Amanda Schmidtz v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Sep 25 2019, 6:19 am
regarded as precedent or cited before any
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
Kay A. Beehler Curtis T. Hill, Jr.
Terre Haute, Indiana Attorney General of Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Amanda Schmidtz, September 25, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-315
v. Appeal from the Sullivan Superior
Court
State of Indiana, The Honorable Hugh R. Hunt,
Appellee-Plaintiff. Judge
Trial Court Cause No.
77D01-1709-F4-671
Robb, Judge.
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Case Summary and Issues
[1] Following a jury trial, Amanda L. Schmidtz was convicted of dealing in a
schedule II controlled substance, a Level 4 felony, and found to be an habitual
offender. The trial court sentenced Schmidtz to twelve years in the Indiana
Department of Correction for the conviction, enhanced by fifteen years for the
habitual offender finding. Schmidtz appeals, raising the following issues for our
review: 1) whether the State adequately proved her identify as the person who
committed the prior felony offenses on which the habitual offender finding was
based, 2) whether the trial court abused its discretion in sentencing her, and 3)
whether her twenty-seven year sentence is inappropriate in light of the nature of
her offenses and her character. Concluding the evidence was sufficient to
connect Schmidtz to the three prior felonies alleged in the habitual offender
information, the trial court did not abuse its discretion in sentencing Schmidtz,
and Schmidtz’s sentence is not inappropriate, we affirm.
Facts and Procedural History
[2] In May 2017, a confidential informant working for the Sullivan County
Sheriff’s Office purchased thirteen tablets of hydrocodone acetaminophen from
Schmidtz, who had a valid prescription for the pills. The State charged
Schmidtz with one count of dealing in a schedule II controlled substance, a
Level 4 felony, and alleged that she was an habitual offender. The habitual
offender count alleged Schmidtz had been previously convicted of three prior
Class D felonies: 1) operating a vehicle while intoxicated endangering a person
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on February 20, 2008, in Vigo Superior Court cause number 84D05-1610-FD-
3298 (“Cause 3298”); 2) operating a vehicle as an habitual traffic violator on
June 17, 2011, in Sullivan Superior Court cause number 77D01-1007-FD-85
(“Cause 85”); and 3) escape on April 27, 2012, in Sullivan Superior Court cause
number 77D01-1108-FD-77 (“Cause 77”).
[3] At trial, Schmidtz did not dispute that she sold the pills. See Transcript,
Volume 3 at 5-6. She did, however, claim that she sold the pills under duress.
Beginning in 2013, Schmidtz was involved in an abusive relationship with
Jason Donovan. At some point, Donovan began living intermittently in
Schmidtz’s home. He was physically and verbally abusive to Schmidtz and
destructive to her property. Donovan would often steal Schmidtz’s prescription
drugs and Schmidtz felt there was “was [not] any way to get around it, to get
away from it” because if she did not give Donovan “whatever he wanted,
which was mainly [her] medicine, then he didn’t have any problem with
whatever he had to do to get them.” Tr., Vol. 2 at 245-46.
[4] In early 2017, Donovan moved out of Schmidtz’s home and began residing
with a friend, Steve Myers. On May 23, 2017, Myers called Schmidtz and said,
“I got you[r] phone number from [Donovan], can I get some pills?” Id. at 249.
When Schmidtz told him no, Myers said, “[W]e know you have your
prescription, we know you got your script filled.” Id. Schmidtz believed that
“[m]entioning [Donovan’s] name and leading me to believe that [the pills] were
for [Donovan] was a threat to me.” Tr., Vol. 3 at 29. Schmidtz quoted Myers a
price per pill that was so inflated she thought “maybe they’ll go somewhere else
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and leave me alone.” Tr., Vol. 2 at 250. Instead, Myers said he would come by
the next day. Schmidtz felt like “a sitting duck, more or less, [because] they
were coming to get ‘em and that was that.” Id. When Myers arrived on May
24, Schmidtz thought Donovan might be waiting in the car and if she did not
sell Myers the pills, Myers would “go out and say ‘she won’t give ‘em to me’
and [Donovan] would come in and take ‘em and beat me up.” Tr., Vol. 3 at 3.
Schmidtz sold Myers thirteen pills. Unbeknownst to Schmidtz, Myers was
acting as a confidential informant for the police and when he visited Schmidtz
that day, he was wearing a recording device that captured audio and video of
the transaction.
