Theresa Pressinell v. State of Indiana ( 2013 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
FILED
Feb 01 2013, 9:02 am
any court except for the purpose of
establishing the defense of res judicata, CLERK
collateral estoppel, or the law of the case. of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ELIZABETH A. BELLIN GREGORY F. ZOELLER
Cohen Law Offices Attorney General of Indiana
Elkhart, Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
THERESA PRESSINELL, )
)
Appellant-Defendant, )
)
vs. ) No. 20A03-1206-CR-267
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ELKHART CIRCUIT COURT
The Honorable Terry C. Shewmaker, Judge
Cause No. 20C01-0605-FA-39
February 1, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
SHEPARD, Senior Judge
Appellant Theresa Pressinell pled guilty to two counts of dealing in
methamphetamine, and the trial court sentenced her to concurrent terms of thirty-five
years. She asks us to review and revise her sentence. We affirm.
FACTS AND PROCEDURAL HISTORY
An individual cooperating with the Elkhart County Interdiction and Covert
Enforcement Unit made two controlled buys from Pressinell during April and May 2006.
This individual had been working with the authorities for some time and had purchased
meth from Pressinell in the past.
Based on these two purchases, the police obtained a search warrant for Pressinell’s
home. Executing the warrant proved something of a challenge. The occupants would not
open the door, and the police found it necessary to use a ram. Once inside, they found
numerous clear plastic bags containing altogether some twenty-three grams of meth,
which Pressinell acknowledged were hers. The officers also discovered digital scales
and multiple items of paraphernalia. They arrested Pressinell at the scene.
The State filed three counts: two class A felony counts alleging dealing in meth
and one class B felony count also alleging dealing in meth. In accordance with an
agreement, Pressinell pled guilty to the two class A charges, in return for dismissal of the
class B charge and the promise that the penalties for the two counts would be concurrent
and capped at thirty-five years.
ISSUE
Was the penalty of thirty-five-year concurrent sentences inappropriate?
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DISCUSSION AND DECISION
Pressinell seeks reduction of her sentence, citing this Court’s authority to review
and revise a sentence when an appellant demonstrates that the sentence is inappropriate in
light of the nature of the offense and the character of the offender. Ind. Appellate Rule
7(B). In assessing such a claim, we consider the culpability of the offender, the severity
of the crime, the injury or damage done to others, and anything else that might be
relevant. Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008).
The trial court’s sentencing order described the circumstances it deemed important
to the ultimate sentence. The court noted the defendant’s previous criminal record: one
failure to appear, two misdemeanors, and one felony. This last conviction was, like the
current ones, for a meth offense, and she had been given a ten-year suspended sentence
with two years of probation. The court observed that the probation afforded the
defendant had been wholly unsuccessful.
The court also noted that the defendant had been conducting her meth business in
a home where two juveniles lived (indeed, it was Pressinell’s thirteen-year-old son who
first approached the door when the police came to the home). It observed that the
defendant had an addiction problem and it recognized her acceptance of responsibility,
but the court concluded that all things considered the appropriate sentence was just above
the thirty-year advisory sentence embodied in the Code for class A felonies. Ind. Code §
35-50-2-4 (2005).
Pressinell contends that the purchaser who was cooperating with the police was
motivated by the chance to mitigate his own legal problems, taking advantage of what he
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knew to be her addiction. She also says that there was no evidence she was selling to
persons other than the purchaser in this case. Appellant’s Br. p. 10. This contention that
the trial court wrongly omitted mitigating circumstances is analyzed in accordance with
abuse of discretion. Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified on reh’g,
875 N.E.2d 218 (2007). The State replies that there was no evidence presented at the
sentencing hearing on these points, only argument by counsel. See Tr. pp. 37-38. As far
as whether Pressinell was selling only to this purchaser, the evidence indicates she was
supplying meth to a dealer and dealing to numerous individuals in the Goshen area.
Appellant’s App. p. 60. In any event, the trial court could well have regarded the volume
of meth in the home and its existence in a good many packages as contradicting her
claim. We see no abuse of discretion as respects the trial court’s findings on this point.
Counsel also urges that appellant’s acceptance of responsibility and her relapse
into the world of drugs are grounds for a reduced sentence. The trial court, of course, did
explicitly take these into account in determining the sentence.
The range of sentencing available for these two class A offenses was twenty to
fifty years, with the advisory sentence at thirty. We are not persuaded that the trial
court’s imposition of thirty-five years was inappropriate.
CONCLUSION
We affirm the judgment of the trial court.
MAY, J., and BRADFORD, J., concur.
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