Teryn Applegate v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Dec 22 2015, 9:53 am
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
Matthew J. McGovern Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Teryn Applegate, December 22, 2015
Appellant-Defendant, Court of Appeals Case No.
31A01-1504-CR-157
v. Appeal from the Harrison Superior
Court
State of Indiana, The Honorable Joseph L.
Appellee-Plaintiff. Claypool, Judge
Trial Court Cause No.
31D01-1212-FD-904,
31D01-1301-FC-14, and
31D01-1406-FD-383
Najam, Judge.
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Statement of the Case
[1] In this consolidated appeal, Teryn Applegate appeals her sentences under three
separate cause numbers. Applegate presents the following issues for our review:
1. Whether, in Cause No. 31D01-1406-FD-383 (“FD-383”),
the trial court abused its discretion when it failed to enter a
sentencing statement.
2. Whether, in FD-383, her sentence is inappropriate in light
of the nature of the offenses and her character.
3. Whether, in Cause Nos. 31D01-1212-FD-904 (“FD-904”)
and 31D01-1301-FC-14 (“FC-14”), the trial court abused
its discretion when it imposed the entirety of her
suspended sentences upon the revocation of her probation
in each case.
[2] We affirm.
Facts and Procedural History
FD-904 and FC-14
[3] On September 30, 2013, Applegate pleaded guilty in FD-904 to theft, as a Class
D felony, and the plea agreement provided for an eighteen-month sentence
suspended to probation. Also on that date, Applegate pleaded guilty in FC-14
to trafficking with an inmate, as a Class A misdemeanor, and the plea
agreement provided for a twelve-month sentence suspended to probation. The
trial court ordered that the suspended sentences run consecutively.
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FD-383
[4] In April 2014, Applegate pretended to have a brain tumor in order to obtain
monetary donations from her community. Because members of the community
donated money and goods to Applegate based upon her fraudulent statements,
on June 25, the State charged Applegate with two counts of theft, as Class D
felonies. And on July 3, the State filed petitions to revoke Applegate’s
probation in both FD-904 and FC-14 based upon the new charges.
[5] On February 11, 2015, in FD-383, Applegate pleaded guilty to two counts of
theft, as Class D felonies, and her plea agreement left sentencing to the trial
court’s discretion, except that the court could impose only concurrent
sentences. Following a consolidated sentencing hearing, the trial court imposed
concurrent three year sentences in FD-383 for an aggregate sentence of three
years executed. And the trial court revoked Applegate’s probation in FD-904
and FC-14 and ordered that her suspended sentences in those cases be executed.
Finally, the trial court ordered that all three sentences would run consecutively.
This appeal ensued.
Discussion and Decision
Issue One: Sentencing Statement
[6] Applegate first contends that the trial court abused its discretion when it did not
issue a sentencing statement in FD-383. It is well settled that a trial court
abuses its discretion if it fails to enter a sentencing statement at all. Anglemyer v.
State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on other grounds on reh’g, 875
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N.E.2d 218 (Ind. 2007). Here, the trial court did not state its reasons for
imposing Applegate’s sentence in its written judgment. However, at the
conclusion of the sentencing hearing, the trial court stated as follows:
[T]he victim[s] in this matter w[ere] not just the parties that . . .
are here today in Court[, but] the entire community and that’s a
great offense in this Court’s determination[.] [T]herefore, that’s
what the sentence is for[, and] hopefully you can be rehabilitated
and come out and have this never happen again, get with your
children, and lead a good life in the future[.]
Tr. at 27. Thus, the trial court considered the number of actual victims to be an
aggravating circumstance supporting the enhanced sentence. And it is well
settled that a single aggravator is sufficient to support an enhanced sentence.
Trusley v. State, 829 N.E.2d 923, 927 (Ind. 2005).
[7] Even if the trial court abused its discretion in sentencing, the error would be
harmless if the sentence imposed was not inappropriate. See Windhorst v. State,
868 N.E.2d 504, 507 (Ind. 2007) (holding that in the absence of a proper
sentencing order, we may either remand for resentencing or exercise our
authority to review the sentence pursuant to Rule 7(B)). Because, as we explain
below, Applegate’s sentence is not inappropriate in light of the nature of the
offenses and her character, any sentencing error was harmless.
