Erica S. Mays v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 28 2019, 6:35 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
Scott H. Duerring Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Erica S. Mays, October 28, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1157
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff. Judge
Trial Court Cause No.
71D03-1704-F6-370
71D03-1708-F6-750
71D03-1710-F6-988
Najam, Judge.
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Statement of the Case
[1] Erica S. Mays appeals her aggregate sentence of seven and one-half years
following her convictions, across three cause numbers, for two counts of Level
6 felony theft; possession of cocaine, as a Level 6 felony; criminal trespass, as a
Class A misdemeanor; false informing, as a Class B misdemeanor; and two
counts of Class C misdemeanor possession of paraphernalia. Mays raises a
single issue for our review, namely, whether her sentence is inappropriate in
light of the nature of the offenses and her character. We affirm.
Facts and Procedural History 1
[2] On April 23, 2017, the manager of the Sam’s Club in Mishawaka, Lindsey
Harris, observed Mays leave the store with two 1.5-liter bottles of liquor
without having paid for them. Harris reported the theft to local police officers
and gave them surveillance video of the theft. Officers later located Mays with
the two liquor bottles at a nearby gas station, and they arrested her. Mays gave
the officers several false names while they were attempting to talk to her.
Thereafter, in cause number 71D03-1704-F6-370 (“Cause No. F6-370”), the
State charged Mays in relevant part with theft, as a Level 6 felony, and false
informing, as a Class B misdemeanor.
1
We remind Mays’ counsel that Indiana Appellate Rule 50(B)(1)(a) requires the inclusion of each appealed
cause number’s full chronological case summary in the Appellant’s Appendix.
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[3] While the State’s charges against Mays in Cause No. F6-370 were pending, on
August 17, South Bend Police Department officers received a report that Mays,
who was wanted on outstanding warrants, was near a local Target department
store. Officers located Mays at a gas station near that store, and, while placing
her under arrest, they discovered a glass pipe and a baggie of cocaine on her
person. Under cause umber 71D01-1708-F6-750 (“Cause No. F6-750”), the
State charged Mays with possession of cocaine, as a Level 6 felony, and
possession of paraphernalia, as a Class C misdemeanor.
[4] In October, Catherine Wilder, a loss prevention officer at a Meijer store in
South Bend, observed Mays enter the store despite no longer being allowed
there. Wilder called the police to report that Mays was trespassing. While
Wilder was escorting the responding police officer to Mays’ location in the
store, Wilder observed Mays “quickly dart[]” among some merchandise,
“duck[] down,” and “remov[e] items from her purse.” Tr. Vol. 3 at 78. Wilder
recognized the removed items as unpurchased Meijer’s merchandise. And, in
arresting Mays, the arresting officer discovered a glass pipe in her purse. Under
cause number 71D02-1710-F6-988 (“Cause No. F6-988”), the State charged
Mays in relevant part with theft, as a Level 6 felony; criminal trespass, as a
Class A misdemeanor; and possession of paraphernalia, as a Class C
misdemeanor.
[5] Following guilty verdicts in each cause number, the trial court entered
judgments of conviction against Mays for the above-stated offenses. In May of
2019, the court held a consolidated sentencing hearing. After hearing the
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parties’ arguments and evidence at that hearing, the court recited Mays’
criminal history as follows:
[L]ooking at your [criminal] history, ma’am, we go back to 1990.
You had a Prostitution [conviction]. You had a Burglary in ’91
where a [petition to revoke probation, or “PTR”] was filed. In
’96 you had a Prostitution [conviction]. In ’97 you had
Possession of Paraphernalia twice. Then you had Possession of
Cocaine, and there was a PTR filed in that which was dismissed.
Criminal Trespass. In ’98, you had a Prostitution, Resisting. In
’99 you had a False Informing, Resisting, Prostitution, and a
Habitual Offender. A PTR was filed twice. In 2000 you had a
Possession that was a misdemeanor. In 2001 you had a
Resisting. In 2003 you had . . . some sort of traffic offense . . . .
Prostitution as a D felony where a PTR was filed. Criminal
Conversion, 2004. Possession of Cocaine, 2006. 2007 you had a
Criminal Conversion where a PTR was filed but withdrawn
pursuant to a plea. Driving Never Having a License, Possession
of Cocaine. That was in 2007. In 2009 you had Criminal
Conversion, Theft. There was a parole violation. 2011 you had
a Theft as a Class A misdemeanor. It appears you may have a
Theft from 2013 that’s pending. A Conversion, another
Conversion, a Battery, Possession of Paraphernalia all in 2013.
2014, you had [T]heft, and you had a parole violation. In 2015
you had Possession of Paraphernalia, Driving While Suspended.
And in 2017 you had . . . all these cases . . . . And then you had
[an] Elkhart case which I guess you’ve already done. So you
have a long, long record, ma’am.
Tr. Vol. 3 at 145-46.