[5] A jury found Schmidtz guilty of dealing as charged in the first phase of the trial.
Thereafter, the State presented evidence in the habitual offender phase, calling
the Chief Probation Officer for Sullivan County and introducing through her
certified records from three previous felony cases and one probation revocation
proceeding against “Amanda L. Schmidtz.” On the basis of this evidence, the
jury found the State had proved Schmidt to be an habitual offender.
[6] At Schmidtz’s sentencing hearing, her children testified about the hardship that
a lengthy sentence would be to their family and in particular, to Schmidtz’s
grandchildren. They also testified about Schmidtz’s troubled relationship with
Donovan. Schmidtz again testified about her relationship with Donovan and
how she felt Myers’s call was an implicit threat against her from Donovan. She
also testified that after her arrest, she worked as a confidential informant for the
police for several months and participated in several controlled buys. Schmidtz
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acknowledged that her criminal record “is not that good, I know that[, but]
when I actually did [those] offenses it was much farther in the past.” Tr., Vol. 3
at 153. Finally, Schmidtz testified that although she had trouble with alcohol
and drugs in the past, there was a lengthy period during which she had been
clean and sober until becoming involved with Donovan.
[7] The trial court acknowledged that Schmidtz did not have any convictions in the
four or five years preceding this case but noted that this case was Schmidtz’s
seventh felony conviction overall and “the Court has a real hard time getting
past that. To me that shows a disdain for the law, an inability or unwillingness
to abide by our laws here in this state.” Id. at 157. The trial court identified
Schmidtz’s criminal history as an aggravating factor and found no mitigating
factors. The trial court sentenced Schmidtz to twelve years in the Department
of Correction for the dealing conviction, enhanced by fifteen years for the
habitual offender finding, for a total sentence of twenty-seven years. Schmidtz
now appeals.
Discussion and Decision
I. Sufficiency of the Evidence
A. Standard of Review
[8] We consider a claim of insufficient evidence to support an habitual offender
finding the same as any sufficiency claim. See Woods v. State, 939 N.E.2d 676,
677 (Ind. Ct. App. 2010), trans. denied. Therefore, we consider only the
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probative evidence and reasonable inferences supporting the verdict. Drane v.
State, 867 N.E.2d 144, 146 (Ind. 2007). We do not reweigh the evidence or
judge witness credibility, as that is the factfinder’s role, and we will affirm the
adjudication unless no reasonable fact finder could find the elements of the
crime proven beyond a reasonable doubt. Id. Evidence is sufficient if an
inference may be reasonably drawn from it to support the judgment. Id. at 147.
B. Habitual Offender Status
[9] To establish that Schmidtz was an habitual offender, the State was required to
show that she had accumulated three prior unrelated felony convictions and,
because all the alleged predicate offenses were Class D felonies, that “not more
than ten (10) years have elapsed between the time [she] was released from
imprisonment, probation, or parole (whichever is latest) and the time [she]
committed the current offense.” Ind. Code § 35-50-2-8(d) (2015). Schmidtz
claims the evidence during the habitual offender phase of her trial was
insufficient to establish her identity as the person who committed the predicate
convictions alleged in the habitual offender count.
[10] Here, the State offered the following certified documents to prove that Schmidtz
was the same person convicted of the current offense as that convicted of the
alleged predicate offenses:
• As to Cause 3298: the information charging “Amanda L. Schmidtz”
with Class D felony operating a vehicle while intoxicated endangering a
person, the order accepting her plea of guilty and deferring the entry of
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judgment and sentencing while she participates in Drug Court, and the
sentencing order dated February 20, 2008, Tr., Vol. 1, Exhibit P at 25-32;
documents showing Cause 3298 prompted a revocation of her probation
in Sullivan County cause number 77D01-0309-FD-81 (“Cause 81”) after
Schmidtz appeared in Sullivan Superior Court and admitted to violating
the terms of her probation by being arrested and entering a Drug Court
agreement in Cause 3298, id., Exhibit Q at 33-41;
• As to Cause 85: the information charging “Amanda L. Schmidtz” with
Class D felony operating a vehicle as an habitual traffic violator, and the
sentencing order from June 17, 2011, that includes a probation
component, id., Exhibit R at 42-44;
• As to Cause 77: the information charging “Amanda L. Schmidtz” with
Class D felony escape, and the change of plea and sentencing order from
April 27, 2012, that includes a probation component, id., Exhibit S at 45-
47; and
• The testimony of Barbara Lance, chief probation officer in Sullivan
County, who testified that she knew Schmidtz even before she became a
probation officer, positively identified Schmidtz in court as the person
against whom she filed a revocation probation in Cause 81 for her
actions in Cause 3298, and positively identified her as “one and the
same” person referenced in Causes 85 and 77, Tr., Vol. 3 at 72.
