Percilla A. Aguilar v. State of Indiana (mem. dec.) ( 2016 )

FILED
MEMORANDUM DECISION Jun 23 2016, 8:53 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
Indiana Supreme Court
Court of Appeals
this Memorandum Decision shall not be and Tax Court
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John C. Bohdan Gregory F. Zoeller
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Percilla A. Aguilar, June 23, 2016
Appellant-Defendant, Court of Appeals Case No.
02A05-1511-CR-1974
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D05-1405-FA-32
Crone, Judge.
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Case Summary
[1] Percilla A. Aguilar appeals the trial court’s decision to terminate her
participation in Drug Court and the sentence imposed on her convictions for
class A felony dealing in cocaine and class D felony maintaining a common
nuisance. She argues that the trial court abused its discretion in terminating
her participation in Drug Court. She also contends that her thirty-year
aggregate sentence is inappropriate based on the nature of the offenses and her
character. We conclude that the trial court gave Aguilar multiple opportunities
to comply with Drug Court requirements and therefore did not abuse its
discretion in terminating her participation in Drug Court. We also conclude
that she has failed to carry her burden to show that her sentence is
inappropriate. Therefore, we affirm.
Facts and Procedural History
[2] In 2013 and 2014, the Allen County Police Department received a series of
anonymous tips that Aguilar was dealing in large amounts of cocaine. The
anonymous callers informed the police that Aguilar and her brother would
purchase cocaine in Chicago and transport it to Fort Wayne to be sold. In
March 2014, police began surveillance of Aguilar’s residence. Between March
and May, police officers performed numerous searches of Aguilar’s trash and
found clear plastic bags that tested positive for cocaine and marijuana, and
what appeared to be a drug ledger. Police also found baggies that appeared to
have been washed clean, a practice drug dealers often use to destroy evidence.
In addition, police found three large garbage bags that were torn and had
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masking tape on them, which is consistent with the way drug dealers package
large amounts of drugs and/or money.
[3] In May 2014, police obtained and executed a search warrant for Aguilar’s
residence. They found fourteen baggies of cocaine, weighing a total of 10.7
grams, packaged in a manner consistent with drug dealing. Aguilar admitted
that the cocaine was hers but asserted that she was a user, not a dealer. Police
also discovered electronic scales containing cocaine residue.
[4] The same month, the State charged Aguilar with class A felony dealing in
cocaine and class D felony maintaining a common nuisance. In July 2014,
Aguilar pled guilty to both charges pursuant to a Drug Court participation plea
agreement. The State agreed that upon her successful completion of the Drug
Court program, it would move to dismiss the charges against her. As part of
the agreement, Aguilar agreed to comply with certain conditions, including a
ban on possessing or ingesting alcohol and a requirement that she submit to
random urinalysis. Also, Aguilar acknowledged that a violation of any or all
terms of the agreement could result in termination from the program.
[5] In August 2014, Aguilar missed two scheduled urinalysis screens. As a result,
the trial court required her to perform community service and write an essay on
how to avoid missing screens. Later that month, one of Aguilar’s urinalysis
screens resulted in a diluted sample, suggesting that she was hiding substance
abuse, and the trial court required her to write an essay on how to prevent
diluted urine samples.
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[6] In September and November 2014, Aguilar missed two appointments with her
Drug Court case manager. She was sanctioned with more community service.
In December 2014, Aguilar provided another diluted sample and missed a
scheduled urinalysis screen. She was sanctioned with two nights in jail.
[7] In January 2015, Aguilar provided another diluted sample and missed another
scheduled urinalysis screen. She was also fired from her job. At a hearing on
January 26, 2015, the trial court told Aguilar that it was worried about her and
reminded her that she was facing a minimum of twenty years in prison for the
class A felony charge. The trial court stated that the diluted samples and
missed screens indicated that there was something she was hiding.
Accordingly, the trial court remanded her to jail until February 2, 2015. Upon
her release, the trial court ordered her to meet more frequently with her case
manager and warned her about the “high stakes” of failing out of the program.
Tr. 53-54. Aguilar subsequently completed treatment at a local counseling
facility.
[8] In June 2015, Aguilar missed another drug screen and was sanctioned with
community service. In July 2015, Aguilar was released from the transitional
home to live on her own. However, she missed another drug screen and an
appointment with her case manager and was sanctioned with community
service work.
[9] In early August 2015, Aguilar missed another appointment with her case
manager and her urinalysis screen came back positive for alcohol. At a status
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hearing on August 17, 2015, Aguilar admitted that she drank beer. The trial
court informed Aguilar that she was almost to the point where she was past
treatment. The court explained, “[T]here’s really not a whole lot of resources
we have left. … We’re kind of running out of treatment and programs and help
for you. And what happens then is that people can get bounced out of the
program.” Id. at 73. The trial court reminded Aguilar four times that if she
failed the program, she would be sentenced to at least twenty years in prison.
The trial court sanctioned her with a weekend in jail.
[10] On September 8, 2015, Aguilar’s Drug Court case manager filed a petition to
terminate her Drug Court participation, alleging that Aguilar had violated three
conditions of her participation agreement by testing positive for alcohol on
August 28, 2015, possessing alcohol in her home, and failing to inform her case
manager that she had been laid off from work. A status hearing was held the
same day, at which Aguilar admitted to the violations, and the trial court
terminated her participation in Drug Court.
