April M. Camos v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 06 2017, 7:55 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony S. Churchward Curtis T. Hill, Jr.
Deputy Public Defender Attorney General of Indiana
Anthony S. Churchward, PC
Fort Wayne, Indiana Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
April M. Camos, July 6, 2017
Appellant-Defendant, Court of Appeals Case No.
02A05-1610-CR-2492
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D06-1503-F2-6
May, Judge.
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[1] April M. Camos appeals her seventeen-year aggregate sentence for one count of
Level 2 felony dealing in cocaine or narcotic drug, 1 four counts of Level 4
felony dealing in cocaine or narcotic drug, 2 and one count of Level 6 felony
maintaining a common nuisance. 3 Camos argues her sentence is inappropriate
based on her character and the nature of her offenses. We affirm.
Facts and Procedural History
[2] On October 1, 2014, a confidential informant (“CI”) working with Detective
Gutierrez of the Fort Wayne Police Department went to the home of Camos’
boyfriend, Thomas Perez, to buy cocaine. Camos measured out 1.4 grams,
which Perez handed to the CI. Again, on October 9, 2014, the CI returned to
Perez’s home where Camos measured out 1.4 grams of cocaine, which Perez
sold to the CI. Later that day, Detective Gutierrez presented the CI with a six-
person photo array from which the CI positively identified Perez as the man
who sold the CI cocaine. Detective Gutierrez conducted a background check
on Perez and discovered Camos listed as a possible associate.
[3] On October 31, 2014, Detective Gutierrez presented the CI with a six-person
photo array that included a photograph of Camos. The CI positively identified
Camos as the person who assisted Perez during the two cocaine sales. On
1
Ind. Code § 35-48-4-1(e) (2014).
2
Ind. Code § 35-48-4-1(c) (2014).
3
Ind. Code § 35-48-4-13 (2014).
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November 7, 2014, the CI arranged to meet Camos to buy directly from her. At
the agreed location, Camos entered the CI’s car and sold the CI 1.2 grams of
cocaine. On December 3, 2014, Camos pulled from her bra a bag containing
2.2 grams of cocaine, which, as before, she handed to Perez to sell to the CI.
On January 29 and February 12, 2015, the CI performed two more controlled
cocaine buys at which Camos was present.
[4] Finally, on March 6, 2015, the Fort Wayne Police Department executed a
search warrant on Camos’ apartment. Police found approximately 5.5 grams of
cocaine, a digital scale with cocaine residue, various other drug paraphernalia,
Camos’ Indiana identification card, and mail addressed to Camos. Camos’
apartment is approximately 264 feet from Horizon Christian Academy, a
school for grades Pre-Kindergarten through twelve. School was in session
during the February 12 cocaine deal and the March 6 search warrant execution.
Officers arrested Camos and read her Miranda rights to her. She subsequently
admitted dealing cocaine in the months prior to her arrest and being a minimal
cocaine user.
[5] Camos was charged with one count of Level 2 felony dealing in cocaine, four
counts of Level 4 felony dealing in cocaine, and one count of Level 6 felony
maintaining a common nuisance. On March 30, 2015, she pled guilty to all
charges in exchange for acceptance into the drug court diversion program, for
which successful completion would result in dismissal of all charges.
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[6] During Camos’ time in the diversion program, she committed several program
violations that “were not conducive to her recovery.” (Sent. Tr. at 8.) These
violations included: testing positive for alcohol on one occasion, testing positive
for cocaine on one occasion, giving a diluted urine sample, missing three drug
screens, and being dismissed from two transitional living facilities. Program
violations resulted in Camos being sanctioned with community service, an
essay, and on multiple occasions, jail time. Eventually, Camos was dismissed
from participation in the diversion program for failing to follow the program’s
rules.
[7] At her sentencing hearing on September 27, 2016, Camos presented several
mitigating factors: her lack of criminal history, her early introduction to drug
use, her compliance with some of the diversion program rules, her sobriety for
nearly eleven months, her three dependent children, her full-time employment
during most of the program, and her acceptance of responsibility for her
actions. In addition, Camos expressed her remorse for not complying with the
program’s rules, and she thanked the court for her opportunity, stating “I’m
disappointed in myself for not completing your program, because . . . that was
something I really wanted was to finish this [sic] and I didn’t.” (Id. at 10.)
Aggravating factors included the nature and circumstances of her offenses and
her failure to rehabilitate. She was sentenced to seventeen years for the Level 2
felony, six years for each of the Level 4 felonies, one year for the Level 6 felony.
All sentences were ordered served concurrently for an aggregate sentence of
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seventeen years, with ten years executed, seven years suspended, and two years
on probation.
Discussion and Decision
[8] Camos argues her sentence is inappropriate under Indiana Appellate Rule
7(B). 4 Under Appellate Rule 7(B), we may revise a sentence if, after due
consideration of the trial court’s decision, we find the sentence inappropriate in
4
In the midst of her argument based on Appellate Rule 7(B), Camos suggests the trial court found improper
aggravators. However, the finding of aggravators is an issue we review for an abuse of discretion and is an
argument distinct from the appropriateness of a sentence under Appellate Rule 7(B). King v. State, 894
N.E.2d 265, 267 (Ind. Ct. App. 2008) (“As our Supreme Court has made clear, inappropriate sentence and
abuse of discretion claims are to be analyzed separately.”). Under Ind. Appellate Rule 46(A)(8), Camos’
mention of improper aggravators is inadequate to constitute the cogent argument required to avoid waiver of
an issue on appeal. See Price v. Review Bd. of Ind. Dept. of Workforce Dev., 2 N.E.3d 13, 16-17 (Ind. Ct. App.