[11] The State must introduce into evidence proper certified and authenticated
records of the defendant’s prior felony convictions in order to prove beyond a
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reasonable doubt the fact of those prior convictions for purposes of adjudicating
the defendant an habitual offender. Dexter v. State, 959 N.E.2d 235, 238 (Ind.
2012). Although certified copies of judgments or commitments containing the
same or similar name as the defendant may be introduced to prove the
commission of prior felonies, there must be additional supporting evidence to
identify the defendant as the same person named in the documents. Hernandez
v. State, 716 N.E.2d 948, 953 (Ind. 1999). This proof of identity may be in the
form of circumstantial evidence. Id. A sufficient connection between the
documents and the defendant is made if the evidence yields logical and
reasonable inferences from which the trier of fact may determine it was indeed
the defendant who was convicted of the two felonies alleged. Id.[12] Here, “Amanda L. Schmidtz,” date of birth March 27, 1969, was charged with
dealing in a schedule II controlled substance and alleged to be an habitual
offender. See Appendix, Volume 2 at 14, 71. The certified documents admitted
at trial to show prior felony convictions each name “Amanda L. Schmidtz” as
the defendant. The charging information in Cause 3298 shows the defendant’s
date of birth as March 27, 1969. Tr., Vol. 1, Exhibit P at 26. The sentencing
order in Cause 85 shows the defendant was forty-two years of age in June 2011.
Id., Exhibit R at 43. The sentencing order in Cause 77 shows the defendant was
forty-three years of age in April 2012. Id., Exhibit S at 46. Thus, the name and
date of birth/age of the defendant in each of those three prior felony cases are
consistent with Schmidtz.
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[13] Moreover, Lance testified to her familiarity with Schmidtz. As the chief
probation officer in Sullivan County, Lance handles “all the felon cases[.]” Tr.,
Vol. 3 at 64. Lance personally filed the petition to revoke in Cause 81 based on
the Vigo County charges in Cause 3298 and appeared in court for the
revocation hearing. Lance affirmed that “the Amanda Schmidtz that [was] on
probation [in Cause 81] in 2007 and . . . [the] person who is referenced in
[Cause 3298] is . . . in the courtroom today” and pointed her out. Id. at 68.1
Lance also affirmed that the person convicted in Causes 85 and 77 was
sentenced to probation in each case and that person and Schmidtz “are one and
the same person[.]” Id. at 70, 72. Lance’s testimony shows a familiarity with
Schmidtz and makes a sufficient connection between Schmidtz and the certified
documents. See Oster v. State, 992 N.E.2d 871, 877-78 (Ind. Ct. App. 2013)
(where certified documents introduced in habitual offender proceeding
contained “several different . . . names” that were “sufficiently similar to
support an inference that they refer to the same person” and a parole officer
testified that he had supervised the defendant and the defendant was the same
person named in the certified documents, the State produced sufficient evidence
to sustain finding that defendant was an habitual offender), trans. denied.
1
Schmidtz contends the admission of Exhibit Q, referencing Cause 81 which was not one of the charged
predicate offenses, was confusing and that the State attempted to use the probation revocation in Cause 81 as
proof of Cause 3298. The State introduced Exhibit Q in order to show how Lance was aware of Cause 3298
and able to identify Schmidtz as the perpetrator of that cause – the documents in Exhibit Q and Lance’s
testimony show Lance and Schmidtz were both in court for the probation revocation hearing in Cause 81
when Schmidtz admitted to the allegations of Cause 3298. This was necessary because Cause 3298
originated out of a different county.
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[14] The State produced sufficient evidence to prove Schmidtz’s identity as the
person convicted of three previous felonies and therefore, produced sufficient
evidence from which the jury could determine beyond a reasonable doubt that
Schmidtz is an habitual offender.