[6] “[B]ased on that” criminal history, the trial court ordered Mays to serve an
aggregate term of seven and one-half years across the three cause numbers. Id.
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at 146. However, in its written sentencing order, the court further stated as
follows:
[Mays] has a history of substance abuse and chemical addiction
and dependency, and [she] appears to be an appropriate
candidate for the [Department of Correction’s] Recovery While
Incarcerated. Court recommends that [Mays] be evaluated for
and considered for Recovery While Incarcerated. Upon
successful completion of the clinically appropriate substance
abuse treatment program as determined by [the Department of
Correction], the Court will consider a modification to this
sentence. Court will not consider a modification of th[is]
sentence[] until [Mays] has completed two years incarceration.
Appellant’s App. Vol. 2 at 198. This appeal ensued.
Discussion and Decision
[7] Mays asserts that her aggregate sentence of seven and one-half years is
inappropriate under Indiana Appellate Rule 7(B). Indiana Appellate Rule 7(B)
provides that “[t]he 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.” This Court has often recognized that “[t]he advisory sentence is the
starting point the legislature has selected as an appropriate sentence for the
crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017).
And the Indiana Supreme Court has explained that “[t]he principal role of
appellate review should be to attempt to leaven the outliers . . . but not achieve
a perceived ‘correct’ result in each case. Defendant has the burden to persuade
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us that the sentence imposed by the trial court is inappropriate.” Shoun v. State,
67 N.E.3d 635, 642 (Ind. 2017) (citations omitted; omission in original).
[8] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.
2008). Whether we regard a sentence as inappropriate 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 facts that come to light in a given
case.” Id. at 1224. The question 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). Deference to the trial court
“prevail[s] unless overcome by compelling 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).
[9] Mays asserts that her sentence is inappropriate in light of the nature of the
offenses because the crimes underlying each of the three cause numbers
“occurred over a . . . seven-month time frame,” which, according to Mays, was
for “all intents and purposes . . . a crime spree with a series of crimes being
committed prior to the criminal justice system’s ability to address the behavior
of [the] individual.” Appellant’s Br. at 10. She further asserts that “the actual
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harm done . . . was minimal” because “no one was injured” and “all of the
property involved in the thefts was returned . . . .” Id.
[10] But we cannot say that Mays’ sentence is inappropriate in light of the nature of
the offenses. In Cause No. F6-270, Mays lied to investigating police officers
about her identity. In Cause No. F6-750, she was apprehended on outstanding
warrants and found to be in possession of cocaine and a glass pipe. In Cause
No. F6-988, she attempted to steal merchandise from a store that had
previously prohibited her from being there, and when she was apprehended
there she again was in possession of a glass pipe. And while we disagree with
Mays’ characterization of the numerous offenses underlying the three cause
numbers as a single “crime spree,” it is relevant, and not favorable to Mays,
that she committed the crimes underlying Cause No. F6-750 while the charges
against her in Cause No. F6-270 were pending, and that she committed the
crimes underlying Cause No. F6-988 while each of the other two cause
numbers were pending. We cannot say that Mays’ sentence is inappropriate in
light of the nature of the offenses.
[11] Mays also asserts that her aggregate sentence is inappropriate in light of her
character because “she suffered from an ongoing substance abuse illness.” Id.
Although not referenced by Mays in her argument on appeal, we note that, in a
recent per curiam opinion, the Indiana Supreme Court considered a term of
incarceration for a defendant who had had “multiple drug-related contacts with
the criminal justice system over many years” but had “yet to receive court-
ordered substance abuse treatment.” Hoak v. State, 113 N.E.3d. 1209, 1209
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(Ind. 2019) (per curiam) (quotation marks omitted). Our Supreme Court
remanded for the trial court “to determine whether [the defendant] is eligible for
substance abuse treatment in a Community Corrections placement; and[,] if she
is eligible, to order half of her sentence to be executed in Community
Corrections.” Id. at 1209-10.
[12] But Hoak is not applicable here, where the trial court expressly ordered Mays to
be evaluated for a clinically appropriate substance abuse treatment program for
her to complete, or attempt to complete, during her incarceration with the
Department of Correction. The court even stated that Mays would have the
opportunity to seek a sentence modification after just two years of incarceration
if she successfully completes such a program. Thus, the trial court has taken
Mays’ substance abuse issues into account, and we cannot say that Mays’
sentence is inappropriate given the trial court’s consideration of her substance
abuse. Neither is it inappropriate in light of her character more generally:
Mays’ “long, long [criminal] record,” including her repeated failures to abide by
the terms and conditions of numerous prior placements on probation and
parole, speaks poorly of her character. Tr. Vol. 3 at 146.
[13] Accordingly, we cannot say that Mays’ sentence is inappropriate in light of the
nature of the offenses and her character, and we affirm her sentence.
[14] Affirmed.
Bailey, J., and May, J., concur.
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