Tonya R. Crump v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), this Nov 22 2016, 9:16 am
Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
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
Andrew B. Arnett Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tonya R. Crump, November 22, 2016
Appellant, Court of Appeals Case No.
73A01-1604-CR-848
v. Appeal from the Shelby Circuit
Court
State of Indiana,
The Honorable Charles D.
Appellee. O’Connor, Judge
Trial Court Cause No.
73C01-1310-FA-29
Brown, Judge.
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[1] Tonya R. Crump appeals her sentence for dealing in methamphetamine as a
class B felony. Crump raises one issue which we restate as whether her sentence
is inappropriate based on the nature of the offense and the character of
the offender. We affirm.
Facts and Procedural History
[2] On or about August 28, 2013, Crump knowingly or intentionally delivered
methamphetamine to another. On October 29, 2013, the State charged Crump
with dealing methamphetamine as a class A felony. The State’s information
alleged that Crump delivered methamphetamine within 1,000 feet of school
property, a public park, a family housing complex, and/or a youth program
center. The State later filed an amended information, with the approval of the
court, which alleged that Crump delivered methamphetamine in an amount
weighing three grams or more as a class A felony.
[3] On March 15, 2016, the court held a guilty plea and sentencing hearing at
which Crump, pursuant to a plea agreement, pled guilty to dealing in
methamphetamine as a class B felony. The plea agreement provided that in
exchange for her plea of guilty to dealing in methamphetamine as a class B
felony, the State would dismiss any remaining counts, and that sentencing
would be open to the court. The plea agreement also provided that Crump
waived any right to appellate review of her sentence. The court asked Crump if
she understood that she had the right to appeal her sentence, and she responded
affirmatively. The prosecutor stated that, if the matter had proceeded to trial,
the State would have presented testimony that, as part of a controlled buy,
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Crump delivered methamphetamine to a confidential informant in exchange for
$350 and that the informant was searched and found in possession of
methamphetamine in the amount of 3.7 grams. When asked if she admitted
and agreed she acted as described by the prosecutor, Crump responded
affirmatively. The court found there was a factual basis for the plea.
[4] The court then moved to sentencing. Crump testified that she had been caring
for her fiancé’s father for eight months while his wife was at work and made
sure he had his medicine and he ate, and she ran errands as needed, and she
helped him move from room to room. She testified that she attended meetings
at her church, her life had completely changed in the last two and one-half to
three years, she was completely drug free, she had a relationship with her
mother and children, she was engaged to a man that does not have any kind of
drug in his life, and that she also helped care for her niece who has brain
injuries. She further testified that she had been recently hospitalized for seven
days, she is completely insulin dependent, she gives herself insulin injections
five times a day, she was waiting on injections for her knees and possible
surgery, and that she was scheduled for a required hysterectomy.
[5] Crump also stated that she previously completed house arrest for ninety days
without any violations, she successfully completed her sentences and probation
in connection with her prior convictions, she successfully completed the MRT
Program, she passed all her drug screens, she took advantage of every
opportunity while in the Indiana Department of Correction (the “DOC”), and
that she became Microsoft certified. When asked if she recalled telling the
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detective “that this saved [her] life,” Crump responded affirmatively, and she
stated that “[i]t got me out of a situation with a man and his family that I didn’t
need to be in and I wasn’t sure how to break away from it” and “[t]his
completely broke me away from a lot of things but it completely changed my
life and changed the direction of my life.” Transcript at 22. She testified that
her boyfriend at the time was working for the confidential informant’s brother,
that instead of being paid in cash he would be paid in drugs, that on numerous
occasions they would obtain money by returning the drugs for money, and that
most of the time she was giving the drugs back because she was female and her
former boyfriend wanted a female to hand the, back. On cross-examination,
when asked if she admitted that she was out on bond for carrying a handgun
and possession of a controlled substance and chose to continue to deal in
methamphetamine, Crump responded affirmatively.
[6] Crump’s counsel asked the court to consider commitment to community
corrections and argued that “she’s really someone that could uh benefit the
community by maintaining her uh status of not being in the [DOC].” Id. at 30.
The prosecutor argued that an appropriate sentence was “fifteen years executed
with three suspended.” Id. at 31.
[7] In its sentencing order, the court found that this is Crump’s second conviction
for dealing to be an aggravating factor and assigned the factor significant
weight, that Crump committed the offense while out on bond to be an
aggravating factor and assigned the factor significant weight as it demonstrates
disdain for the State’s ability to bring her to justice, and that she is remorseful
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for her actions and has significant health issues and assigned these factors
minimal weight. The court found that the aggravating factors outweighed the
mitigating factors and support an enhanced sentence and sentenced Crump to
eleven years with eight years executed and three years suspended to probation.
The court ordered that the executed term be served as seven years in the DOC
and one year as a direct commitment to home detention.
