Regina Choice v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Apr 15 2014, 10:08 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHELLE F. KRAUS GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
REGINA CHOICE, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1306-CR-227
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D05-1109-FD-1167
April 15, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Regina Choice appeals her two-year sentence for theft, as a Class D felony.
Choice raises two issues for our review:
1. Whether the trial court abused its discretion when it ordered Choice
to serve two years in the Department of Correction (“DOC”); and
2. Whether Choice’s sentence is inappropriate in light of the nature of
the offense or her character.
We affirm.
FACTS AND PROCEDURAL HISTORY
On August 28, 2011, Choice stole $114.82 worth of groceries from an Allen
County Kroger store. The State charged her with theft, as a Class D felony, which carries
a penalty of six months to three years incarceration. At the time of the offense, Choice
was out on bond for a prior act of theft she had committed on July 28. Choice pleaded
guilty to both charges, which were under different cause numbers, and the court placed
her into the Drug Court Diversion Program on October 31. Choice failed that program a
few months later and the court sentenced her to two years executed in the DOC. This
appeal ensued.
DISCUSSION AND DECISION
Issue One: Abuse of Discretion in Sentencing
Choice first contends that the trial court abused its discretion when it sentenced
her to two years in the DOC. 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), clarified on other grounds on reh’g, 875 N.E.2d
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218 (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.
One way in which a trial court may abuse its discretion is failing to enter a
sentencing statement at all. Other examples include entering a sentencing
statement that explains reasons for imposing a sentence—including a
finding of aggravating and mitigating factors if any—but the record does
not support the reasons, or the sentencing statement omits reasons that are
clearly supported by the record and advanced for consideration, or the
reasons given are improper as a matter of law . . . .
[However, b]ecause the trial court no longer has any obligation to
“weigh” aggravating and mitigating factors against each other when
imposing a sentence, . . . a trial court cannot now be said to have abused its
discretion in failing to “properly weigh” such factors.
Id. at 490-91 (emphasis added). In other words, “[t]he relative weight or value assignable
to reasons properly found or those which should have been found is not subject to review
for abuse.” Id. at 491.
Here, Choice argues that the trial court abused its discretion when it sentenced her
because the weight the court gave to Choice’s criminal history “is not outweighed by the
significant mitigating circumstances found by the trial court.” Appellant’s Br. at 4. But,
as our Supreme Court held in Anglemyer, we cannot say that a trial court abuses its
discretion when it weighs aggravating and mitigating factors. 868 N.E.2d at 490-91.
Thus, the trial court did not abuse its discretion when it sentenced Choice.
Issue Two: Inappropriate Sentence
Choice also contends that her sentence is inappropriate in light of the nature of the
offense and her character. Although a trial court may have acted within its lawful
discretion in determining a sentence, Article VII, Sections 4 and 6 of the Indiana
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Constitution “authorize[] independent appellate review and revision of a sentence
imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007)
(alteration original). This appellate authority is implemented through Indiana Appellate
Rule 7(B). Id. Revision of a sentence under Appellate Rule 7(B) requires the appellant
to demonstrate that her sentence is inappropriate in light of the nature of her offense and
her character. See App. R. 7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App.
2007). We assess the trial court’s recognition or non-recognition of aggravators and
mitigators as an initial guide to determining whether the sentence imposed was
inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a
defendant must persuade the appellate court that his or her sentence has met th[e]
inappropriateness standard of review.” Roush, 875 N.E.2d at 812 (alteration original).
And our supreme court has stated that “sentencing is principally a discretionary
function in which the trial court’s judgment should receive considerable deference.”
Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). Indiana’s flexible sentencing
scheme allows trial courts to tailor an appropriate sentence to the circumstances
presented. See id. at 1224. The principal role of appellate review is to attempt to “leaven
the outliers.” Id. at 1225. 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.
Choice’s two-year sentence is not inappropriate in light of the nature of the
offense or her character. We acknowledge that the instant offense was a relatively minor
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act of theft and that Choice quickly pleaded guilty to the State’s charge. But Choice also
has a vast criminal history that consists of seventeen misdemeanor convictions and six
felony convictions, including convictions for prostitution, false informing, and escape, as
well as multiple convictions for theft and conversion. She has repeatedly failed to change
her criminal lifestyle, including committing the instant offense of theft while out on bond
for another offense of theft. And when the trial court here granted Choice the opportunity
to avoid incarceration by successfully completing a program with the Drug Court, Choice
failed to take advantage of that opportunity. Moreover, Choice received a two-year
sentence for a Class D felony, which carries a maximum possible term of three years.
Thus, we cannot say that Choice’s sentence is inappropriate and requires our intervention.
We affirm her sentence.
Affirmed.
VAIDIK, C.J., and BROWN, J., concur.
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