II. Sentencing
[15] Schmidtz states her sentencing issue as whether “the sentence imposed is an
abuse of the court’s discretion, and is inappropriate in light of the nature of the
offense, and the character of Appellant Schmidtz.” Amended Brief of
Appellant at 13. Her single argument commingles language applicable to both
abuse of discretion and inappropriate sentence analyses. The two are separate
inquiries and should be analyzed as such. See King v. State, 894 N.E.2d 265, 267
(Ind. Ct. App. 2008). We have therefore attempted to separate her arguments
on each issue and will address them in turn.
A. Abuse of Discretion
[16] Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868
N.E.2d 482, 490 (Ind. 2007). An abuse of discretion occurs if the 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. The trial court can abuse its discretion by 1) issuing an
inadequate sentencing statement, 2) finding aggravating or mitigating factors
that are not supported by the record, 3) omitting factors that are clearly
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supported by the record and advanced for consideration, 4) or by finding factors
that are improper as a matter of law. Laster v. State, 956 N.E.2d 187, 193 (Ind.
Ct. App. 2011).
[17] Schmidtz identifies several mitigating factors she believes were overlooked: 1)
her crime did not cause or threaten serious harm to other persons or property;
2) there are substantial grounds tending to excuse or justify her crime; 3) she
had led a law-abiding life for a substantial period of time before committing this
crime; and 4) her imprisonment would result in undue hardship to her family.
See Ind. Code § 35-38-1-7.1.2 The finding of a mitigating factor is discretionary,
and the trial court is neither obligated to accept the defendant’s argument as to
what constitutes a mitigating factor nor required to give the same weight to
mitigating evidence that the defendant would. Hunter v. State, 72 N.E.3d 928,
935 (Ind. Ct. App. 2017), trans. denied. Furthermore, if the trial court declines
to find the existence of a mitigating factor, it is not obligated to explain why it
has found that the factor does not exist. Anglemyer, 868 N.E.2d at 493. On
2
Schmidtz generally notes “[t]wo separate aspects of the sentencing in this case [that] present troubling
revelations.” Amended Br. of Appellant at 14. Schmidtz first alleges Lance “testified that her sentence
recommendations in general are based in part on whether or not a defendant pleads guilty or goes to trial.”
Id. In context, however, Lance simply indicated that taking responsibility is considered a mitigating factor
that she takes into account when making a sentencing recommendation. See Tr., Vol. 3 at 145. We see
nothing nefarious in this approach. Schmidtz next alleges the trial court’s remarks “indicate a philosophy
that, because [Schmidtz] exercised her right to trial, there would be no leniency in the sentence.” Amended
Br. of Appellant at 14. Again, in context, it appears the trial court was simply trying to clarify and
understand Schmidtz’s point when she testified about her time as a confidential informant and how she
believed the State “did [her] dirty[,]” and “gave [her] nothing for it.” Tr., Vol. 3 at 137-38. Moreover, the
trial court’s remarks recognize that any leniency that might be extended to someone who pleaded guilty
would not be applicable here. We do not believe the trial court’s remarks in context indicate a general
sentencing philosophy of punishing those who exercise their right to trial.
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appeal, a defendant must show “that the mitigating evidence is both significant
and clearly supported by the record.” Hunter, 72 N.E.3d at 935.
[18] Schmidtz has not shown that the proffered mitigating factors are significant or
clearly supported by the record. The fact that her crime did not cause or
threaten serious harm to other persons or property is not significant in light of
the crime alleged. Her defense of duress was presented to and rejected by the
jury and is therefore not supported by the record. The trial court acknowledged
the length of time that had passed between Schmidtz’s last conviction and this
crime, but also noted the number of convictions Schmidtz had accumulated
weighed more heavily. And finally, every family suffers some hardship when a
family member is incarcerated, but Schmidtz’s children and grandchildren do
not rely on her for financial support and will suffer no hardship greater than
that of any other convicted person’s family. The trial court did not abuse its
discretion in failing to find any mitigating factors.
B. Inappropriate Sentence
[19] We may review and revise criminal sentences pursuant to the authority derived
from Article 7, Section 6 of the Indiana Constitution. Indiana Appellate Rule
7(B) empowers us to revise a sentence “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.” Because a trial court’s
judgment “should receive considerable deference[,]” Cardwell v. State, 895
N.E.2d 1219, 1222 (Ind. 2008), our principal role is to “leaven the outliers,” id.
at 1225. “Such deference should prevail unless overcome by compelling
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evidence portraying in a positive light the nature of the offense (such as
accompanied by restraint, regard, and lack of brutality) and the defendant’s
character (such as substantial virtuous traits or persistent examples of good
character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The defendant
bears the burden of persuading this court that his or her sentence is
inappropriate, Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006), and we may
look to any factors appearing in the record for such a determination, Stokes v.
