Christa A. Bays v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Apr 15 2020, 5:36 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
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath LLP Attorney General of Indiana
Madison, Indiana
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christa A. Bays, April 15, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2027
v. Appeal from the Ripley Superior
Court
State of Indiana, The Honorable Jeffrey Sharp,
Appellee-Plaintiff. Judge
Trial Court Cause No.
69D01-1609-CM-261
69D01-1704-CM-109
69D01-1904-CM-146
Barnes, Senior Judge.
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Statement of the Case
[1] Christa Bays appeals the sentence she received for her convictions of two counts
1
of check deception, a Class A misdemeanor. In addition, Bays appeals the trial
court’s imposition of her entire previously suspended sentences following her
admission to violating the terms of her probation. We affirm.
Issues
[2] Bays presents two issues for our review, which we restate as:
I. Whether Bays’ one-year sentence for two counts of check
deception is inappropriate.
II. Whether the trial court abused its discretion by ordering
her to serve her entire previously suspended sentences.
Facts and Procedural History
[3] In September 2016, Bays was charged with Class A misdemeanor check
deception under cause number 69D01-1609-CM-261 (“CM-261”). In February
2017, Bays pleaded guilty to the charge and received a suspended sentence of
one year with one year of probation.
[4] In April 2017, Bays was charged with Class A misdemeanor driving while
suspended with a prior under cause number 69D01-1704-CM-109 (“CM-109”).
1
Ind. Code § 35-43-5-5 (2014).
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In October 2017, Bays entered a plea of guilty to the charge and was sentenced
to one year, suspended to one year of probation.
[5] In September 2018, the State filed a petition for probation violation in both
CM-261 and CM-109 based upon several new charges being filed against Bays.
Bays later admitted to the violations, and the court revoked her probation and
ordered her to serve her suspended sentences in both causes.
[6] Finally, in April 2019, Bays was charged with two counts of Class A
misdemeanor check deception under cause number 69D01-1904-CM-146 for
writing checks to the local grocery store that were returned for insufficient
funds. Bays pleaded guilty to both counts and received concurrent one-year
sentences. Bays now appeals.
Discussion and Decision
I. Inappropriate Sentence
[7] Bays first contends that her aggregate one-year sentence for her conviction of
two counts of Class A misdemeanor check deception in CM-146 is
inappropriate in light of the nature of the offenses and her character.
[8] Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized
by statute if, after due consideration of the trial court’s decision, we determine
that the sentence is inappropriate in light of the nature of the offense and the
character of the offender. Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App.
2014). However, “we must and should exercise deference to a trial court’s
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sentencing decision, both because Rule 7(B) requires us to give ‘due
consideration’ to that decision and because we understand and recognize the
unique perspective a trial court brings to its sentencing decisions.” Stewart v.
State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). Such deference to the trial
court’s judgment should prevail 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). Thus, 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. King v. State, 894
N.E.2d 265, 268 (Ind. Ct. App. 2008). The defendant bears the burden of
persuading the appellate court that his or her sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[9] To assess whether a sentence is inappropriate, we look first to the statutory
range established for the class of the offenses. Here, Bays was convicted of two
Class A misdemeanors, for which each sentence may not exceed one year. Ind.
Code § 35-50-3-2 (1977). The court sentenced Bays to one year on each of the
counts and ordered them to be served concurrently.
[10] Next, we look to the nature of the offenses. On August 5, 2018, Bays wrote a
check to the Sunman IGA grocery store in the amount of $207.45, and, on
August 19, 2018, she wrote another check to the same store in the amount of
$167.13. Both checks were returned for insufficient funds.
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[11] With regard to the character of the offender, the trial court observed that Bays’
criminal history is “atrocious.” Tr. Vol. 2, p. 25. Even a minor criminal history
is a poor reflection of a defendant’s character. Moss v. State, 13 N.E.3d 440, 448
(Ind. Ct. App. 2014), trans. denied. Yet, Bays’ history is not minor. The State
informed the court that Bays’ record includes check deception in 1998; check
deception and fraud on a financial institution in 1999; C felony fraud on a
financial institution in 2000; driving while suspended in 2006; felony forgery in
2007; check deception and driving while suspended in 2012; driving while
suspended in 2013; theft and check deception in 2016; driving while suspended,
check deception, and compulsory school attendance violation in 2017; and
theft, check deception, and Level 5 felony burglary in 2018. The trial court
declared to Bays that her criminal history “might be one of the top ten in this
Court.” Id. at 22. Moreover, at the time of sentencing, Bays had pending
charges of three counts of driving while suspended, felony burglary, felony
theft, and felony possession of methamphetamine.
[12] In addition, in determining a defendant’s sentence, the court may consider as
an aggravating circumstance the fact that the defendant recently violated
conditions of probation. Ind. Code § 35-38-1-7.1(a)(6) (2015). A defendant’s
commission of offenses while on probation is a “substantial consideration” in
the assessment of her character. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App.
