,
Community Corrections). Mosier indicated her willingness to complete a
rehabilitation program and ongoing treatment as conditions of probation.
Instead, the trial court determined that a fully executed sentence was
warranted.
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[13] Mosier contends on appeal that the trial court abused its discretion by failing to
consider as a mitigating circumstance that she would respond to drug treatment
and probation over a lengthy term of imprisonment. Indiana Code section 35-
38-1-7.1(b)(7) provides that a trial court may consider that an individual “is
likely to respond affirmatively to probation or short term imprisonment” as a
mitigating circumstance. We note that Mosier bears the burden of “establishing
that ‘the mitigating evidence is both significant and clearly supported by the
record.’” McElfresh v. State, 51 N.E.3d 103, 112 (Ind. 2016) (quoting Anglemyer,
868 N.E.2d at 493).
[14] We find that Mosier has failed to meet her burden. Rather, the record reveals
that Mosier has, in her past run-ins with the criminal justice system, received
suspended sentences and terms of probation. Yet, she was repeatedly non-
compliant with the terms of those lenient sentences. Moreover, on four prior
occasions, trial courts have ordered her to complete a drug and alcohol
program. While it is unclear whether she complied with these orders to
complete the drug and alcohol program, it is evident that the courts’ prior
attempts to refer Mosier for treatment have been futile. Thus, the evidence
clearly establishes that Mosier is unlikely to respond affirmatively to yet another
sentence of drug treatment and probation, and the trial court did not abuse its
discretion in declining to identify this as a mitigating circumstance.
[15] Mosier additionally asks our court “to consider the duress and compulsion of a
heroin addiction as a factor to consider. Mosier’s crime was prompted by her
illness and but for the coercive nature of addiction Mosier would likely not have
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run afoul of the law.” (Appellant’s Br. p. 10). We note that Mosier did not
advance this argument as a mitigating circumstance for the trial court to
consider during sentencing. See Anglemyer v. State, 868 N.E.2d at 492 (“[T]he
trial court does not abuse its discretion in failing to consider a mitigating factor
that was not raised at sentencing.”). Nonetheless, the trial court was clearly
aware of Mosier’s ongoing substance abuse, but in light of her significant
criminal history, it did not find this to be a significant mitigating circumstance.
See Townsend v. State, 45 N.E.3d 821, 830 (Ind. Ct. App. 2015) (“The trial court
is not obligated to accept the defendant’s argument as to what constitutes a
mitigating factor.”) (quoting Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct. App.
2012)), trans. denied.
[16] Finally, although she raises this issue in the midst of her argument regarding the
appropriateness of her sentence, Mosier asserts that the trial court should have
considered her acceptance of guilt as a mitigating circumstance. Again, Mosier
did not proffer this fact as a circumstance for the trial court to consider in
mitigation. However, our courts have explained that “‘[b]ecause a sentencing
court is inherently aware of the fact that a guilty plea is a mitigating
circumstance,’ a defendant is not prohibited from ‘raising the issue for the first
time on appeal.’” Smith v. State, 908 N.E.2d 1251, 1254 (Ind. Ct. App. 2009)
(quoting Anglemyer, 875 N.E.2d at 220). It is well established that “[a] guilty
plea is not necessarily a mitigating factor where the defendant receives
substantial benefit from the plea or where evidence against the defendant is so
strong that the decision to plead guilty is merely pragmatic.” Barker v. State, 994
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N.E.2d 306, 312 (Ind. Ct. App. 2013), trans. denied. Here, Mosier received a
substantial benefit by pleading guilty because the State dismissed two additional
charges—a Level 6 felony for possession of syringes and a Class A
misdemeanor for resisting law enforcement. Given her admission that there
were syringes in her purse and the fact that she ran away when Detective Rayls
ordered her to stop, the evidence for these additional offenses was strong.
Thus, the trial court did not abuse its discretion by failing to identify her guilty
plea as a mitigating circumstance. Accordingly, we find no abuse of discretion
in the trial court’s sentencing decision.
II. Appropriateness of Sentence
[17] Mosier also claims that her two-and-one-half-year sentence is inappropriate. As
we previously mentioned, “‘sentencing is principally a discretionary function in
which the trial court’s judgment should receive considerable deference.’” Parks
v. State, 22 N.E.3d 552, 555 (Ind. 2014) (quoting Cardwell v. State, 895 N.E.2d
1219, 1222 (Ind. 2008)). Nevertheless, even where, as here, a trial court
imposes a sentence that is authorized by statute, our court may revise the
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.” Ind. Appellate Rule 7(B).
