Bobbi Jo Carter v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jun 15 2016, 7:47 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Small Gregory F. Zoeller
Indianapolis, Indiana Attorney General
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bobbi Jo Carter, June 15, 2016
Appellant-Defendant, Court of Appeals Case No.
21A01-1601-CR-173
v. Appeal from the Fayette Circuit
Court
State of Indiana, The Honorable Beth A. Butsch
Appellee-Plaintiff Trial Court Cause No.
21C01-1501-F4-90
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 21A01-1601-CR-173 | June 15, 2016 Page 1 of 5
Case Summary
[1] Bobbi Jo Carter sold about half a gram of heroin to an informant in the
presence of her friend’s four-year-old daughter. Carter pled guilty to Level 4
felony dealing in a narcotic drug and Class A misdemeanor taking a minor to a
common nuisance. The trial court sentenced Carter to concurrent terms of
eight and a half years for the Level 4 felony and one year for the Class A
misdemeanor.
[2] Carter now appeals, arguing that her sentence is inappropriate. Finding that the
sentence is not inappropriate in light of the nature of the offenses and her
character, we affirm.
Facts and Procedural History
[3] On the evening of January 28, 2015, Carter’s friend drove Carter to a
confidential informant’s house in Connersville. The friend’s four-year-old
daughter was in the back seat of the car. When they arrived at the house,
Carter sold about half a gram of heroin to the informant in the driveway.
Carter returned to the car, and the friend drove away. The police, who had
been monitoring the transaction, stopped them shortly thereafter.
[4] The State charged Carter with Count I, Level 4 felony dealing in a narcotic
drug in the physical presence of a child less than eighteen years of age, and
Court of Appeals of Indiana | Memorandum Decision 21A01-1601-CR-173 | June 15, 2016 Page 2 of 5
Count II, Class A misdemeanor taking a minor to a common nuisance. Carter
pled guilty to both charges without a plea agreement, with sentencing to be
determined by the trial court.
[5] At the sentencing hearing, Carter testified about traumatic events that had
occurred in her life, including witnessing her boyfriend’s suicide and being
raped by her step-father. Carter also testified that she had used alcohol and
drugs since age fourteen, completed a recovery program while in jail for these
crimes, and had checked herself out of a drug-treatment center one month
before these crimes. Carter admitted buying about seven grams of heroin daily
from Dayton, Ohio. She would then use five of these grams herself and sell the
other two grams in her community. At the conclusion of the sentencing
hearing, the trial court found two aggravating factors: (1) Carter distributed
heroin into the community “every day,” Tr. p. 95, and (2) Carter had a history
of criminal or delinquent behavior, including two juvenile adjudications for
escape, felony convictions for unlawful possession of precursors and receiving a
stolen vehicle, and one misdemeanor conviction for driving while suspended.
The court found no mitigating factors. The court sentenced Carter to eight and
a half years for Count I and one year for Count II, to be served concurrently.
[6] Carter now appeals her sentence.
Discussion and Decision
Court of Appeals of Indiana | Memorandum Decision 21A01-1601-CR-173 | June 15, 2016 Page 3 of 5
[7] Carter contends that her aggregate sentence of eight and a half years is
inappropriate in light of the nature of the offenses and her character. Indiana
Appellate Rule 7(B) provides that an appellate court “may 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.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct.
App. 2008). Because we generally defer to the judgment of trial courts in
sentencing matters, Norris v. State, 27 N.E.3d 333, 335-36 (Ind. Ct. App. 2015),
defendants have the burden of persuading us that their sentences are
inappropriate, Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014).
“Whether a sentence is inappropriate ultimately turns on the culpability of the
defendant, the severity of the crime, the damage done to others, and a myriad
of other factors that come to light in a given case.” Id. (citing Cardwell v. State,
895 N.E.2d 1219, 1224 (Ind. 2008)).
[8] On Count I, a Level 4 felony, Carter faced a sentencing range of two to twelve
years, with an advisory sentence of six years. Ind. Code § 35-50-2-5.5. On
Count II, a Class A misdemeanor, Carter faced a sentence of up to one year.
Ind. Code § 35-50-3-2. The trial court imposed concurrent sentences of eight
and a half years for Count I and one year for Count II.
[9] Concerning the nature of the offenses, although Carter sold heroin to an
informant during a supervised buy, the child who was present was much
younger than eighteen years old. Furthermore, Carter’s character convinces us
that her sentence is not inappropriate. Carter has felony convictions for
Court of Appeals of Indiana | Memorandum Decision 21A01-1601-CR-173 | June 15, 2016 Page 4 of 5
unlawful possession of precursors and receiving a stolen vehicle, a
misdemeanor conviction for driving while suspended, and two juvenile
adjudications for escape. Although Carter completed a recovery program while
in jail for the crimes in this case, she checked herself out of a drug-treatment
center one month before these crimes. As the trial court noted, Carter, on a
daily basis, brought about seven grams of heroin from Dayton, Ohio, and sold
two of these grams into her local community. Despite her previous contacts
with the criminal-justice system and opportunities for rehabilitation, Carter has
not been deterred from criminal activities. Her character does not warrant a
reduction in her sentence.
[10] After due consideration of the trial court’s decision, we cannot say that Carter
persuaded us that her aggregate sentence of eight and a half years is
inappropriate in light of the nature of the offenses and her character.
[11] Affirmed.
Barnes, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 21A01-1601-CR-173 | June 15, 2016 Page 5 of 5