2008), trans. denied. Accordingly, the trial court took into consideration that
Bays has violated her probation numerous times and had petitions to revoke
pending in CM-261 and CM-109.
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[13] Bays claims that her criminal behavior is due to her substance abuse problem,
and at sentencing she requested to enter a substance abuse program in lieu of
imprisonment. In response to her claims and request, the court stated:
I mean, at some point Ms. Bays, I have to look at individuals
who commit crimes because they are on drugs and then I have to
look at individuals who have criminal thinking who migrate to
drugs as well. Do you understand? There is a difference between
the two and your criminal history leads me to believe that you
have criminal thinking and that is what has led you to drugs, not
the other way around because that history goes back a long way
and that history is ch[ock] full of deceit, so that is why I am a
little leery to believe anything you say here today because when
I’m talking about Check Deception, after Check Deception, after
Check Deception, Thefts, after Thefts, after Theft.
I’m not putting you in that program, not with that criminal
history. Like I said, I believe that you are a high risk to re-
offend. I believe that you have extremely high criminal thinking
and a history full of fraud and deceit and that is not the type of
person that needs to be in a program where I’m trying to get
individuals clean[.]
Tr. Vol. 2, pp. 23, 26.
[14] The court noted the fact that Bays had pleaded guilty and stated her desire to
change but stated those factors were diminished by her criminal history full of
crimes of deceit as well as her commission of new offenses while on probation.
In light of these circumstances, the trial court nevertheless sentenced her to the
lenient aggregate sentence of one year. Bays has not met her burden of
presenting compelling evidence portraying in a positive light the nature of the
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offenses and her character in order to overcome the trial court’s sentencing
decision.
II. Sentencing Discretion
[15] Next, Bays asserts that the trial court abused its discretion when, upon revoking
her probation in CM-261 and CM-109, it ordered her to serve the entirety of her
one-year suspended sentence in each cause.
[16] A defendant is not entitled to serve a sentence on probation; rather, such
placement is a matter of grace and a conditional liberty that is a favor, not a
right. Davis v. State, 743 N.E.2d 793, 794 (Ind. Ct. App. 2001), trans denied.
Further, probation is a criminal sanction for which a convicted defendant
specifically agrees to accept conditions upon his behavior in lieu of
imprisonment. Bratcher v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013),
trans. denied. These restrictions are designed to ensure that probation serves as a
period of genuine rehabilitation and that the public is not harmed by a
probationer living within the community. Jones v. State, 838 N.E.2d 1146, 1148
(Ind. Ct. App. 2005).
[17] Indiana Code section 35-38-2-3(h) (2015) provides that if the court finds a
violation of a condition of probation, it may: (1) continue the person on
probation, with or without modifying the conditions; (2) extend the person’s
probationary period for not more than one year; and/or (3) order execution of all
or part of the sentence that was suspended at the time of initial sentencing. A trial
court’s sentencing decisions for probation violations are reviewed for an abuse
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of discretion. Wilkerson v. State, 918 N.E.2d 458, 464 (Ind. Ct. App. 2009). An
abuse of discretion occurs when the decision is clearly against the logic and
effect of the facts and circumstances. Prewitt v. State, 878 N.E.2d 184, 188 (Ind.
2007).
[18] The State’s petition, to which Bays admitted, states that she had previously
violated her probation in CM-261 by committing new offenses and that the
court had merely ordered her to continue her probation with the same
conditions. It further alleges that she had violated her probation in both CM-
261 and CM-109 by being charged with the new criminal offenses of
compulsory school attendance violation, three counts of driving while
suspended, misdemeanor theft, felony burglary, felony theft, and felony
possession of methamphetamine.
[19] Bays suggests she should not have been ordered to serve her entire suspended
sentence because she admitted the violations and took responsibility for her
actions. However, Bays did not take responsibility for her actions; rather, she
blamed her criminal activity on her alleged drug problem. As we set out in the
prior issue, the trial court did not accept this excuse.
[20] Moreover, it is highly relevant that when Bays has been released to probation,
she has continually violated the terms of her probationary placements. Her
repeated refusal to comply with court-ordered terms of probation demonstrate
that it is unlikely she would be able to successfully complete her probationary
periods in these causes. Thus, we cannot say the trial court’s decision to order
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Bays to serve her entire previously suspended sentences of one year each is
clearly against the logic and effect of the facts and circumstances of this case.
Conclusion
[21] Considering both the nature of the offenses and the character of the offender
and giving due consideration to the trial court’s sentencing decision, we are
unable to conclude that Bays’ aggregate one-year sentence in CM-146 is
inappropriate. Furthermore, we conclude the trial court properly exercised its
discretion in ordering Bays to serve the entirety of her previously suspended
sentences upon revocation of her probation in CM-261 and CM-109.
[22] Affirmed.
Baker, J., and Najam, J., concur.
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