[11] In October 2015, the trial court held a sentencing hearing. The trial court found
the following aggravating factors: Aguilar’s criminal record, including two
juvenile adjudications, a misdemeanor conviction, and three felony convictions;
failed efforts at rehabilitation, including probation, parole, treatment, shorter
jail sentences, criminal diversion services, and community corrections; and she
was on parole when she committed the current offenses. The trial court also
found the following mitigating factors: her guilty plea, genuine remorse, and
efforts in the Drug Court program. The trial court sentenced her to a term of
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thirty years, with ten years suspended and four years of probation, for class A
felony dealing in cocaine and a concurrent term of two years for class D felony
maintaining a common nuisance. This appeal ensued.
Discussion and Decision
Aguilar argues that the trial court abused its discretion “in entering a judgment
of conviction on a Class A Felony as a sanction for a Drug Court Program
violation in light of the nature of the offenses and [her] character.” Appellant’s
Br. at 1. Her presentation of the issue conflates two separate questions: whether
the trial court abused its discretion in terminating her participation in Drug
Court and whether the sentence imposed for her convictions is inappropriate.
Accordingly, we address her argument within this framework.
Section 1 - The trial court did not abuse its discretion in
terminating Aguilar’s participation in Drug Court.
[12] Drug Court is a forensic diversion program akin to community corrections and
probation, and we will review the termination of placement in a Drug Court
program as we do a revocation of placement in community corrections or
probation. Withers v. State, 15 N.E.3d 660, 663 (Ind. Ct. App. 2014).
Placement in Drug Court, like placement in community corrections or
probation, is an alternative to commitment to the Department of Correction
and is made at the sole discretion of the trial court. Id. at 663-64. Accordingly,
we will reverse a trial court’s decision to terminate an individual’s participation
in Drug Court for an abuse of discretion. Id. at 665. We will find an abuse of
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discretion only where the decision is clearly against the logic and effect of the
facts and circumstances. Id.[13] A trial court may terminate an individual’s participation in Drug Court based
on the violation of at least one of the conditions of the participation agreement.
Ind. Code § 33-23-16-14.5. Once an individual’s participation in Drug Court is
terminated, the trial court is required to enter judgment of conviction or
otherwise dispose of the case. Ind. Code § 33-23-16-14(b). Aguilar violated the
conditions of her Drug Court participation agreement numerous times by
missing appointments with her case manager, missing scheduled urine screens,
and providing dilute urine samples. The trial court sanctioned her with writing
requirements, community service, and jail time. The trial court gave Aguilar
numerous opportunities to reform her behavior and reminded her of the harsh
consequences of her failure to successfully complete the program. Nevertheless,
Aguilar again violated the conditions of her participation agreement by testing
positive for alcohol and possessing alcohol in her home. Under these
circumstances, we cannot say that the trial court abused its discretion in
terminating her participation in Drug Court. See Crump v. State, 740 N.E.2d
564, 573 (Ind. Ct. App. 2000) (upholding revocation of probation where
defendant violated probation by consuming alcohol), trans. denied (2001).
Section 2 – Aguilar has failed to carry her burden to show that
her sentence is inappropriate.
[14] Pursuant to Indiana Appellate Rule 7(B), “The Court may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, the
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Court finds that the sentence is inappropriate in light of the nature of the offense
and the character of the offender.” When reviewing a sentence, our principal
role is to leaven the outliers rather than necessarily achieve what is perceived as
the correct result. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “We do
not look to determine if the sentence was appropriate; instead we look to make
sure the sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876
(Ind. 2012). Aguilar has the burden to show that her sentence is inappropriate.
Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218.
[15] Turning first to the nature of the offense, we observe that “the advisory sentence
is the starting point the Legislature selected as appropriate for the crime
committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The sentencing
range for a class A felony is twenty to fifty years, with an advisory sentence of
thirty years. Ind. Code § 35-50-2-4. Here, the trial court gave Aguilar the
advisory sentence, but moderated it by suspending ten years with four years on
probation. See Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010) (“Upon the
review of sentence appropriateness under Appellate Rule 7, appellate courts
may consider all aspects of the penal consequences imposed by the trial judge in
sentencing the defendant.”). The police discovered 10.7 grams of cocaine in
Aguilar’s residence, which was far more than the three grams of cocaine
necessary to sustain her dealing conviction. Also, numerous discarded baggies
with cocaine residue on them were found in her trash on six different days.
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When Aguilar was finally arrested for her cocaine dealing, she denied she was a
dealer.
[16] As for Aguilar’s character, she has not led a law-abiding life and has had
previous trouble with drugs. In 2003, she was convicted of class B felony
dealing in cocaine and class C felony dealing in marijuana. In 2009, she was
convicted of misdemeanor public intoxication. In 2010, she was convicted of
class C felony possession of cocaine. She was also adjudicated a juvenile
delinquent for committing what would be class C felony forgery if committed
by an adult. Previous attempts to rehabilitate her have failed. When she
committed the current offenses involving dealing in cocaine, she was still on
parole for her conviction of class C felony possession of cocaine. We recognize
that Aguilar has demonstrated positive attributes such as taking responsibility
for her actions, showing remorse, and completing some of the steps in Drug
Court. Overall, however, she fails to persuade us that an advisory sentence
with ten years suspended, bringing her executed term down to the minimum, is
inappropriate. Accordingly, we affirm Aguilar’s sentence.
[17] Affirmed.
Najam, J., and Robb, J., concur.
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