Issue Two: Appellate Rule 7(B)
[8] Applegate contends that her sentence is inappropriate in light of the nature of
the offenses and her character. Article 7, 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 Rule
7(B) requires the appellant to demonstrate that her sentence is inappropriate in
light of the nature of her offenses and her character. See Ind. Appellate Rule
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).
[9] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224
(Ind. 2008). 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.
[10] Applegate first contends that the nature of the offense does not support an
enhanced sentence. She maintains that “she did not intend her deception to
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progress so far” and the aggregate value of the stolen items was $140.
Appellant’s Br. at 11. However, as the trial court acknowledged at sentencing,
an entire community was victimized by Applegate’s fraudulent conduct,
including her own children, who thought that their mother was dying of cancer.
As the State points out, following a tip, police discovered that Applegate had
developed “an elaborate scheme to fraudulently obtain money, including an
interview with the media in which Applegate and her fiancé detailed her alleged
brain tumor, stated she had six months to live, and claimed she had been
denied coverage under Medicaid and the Affordable Health Care Act.”
Appellee’s Br. at 6-7 (citing Appellant’s App. at 117). We cannot say that
Applegate’s sentence is inappropriate in light of the nature of the offenses.
[11] Next, Applegate contends that her character warrants a revised sentence. In
particular, while Applegate acknowledges her criminal history, she claims that
“her convictions are based upon poor decision making from a profound
substance abuse problem.” Appellant’s Br. at 9. And Applegate urges us to
consider her history of substance abuse to be a mitigating factor. Applegate
also points out that she pleaded guilty and “saved the State and her community
the cost and emotional turmoil of a full-blown trial.” Id. at 10. Finally,
Applegate points out that she accepted responsibility for the crimes and
expressed remorse for her actions.
[12] First, with respect to Applegate’s history of substance abuse, Applegate does
not direct us to any evidence to show that she has sought treatment for her
addictions. Applegate merely describes her history of substance abuse as
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follows: “[s]he began using methamphetamine at only 15 years old and has
since abused marijuana, heroin, and opiate prescription pills.” Appellant’s Br.
at 12. Without any evidence that Applegate has sought treatment for her
addictions in the past, we cannot say that her substance abuse warrants a
revised sentence. See, e.g., Hape v. State, 903 N.E.2d 977, 1002 (Ind. Ct. App.
2009) (noting that a history of substance abuse may be a mitigating
circumstance but may also be an aggravating circumstance where the defendant
is aware of a substance abuse problem but has not taken appropriate steps to
treat it).
[13] Second, Applegate’s criminal history includes convictions for four prior counts
of theft, possession of a controlled substance, and trafficking with an inmate
while incarcerated. And she was on probation at the time she committed the
thefts in FD-383. Finally, we note that Applegate benefited from her guilty plea
in that she received concurrent sentences. Despite her expression of remorse,
we cannot say that her sentence is inappropriate in light of her character.
Issue Three: Sentencing After Probation Revocations
[14] Finally, Applegate contends that the trial court abused its discretion when it
ordered that she serve the balance of her previously suspended sentences. As
our supreme court has explained:
Probation is a matter of grace left to trial court discretion, not a
right to which a criminal defendant is entitled. The trial court
determines the conditions of probation and may revoke
probation if the conditions are violated. Once a trial court has
exercised its grace by ordering probation rather than
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incarceration, the judge should have considerable leeway in
deciding how to proceed. If this discretion were not afforded to
trial courts and sentences were scrutinized too severely on
appeal, trial judges might be less inclined to order probation to
future defendants. Accordingly, a trial court’s sentencing
decisions for probation violations are reviewable using the abuse
of discretion standard. An abuse of discretion occurs where 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) (citations omitted).
[15] Applegate’s only argument on appeal is that “the probation violation in both
[FD-904 and FC-14] is the same criminal scheme that underlay [sic] the
offenses in FD-383” and “for the same reasons that the maximum sentence is
inappropriate under FD-383, the maximum revocations in FD-904 and FC-14
constitute an abuse of discretion.” Appellant’s Br. at 16. Thus, for the same
reasons that we have held that her sentence in FD-383 is not inappropriate, we
likewise hold that the trial court did not abuse its discretion when it ordered her
to serve her previously suspended sentences in FD-904 and FC-14.
[16] Affirmed.
Riley, J., and May, J., concur.
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