Discussion
[8] The issue is whether Crump’s sentence is inappropriate based on the nature of
the offense and her character. Ind. 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 find] that the sentence is inappropriate in light of the
nature of the offense and the character of the offender.” Under this rule, the
burden is on the defendant to persuade the appellate court that his or her
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
Relief is available if, after due consideration of the trial court’s sentencing
decision, this Court finds that in its independent judgment, the sentence is
inappropriate in light of the nature of the offense and the character of the
offender. See Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015). Sentencing is
principally a discretionary function in which the trial court’s judgment should
receive considerable deference. Id. (citation omitted). 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
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others, and myriad other factors that come to light in a given case. Id. (citation
omitted).
[9] Crump contends her sentence is inappropriate and that the trial court failed to
recognize several mitigating factors. She argues that the court failed to
recognize that she would respond affirmatively to probation or short-term
imprisonment, that the crime was a result of circumstances unlikely to recur,
and that imprisonment would result in undue hardship to her fiancé’s father
and her niece.
[10] The State maintains that Crump, in her plea agreement, waived her right to
challenge her sentence on appeal and that her sentence is not inappropriate. It
argues that Crump’s offense is particularly outrageous because it is her second
dealing conviction and she committed the crime while released on bond for
charges of carrying a handgun and possession of a controlled substance. The
State also argues that Crump has a significant criminal history and a long
history of substance abuse including cocaine and methamphetamine.
[11] Even assuming that Crump did not waive this issue, we cannot say that Crump
has established that her sentence is inappropriate in light of the nature of the
offense and her character. We note that Ind. Code § 35-50-2-5 provides that a
person who commits a class B felony shall be imprisoned for a fixed term of
between six and twenty years, with the advisory sentence being ten years. The
trial court sentenced Crump to eleven years with eight years executed, and it
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ordered that one year of the executed term be served as a direct commitment to
home detention.
[12] With respect to the nature of the offense, the record reveals that in August 2013
Crump knowingly or intentionally delivered methamphetamine to another.
With respect to the character of the offender, the presentence investigation
report (“PSI”) indicates that Crump’s criminal history consists of conspiracy to
traffic with an inmate as a class A misdemeanor in 1993, dealing in marijuana
as a class D felony in 2009, and possession of marijuana as a class D felony and
“Carrying Handgun w/o License-Prior/Prior Felony w/in 15 Yrs/School
Prop, School Bus” as a class C felony in 2013 under cause number 73D01-1302-
FC-12 (“Cause No. 12”). Appellant’s Appendix, Volume III, at 6. The PSI
further states that, at the time Crump committed the present offense, she was out
on bond under Cause No. 12, that in the past she was placed on probation under
two cases and successfully completed those supervisions, and that she has
successfully completed three separate terms of home detention, the most recent
in 2014. The PSI states that Crump cares for her boyfriend’s father who suffers
from dementia, Parkinson’s disease, and other health issues Monday through
Friday from 6 a.m. to 4 p.m. while his wife is at work, and that Crump testified
that she had been caring for her fiancé’s father for eight months and that she
also helps care for her niece who has brain injuries.
[13] With respect to her health, the PSI states Crump is diabetic and must give
herself insulin shots, has neuropathy in her feet and has prescriptions, she noted
she has vision trouble, she has a prescription for her stomach, she has had
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surgery on her back three times, and that she has had surgery on her left elbow,
right ankle, and left foot. With respect to substance abuse, the PSI states that
Crump has a history of drug use that began when she was in high school,
marijuana is her drug of choice and she reported last using in October 2013,
and that she began using cocaine weekly in 1997 but reported it has been years
since she last used cocaine. The PSI further states she began using
methamphetamine in 2001/2002, she used methamphetamine on and off for
years, prior to her arrest in 2013 she estimated she was using methamphetamine
every other weekend, she last used methamphetamine in October 2013, she
began experimenting with pills beginning at the age of fifteen and noted she last
used pills three years ago, and that she has also used spice, bath salts, LSD, and
mushrooms. The PSI notes that, according to Crump, she was a patient of the
Dunn Center in 2006/2007 but stopped going and then was a patient again in
2009/2010 and successfully completed the program. The PSI further notes that
Crump’s overall risk assessment score using the Indiana risk assessment system
places her in the moderate risk to reoffend category.
[14] After due consideration, we conclude that Crump has not met her burden of
establishing that her sentence is inappropriate in light of the nature of the
offense and her character.1
1
To the extent Crump argues the court abused its discretion in sentencing her for failure to recognize certain
mitigating circumstances, we need not address this issue because we find that her sentence is not
inappropriate under Ind. Appellate Rule 7(B). See Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007)
(holding that, in the absence of a proper sentencing order, Indiana appellate courts may either remand for
resentencing or exercise their authority to review the sentence pursuant to Ind. Appellate Rule 7(B)), reh’g
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Conclusion
[15] For the foregoing reasons, we affirm Crump’s conviction and sentence for
dealing in methamphetamine as a class B felony.
[16] Affirmed.
Mathias, J., concurs.
Robb, J., concurs in result without opinion.
denied; Chappell v. State, 966 N.E.2d 124, 134 n.10 (Ind. Ct. App. 2012) (noting that any error in failing to
consider a mitigating factor is harmless if the sentence is not inappropriate), trans. denied.
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