State, 947 N.E.2d 1033, 1038 (Ind. Ct. App. 2011), trans. denied. 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,
894 N.E.2d at 268. Whether a sentence is inappropriate “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.” Cardwell,
895 N.E.2d at 1224.
[20] The nature of the offense references a defendant’s actions in comparison with
the elements of the offense. Cannon v. State, 99 N.E.3d 274, 280 (Ind. Ct. App.
2018), trans. denied. The nature of the offense can be analyzed by using the
advisory sentence as a starting point. Anglemyer, 868 N.E.2d at 494. The
sentencing range for dealing in a schedule II controlled substance, a Level 4
felony, is two to twelve years, with an advisory sentence of six years. Ind. Code
§ 35-50-2-5.5.
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[21] Schmidtz does not dispute that she sold thirteen of her prescription Norco pills
to Myers. Norco3 is a basically an “opiate with Tylenol,” tr., vol. 2 at 144, that
can be “very addictive[,]” id. at 142. Her offense was elevated from a Level 6
felony to a Level 4 felony because she sold at least five grams but less than ten
grams of the drug. Ind. Code § 35-48-4-2(a)(1)(C), (d)(1). The trial court noted
that the video tape of the deal shows Schmidtz “laughing, . . . cackling, . . .
someone selling drugs there because they wanted to and not because they were
under duress.” Tr., Vol. 3 at 157. Indeed, Schmidtz was selling to someone she
knew and alleged that if she did not sell the pills, she believed they would be
stolen from her. But Schmidtz did not call the police to report the supposed
threat or alert them to the coming transaction, and she willingly set an inflated
price. Schmidtz has shown no compelling evidence portraying her offense in a
positive light and therefore, we cannot say the nature of her offense warrants a
different sentence.
[22] The character of the offender refers to “general sentencing considerations and
the relevant aggravating and mitigating circumstances.” Cannon, 99 N.E.3d at
280. In conducting our review, we consider the aggravating and mitigating
factors found by the trial court, but also any other factors appearing in the
record. Walters v. State, 68 N.E.3d 1097, 1101 (Ind. Ct. App. 2017), trans.
denied. One relevant factor in considering the character of the defendant is
3
Norco and Vicodin are among the brand names for hydrocodone acetaminophen. Tr., Vol. 2 at 141, 143.
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criminal history. Wells v. State, 2 N.E.3d 123, 131 (Ind. Ct. App. 2014), trans.
denied.
[23] Schmidtz has a criminal record dating back to 1995. The majority of her
criminal convictions – three misdemeanor and six felony convictions prior to
this case – are substance abuse related. Lance testified at the sentencing hearing
that Schmidtz was not a good candidate for a shorter sentence or a community
corrections or probationary sentence because “[s]he does not do well on
probation, she’s been revoked twice, she’s violated [her current] bond.” Tr.,
Vol. 3 at 143. Schmidtz violated her current bond by being charged in two
additional cases after being charged in this case; the trial court dismissed those
cases on the State’s motion when it sentenced Schmidtz in this case. See
Appealed Order at 2. Participating in additional criminal conduct even while in
the midst of being prosecuted for this offense does not reflect well on
Schmidtz’s character.
[24] Schmidtz does not offer clear examples of her good character. She mentions
her good relationship with her grandchildren and references her work as a
confidential informant. She argues that there were substantial grounds to
excuse or justify her actions. None of these things amount to compelling
evidence that her character is so virtuous or consistently positive as to overcome
her criminal history and current actions.
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[25] Schmidtz has not met her burden of persuading us that her sentence is
inappropriate in light of the nature of her offense and her character. Her
twenty-seven-year aggregate sentence is therefore affirmed.
Conclusion
[26] The State presented sufficient evidence to show Schmidtz had committed three
prior unrelated felonies and to prove that she was an habitual offender. The
trial court did not abuse its discretion in sentencing Schmidtz and her sentence
is not inappropriate. We therefore affirm the habitual offender finding and
Schmidtz’s sentence.
[27] Affirmed.
Mathias, J., and Pyle, J., concur.
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