2013) (Appellant’s lack of cogent argument waived claim for appellate review). Accordingly, Camos has
waived any such argument. See id. at 16. Waiver notwithstanding, any such argument would have been
unsuccessful.
Camos argues the trial court erred in finding aggravating circumstances surrounding Camos’ offenses. “The
trial court must enter a statement including reasonably detailed reasons or circumstances for imposing a
particular sentence.” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g 875 N.E.2d 218(2007). We review those findings for an abuse of discretion. Id. Here the trial court found as aggravators the
nature and circumstances of the crimes and Camos’ failed efforts at rehabilitation through the drug court
program, and those aggravators are supported by the record. As for circumstances of the crimes, Camos sold
and helped sell cocaine multiple times to a CI, and she admitted she had been dealing cocaine in the few
months prior to her arrest and was a minimal cocaine user. Regarding her failed efforts at rehabilitation,
Camos was given multiple opportunities during the diversion program to correct her behavior and “get [her]
life together.” (Sent. Tr. at 11.) As the aggravators were “reasonable, probable, and actual deductions to be
drawn” from the record, we see no abuse of discretion in the finding of those aggravating circumstances. See
Smith v. State, 929 N.E.2d 255, 258 (Ind. Ct. App. 2010) (trial court did not abuse its discretion when
aggravators supported by the record), trans. denied.
Camos also argues the trial court did not give proper mitigating value to her lack of criminal history, her plea
of guilty, or her expressed remorse. “The relative weight or value assignable to reasons properly found or
those which should have been found is not subject to review for abuse.” Anglemyer, 868 N.E.2d at 491.
Accordingly, we cannot review for abuse of discretion the weight the trial court gave to these mitigating
factors put forward by Camos.
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light of the nature of the offense and the character of the offender. Anglemyer v.
State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (2007).
We consider not only the aggravators and mitigators found by the trial court,
but also any other factors appearing in the record. Johnson v. State, 986 N.E.2d
852, 856 (Ind. Ct. App. 2013). We defer to the trial court’s decision, and our
goal is to determine whether the defendant’s sentence is inappropriate, not
whether some other sentence would be more appropriate. Conley v. State, 972
N.E.2d 864, 876 (Ind. 2012), reh’g denied. Camos, as the defendant, bears the
burden of demonstrating her sentence is inappropriate. See Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
[9] When considering the nature of the offense, the advisory sentence is the starting
point for determining the appropriateness of a sentence. Anglemyer, 868 N.E.2d
at 494. The advisory sentence for a Level 2 felony is 17½ years, with the range
being 10 to 30 years. Ind. Code § 35-50-2-4.5 (2014). For a Level 4 felony, the
advisory sentence is 6 years, and the range is 2 to 12 years. Ind. Code § 35-50-
2-5.5 (2014). The advisory sentence for a Level 6 felony is 1½ years, with a
range of 6 months to 3 years. Ind. Code § 35-50-2-7 (2014). For her Level 2
felony, Camos was sentenced to seventeen years, which is less than the advisory
for a Level 2 felony. She received the six-year advisory sentence for each Level
4 felony, and she received one year for her Level 6 felony, which is below the
advisory for Level 6 felony. Because the court imposed concurrent sentences,
Camos received an aggregate sentence that is shorter than the advisory sentence
for her most-serious offense. In light of the fact that her offenses involved
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multiple cocaine sales to a CI, including one within approximately 264 feet of a
school around noon on a school day, we see nothing inappropriate about her
seventeen-year sentence.
[10] Regarding Camos’ character, the trial court noted her lack of prior criminal
history, her guilty plea, and her expressed remorse for not completing the
diversion program. When considering the character of the offender, one
relevant fact is the defendant’s criminal history. Johnson, 986 N.E.2d at 857.
The significance of criminal history varies based on the gravity, nature, and
number of prior offenses in relation to the offense. Id. Camos’ convictions for
dealing cocaine are her first convictions, but she admitted using illegal drugs
since she was a teenager. While the trial court acknowledged her lack of prior
criminal history, the trial court also noted her failure to correct her behavior
despite being given multiple opportunities in the diversion program.
[11] Camos possessed and sold drugs near a school, during a time when children
were likely to be attending. She chose to continually break the diversion
programs rules and failed to be rehabilitated. While this proceeding produced
her first conviction, it also resulted in six convictions, including a Level 2
felony, and Camos has admittedly been engaged in illegal activities for several
years. Her seventeen-year sentence is not inappropriate in light of her character
and the nature of the offenses.
Conclusion
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[12] As Camos has failed to demonstrate her sentence is inappropriate based on the
nature of her offenses and her character, we affirm.
[13] Affirmed.
Brown, J., and Pyle, J., concur.
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