Anna M. Bischoff v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 25 2019, 10:03 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jennifer A. Joas Curtis T. Hill, Jr.
Madison, Indiana Attorney General
George P. Sherman
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anna M. Bischoff, March 25, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2565
v. Appeal from the Ripley Circuit
Court
State of Indiana, The Honorable Ryan J. King,
Appellee-Plaintiff Judge
Trial Court Cause No.
69C01-1712-F2-11
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2565 | March 25, 2019 Page 1 of 5
Case Summary
[1] Anna M. Bischoff pled guilty to Level 3 felony dealing in methamphetamine.
The trial court sentenced her to fourteen years, with twelve years to serve and
two years suspended to probation. Bischoff appeals her sentence, arguing that
it is inappropriate in light of the nature of her offense and her character. We
disagree and affirm.
Facts and Procedural History
[2] On December 6, 2017, Kenneth Cardinal was arrested at his house. The next
day, a concerned citizen called the police to report that two people were at
Cardinal’s house even though he was in jail. The police went to Cardinal’s
house and found Bischoff and another woman inside. After obtaining a search
warrant, the police found hypodermic needles, digital scales, and a glass
smoking pipe in Bischoff’s bag. Bischoff then directed the police to a container
of multiple baggies of meth weighing a total of 31.67 grams. Tr. p. 31.
[3] The State charged Bischoff with four counts: Count I, Level 2 felony dealing in
methamphetamine (enhanced from a Level 5 felony because the amount of the
drug was at least ten grams); Count II, Level 3 felony possession of
methamphetamine (enhanced from a Level 6 felony because the amount of the
drug was at least twenty-eight grams); Count III, Level 6 felony possession of a
hypodermic needle; and Count IV, Class C misdemeanor possession of
paraphernalia. Thereafter, the State and Bischoff entered into a plea agreement
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whereby Bischoff would plead guilty to Count I, reduced to a Level 3 felony (at
least five grams), and the State would dismiss Counts II-IV. Sentencing was left
to the discretion of the trial court.
[4] At sentencing, the thirty-seven-year-old Bischoff testified that when she was
arrested in this case, she had been using three to five grams of meth every day
for three years and that being arrested that December day “sav[ed] [her] life.”
Id. at 20. She explained that in the 292 days she had been in jail awaiting
resolution of this case, she had “sober[ed] up” and gained weight, and her
memory was coming back. Id. at 21. She asked the trial court for “a chance to
get better [and] to get help.” Id.
[5] The trial court identified four aggravators: (1) Bischoff had over thirty grams of
meth, which was “far in excess” of what was required to prove the Level 3
felony (at least five grams) and entitled to “substantial weight”; (2) Bischoff was
on probation for Class A misdemeanor domestic battery when she committed
the offense in this case, which was entitled to “substantial weight”; (3) Bischoff
did not express remorse during her PSI interview (although she appeared to
express “genuine remorse” at the sentencing hearing), which was entitled to
“only slightly aggravating” weight; and (4) Bischoff has a criminal history
(misdemeanor disorderly conduct, OWI, and domestic battery), which was
entitled to “only slightly aggravating” weight because it was “unrelated and
misdemeanant in nature.” Appellant’s App. Vol. II p. 40. The trial court did
not identify any mitigators. It acknowledged that Bischoff pled guilty but found
that the plea agreement—specifically, the reduced charge for Count I—“greatly
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reduced [her] prison exposure.” Id. The court sentenced Bischoff to fourteen
years, with two years suspended to probation.
[6] Bischoff now appeals her sentence.
Discussion and Decision
[7] Bischoff contends that her sentence is inappropriate and asks us to revise it
pursuant to Indiana Appellate Rule 7(B), which 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.” 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. Cardwell v. State, 895 N.E.2d 1219,
1224 (Ind. 2008). Because we generally defer to the judgment of trial courts in
sentencing matters, defendants bear the burden of persuading us that their
sentences are inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind. Ct.
App. 2016).
[8] Regarding the nature of the offense, Bischoff pled guilty to a Level 3 felony, for
which the sentencing range is three to sixteen years with an advisory sentence
of nine years. See Ind. Code § 35-50-2-5(b). However, she very well could have
been convicted of a Level 2 felony, for which the sentencing range is ten to
thirty years with an advisory sentence of seventeen-and-a-half years. Ind. Code
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§ 35-50-2-4.5. Indiana Code section 35-48-4-1.1 provides that a person who
possesses at least ten grams of methamphetamine with intent to deliver commits
a Level 2 felony. Bischoff had more than thirty grams of meth. Indeed,
“Bischoff does not dispute that she was in possession of methamphetamine in
an amount far greater than necessary to prove her offense.” Appellant’s Br. p.
10. Bischoff’s fourteen-year sentence with two years suspended to probation is
not inappropriate in light of the nature of her offense.
[9] As for Bischoff’s character, we acknowledge that she has “a limited
misdemeanor criminal history bearing no relation to the offense for which she
was convicted.” Id. at 11-12. But she was on probation for domestic battery at
the time of this offense. And although Bischoff has no prior felony convictions,
she admitted using three to five grams of meth every day for three years. It is
likely fortuitous that she was not arrested before this incident. Finally, while it
is true that Bischoff appeared to express remorse at the sentencing hearing, the
trial court found that this expression was offset by her statements in the PSI that
she was simply “in the wrong place at the wrong time.” Appellant’s App. Vol.
II pp. 27, 40. Bischoff has failed to persuade us that her sentence of fourteen
years with two years suspended to probation is inappropriate under the
circumstances.
[10] Affirmed.
Mathias, J., and Crone, J., concur.
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