[18] Appellate Rule 7(B) provides for sentence review in an “attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Cardwell, 895 N.E.2d at 1225. Ultimately,
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“whether we regard a sentence as appropriate at the end of the day turns on our
sense of the culpability of the defendant, the severity of the crime, the damage
done to others, and myriad other factors that come to light in a given case.” Id.
at 1224. On review, we focus on “the length of the aggregate sentence and how
it is to be served.” Id. Mosier bears the burden of persuading this court that her
sentence is inappropriate. Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct. App.
2014). On appeal, she requests that our court revise her sentence to a term of
eighteen months, with any executed portion to be served through Community
Corrections.
[19] First considering the nature of the offense, the evidence establishes that Mosier,
while on probation in three other cases, paid $40.00 to Smith in order to
purchase heroin. When Detective Rayls intervened, Mosier attempted to flee
but was apprehended. A subsequent search of her purse revealed syringes and a
spoon covered in heroin residue. According to Mosier, “[t]here was no
evidenced in the record to show that [her] possession of heroin was more
egregious than any other possession charge. There was no evidence that the
nature of [her] actions could be called the worst offense.” (Appellant’s Br. pp.
10-11). While we agree that her offense was not the worst this court has seen,
this fact alone does not warrant a sentence revision.
[20] Turning to the character of the offender, we find that Mosier has a lengthy
criminal history. Between 2007 and 2014, she was convicted of a Class D
felony for operating a vehicle while intoxicated; six Class A misdemeanors for
driving while suspended (three times), operating a vehicle while intoxicated
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endangering a person, conversion, and operating a vehicle with an alcohol
concentration equivalent to 0.15 or more; one Class B misdemeanor for failure
to stop after accident resulting in damage to an unattended vehicle; and one
Class C misdemeanor for illegal possession of an alcoholic beverage. Mosier
contends that her prior criminal history “should be considered of minimal
weight” because her crimes never “resulted in injury to another and . . . do not
show a propensity for violent conduct.” (Appellant’s Br. p. 11). We, however,
find that her criminal history demonstrates her propensity for disregarding the
law. She has received periods of probation and suspended sentences, as well as
incarceration in both jail and the Department of Correction. Yet, none of these
measures have been sufficient to deter Mosier from committing additional
offenses. Moreover, despite receiving leniency in the past, Mosier has violated
the terms of her suspended sentences at least eight times.
[21] Mosier’s refusal to lead a law-abiding life is further evidenced by the fact that,
prior to her incarceration, she was admittedly working as a prostitute. In
addition, she has a history of alcohol consumption as a minor and illicit drug
use. Mosier first consumed alcohol at age fourteen and was drinking on a
regular basis by age seventeen. She began experimenting with drugs as a
teenager and has used marijuana, cocaine, methamphetamine, heroin,
Methadone, OxyContin, Xanax, Lortab, Klonopin, Norco, and Ativan. In the
months immediately preceding her arrest in the instant case, Mosier was using
methamphetamine multiple times per week, was injecting heroin on a daily
basis, and was snorting Xanax on a daily basis. Mosier claims that she has a
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substance abuse addiction and would benefit from treatment, and she argues
that she “has never been given the opportunity to receive treatment under the
intense supervision of community corrections programs.” (Appellant’s Br. p.
11). The record reveals that Mosier has previously failed to take advantage of
multiple opportunities to combat her addiction. In 2006, Mosier attended an
intensive outpatient drug treatment program and individual counseling. For a
period of time, she also attended Narcotics Anonymous meetings. In 2013, she
received treatment at St. Joseph Hospital for detoxification. At some point,
Mosier was terminated from a rehabilitation facility in South Bend for
possessing alcohol. She has also been court-ordered to complete a drug and
alcohol program at least four times.
[22] As evidence of her good character, Mosier argues that she cooperated with the
police following her arrest by admitting to her crimes and identifying the
individual who sold her the heroin, and she pled guilty. We agree that these are
redeemable qualities. However, as previously discussed, Mosier received a
substantial benefit by pleading guilty, and in light of the negative attributes
already mentioned, we do not find that her cooperation with the police merits a
sentence revision. Therefore, in light of the nature of the offense and Mosier’s
character, we conclude that her sentence is not inappropriate.
CONCLUSION
[23] Based on the foregoing, we conclude that the trial court acted within its
discretion in sentencing Mosier. We further conclude that Mosier’s sentence is
not inappropriate.
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[24] Affirmed.
[25] Bailey, J. and Barnes, J. concur
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