Mandy Little v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata, Jul 05 2012, 9:14 am
collateral estoppel, or the law of the
case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
EVAN B. BRODERICK GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
JOSEPH Y. HO
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MANDY LITTLE, )
)
Appellant-Defendant, )
)
vs. ) No. 48A04-1110-CR-592
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable David A. Happe, Judge
Cause No. 48D04-1103-FD-481
July 5, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Judge
STATEMENT OF THE CASE
Mandy Little appeals her sentence following a plea of guilty to class D felony
operating a vehicle while intoxicated.1
We affirm.
ISSUE
Whether Little’s sentence is inappropriate pursuant to Indiana Appellate Rule 7(B).
FACTS
On March 19, 2011, an Anderson police officer received a dispatch regarding a
possibly intoxicated driver. The officer subsequently observed Little fail to stop at a stop
sign and therefore initiated a traffic stop of Little. The officer noted that Little had a pill
bottle of Xanax in her lap. Little failed multiple field sobriety tests, and a chemical test
later revealed that she had a blood-alcohol content of .09 percent.
On March 21, 2011, the State charged Little with Count 1, operating a vehicle
with a blood-alcohol content greater than .08 percent but less than .15 percent, a class C
misdemeanor; and Count 2, operating a vehicle while intoxicated as a class D felony. On
May 20, 2011, the State filed an amended information, alleging Little to be an habitual
substance offender. On June 22, 2011, however, the State filed a motion to dismiss the
habitual substance offender allegation, which the trial court granted.
Subsequently, the State and Little entered into a plea agreement, whereby Little
agreed to plead guilty to Count 2, and the State agreed to dismiss Count 1. As to
1
Ind. Code § 9-30-5-3.
2
sentencing, the parties agree to a total sentence of twenty-four months, with no more than
eighteen months to be executed and the trial court to determine Little’s placement.
The trial court held a guilty plea hearing on August 29, 2011, after which the trial
court ordered a presentence investigation report (“PSI”). The trial court accepted the
guilty plea and held a sentencing hearing on October 4, 2011.
According to the PSI, Little had been convicted twice of public intoxication in
Randolph County in 2008. The PSI also showed that on June 8, 2009, Little was
convicted of class B felony dealing a narcotic drug and class C felony neglect of a
dependent in Delaware County under Cause Number 18C02-0803-FB-008 (“Cause No.
008”). The trial court in that case sentenced Little to three years in the Department of
Correction (the “DOC”), a sentence which it stayed pending Little’s successful
completion of the Delaware County Forensic Diversion Program, also known as Drug
Court. On September 21, 2009, however, the State filed a violation of Drug Court after
Little was convicted of class D felony operating a vehicle while intoxicated, endangering
a person, in Delaware County under Cause Number 18C01-0909-FD-100. Thereafter, on
February 1, 2010, the trial court reinstated Little’s placement in Drug Court. Following
Little’s arrest for the current offense, however, the State filed another violation of Drug
Court and issued a warrant for Little’s arrest. On September 1, 2011, the trial court
sentenced Little to three years in the DOC under Cause No. 008.
During the sentencing hearing, Little requested in-home detention, arguing that
incarceration would impose a hardship on her three children. The trial court sentenced
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Little to twenty-four months in the DOC and ordered that eighteen months be executed,
with twelve months served in the DOC and the remaining six months be served on in-
home detention. The trial court further ordered that Little’s sentence be served
consecutive to that under Cause No. 008.
DECISION
Little asserts that her sentence is inappropriate.2 Specifically, she argues that the
trial court’s “decision to place her in the [DOC] for an additional twelve months (12)
consecutive to her thirty-six (36) month sentence” under Cause No. 008 is inappropriate.
Little’s Br. at 9.
We may revise a sentence if it is inappropriate in light of the nature of the offense
and the character of the offender. Ind. Appellate Rule 7(B). It is the defendant’s burden
to “‘persuade the appellate court that his or her sentence has met th[e] inappropriateness
2
Little also suggests that the trial court failed to consider the hardship her incarceration would impose on
her dependents as a mitigator. She, however, has waived any argument regarding whether the trial court
abused its discretion by failing to find this as a mitigating circumstance. See Ind. Appellate Rule
46(A)(8)(a) (“Each contention must be supported by citations to the authorities . . . .”); see also Lyles v.
State, 834 N.E.2d 1035, 1050 (Ind. Ct. App. 2005) (“A party waives an issue where the party fails to
develop a cogent argument or provide adequate citation to authority and portions of the record.”), trans.
denied. Waiver notwithstanding, we note that a trial court is not required to find that a defendant’s
incarceration would result in an undue hardship on her dependents. Benefield v. State, 904 N.E.2d 239,
247 (Ind. Ct. App. 2009), trans. denied. “Many persons convicted of crimes have dependents and, absent
special circumstances showing that the hardship to them is ‘undue,’ a trial court does not abuse its
discretion by not finding this to be a mitigating factor.” Id.Here, the record shows that Little’s children reside with Little’s mother, that Little has not been
employed since 2009, and that she receives child support and survivor’s benefits on behalf of the children.
Thus, the record does not support any argument that the trial court may have disregarded a significant
mitigating circumstance. As Little presents no evidence of special circumstances, we cannot say that the
trial court abused its discretion in failing to find that incarceration would impose an undue hardship on
Little’s dependents.
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standard of review.’” Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007) (quoting
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)), clarified on reh’g, 875 N.E.2d
218 (Ind. 2007).
In considering the appropriateness of a sentence, this court is not constricted to
considering “only the appropriateness of the aggregate length of the sentence without
considering also whether a portion of the sentence is ordered suspended or otherwise
crafted using any of the variety of sentencing tools available to the trial judge.” Davidson
v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).
[I]t will be quite difficult for a defendant to prevail on a claim that the
placement of his sentence is inappropriate. This is because the question
under Appellate Rule 7(B) is not whether another sentence is more
appropriate; rather, the question is whether the sentence imposed is
inappropriate. A defendant challenging the placement of a sentence must
convince us that the given placement is itself inappropriate.
King v. State, 894 N.E.2d 265, 267-68 (Ind. Ct. App. 2008) (citations omitted).
In determining whether a sentence is inappropriate, the advisory sentence “is the
starting point the Legislature has selected as an appropriate sentence for the crime
committed.” Childress, 848 N.E.2d at 1081. “A person who commits a Class D felony
shall be imprisoned for a fixed term of between six (6) months and three (3) years, with
the advisory sentence being one and one-half (1 ½ ) years.” I.C. § 35-50-2-7. Again, the
trial court in this case sentenced Little to twelve months in the DOC and six months on
in-home detention.
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As to Little’s offense, the record shows that she drove impaired and ran a stop
sign. Although the nature of the offense may not be particularly egregious when
considered in isolation, the same cannot be said when it is considered with Little’s prior
history, which includes a conviction for operating a vehicle while intoxicated,
endangering a person; two convictions for public intoxication; and drug-related
convictions, all over a period of only three years.
Furthermore, Little committed the current offense while participating in Drug
Court. It is therefore clear that Little has little regard for the law and any prior leniency
has had no effect on her. Little has not persuaded us that serving a portion of her
executed sentence in the DOC is inappropriate.
Affirmed.
RILEY, J., and NAJAM, J., concur.
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