Jesslyn Powell 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 Sep 30 2019, 10:59 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
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
Sierra A. Murray
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jesslyn Powell, September 30, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-809
v. Appeal from the Jefferson Circuit
Court
State of Indiana, The Honorable Steven M. Fleece,
Appellee-Plaintiff Senior Judge
Trial Court Cause No.
39C01-1808-F3-866
Crone, Judge.
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Case Summary
[1] Jesslyn Powell appeals her nine-year sentence imposed by the trial court
following her guilty plea to level 3 felony conspiracy to deal methamphetamine.
She argues that her sentence is inappropriate in light of the nature of the offense
and her character. Finding that Powell has not met her burden of
demonstrating that her sentence is inappropriate, we affirm.
Facts and Procedural History
[2] On August 17, 2018, Powell facilitated a purchase of a half-ounce of
methamphetamine between her co-conspirator, Robert Taylor, and her
distributor in Louisville, Kentucky. Taylor desired to purchase the half-ounce,
and Powell knew that her distributor in Louisville dealt in large amounts of
methamphetamine. Powell and Taylor drove to Louisville and made the
purchase. On their way back from Louisville, Taylor immediately sold a
quarter of an ounce to a person in Clark County, Indiana. Afterwards, Powell
and Taylor returned to a home where Taylor had been staying in Jefferson
County. According to the probable cause affidavit, the Madison Police
Department executed a search warrant at the home regarding a
methamphetamine investigation. Powell, Taylor, and another female were
inside. During the search of the home, officers found 9.2 grams of
methamphetamine, multiple bags used to package methamphetamine for sale,
digital scales, 59 Alprazolam pills, drug paraphernalia, and a plastic tub that
contained crystalline pieces that tested positive for methamphetamine. Powell
was subsequently arrested, and a search of her purse revealed a set of digital
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scales and clear baggies containing a crystalline substance. Appellant’s App.
Vol. 2 at 15-16.
[3] The State charged Powell with level 3 felony dealing in methamphetamine,
level 3 felony conspiracy to deal methamphetamine, level 5 felony possession of
methamphetamine, class A misdemeanor possession of a controlled substance,
and class C misdemeanor possession of paraphernalia. In September 2018,
pursuant to a written plea agreement, Powell pled guilty to the conspiracy
charge, and the State agreed to drop the other charges. The plea agreement left
sentencing to the trial court’s discretion. Pursuant to the plea agreement,
Powell waived her right to challenge her sentence under Indiana Appellate Rule
7(B). Id. at 46. However, during the guilty plea hearing, the trial court
informed Powell, that she could appeal her sentence, without any objections
from either party’s counsel.1 Powell also signed an addendum to the plea
agreement in which she agreed to work as a confidential informant for the
Indiana State Police in exchange for her release from jail. Powell failed to
abide by the terms of the addendum. During sentencing, the trial court found
no compelling aggravating or mitigating circumstances but did note Powell’s
past convictions for possession of cocaine, marijuana, and narcotic drugs. The
trial court sentenced Powell to nine years executed. This appeal ensued.
1
Consequently, the waiver provision in the plea agreement was a nullity. See Ricci v. State, 894 N.E.2d 1089,
1093-94 (Ind. Ct. App. 2008) (finding that Ricci did not surrender right to appeal his sentence
notwithstanding waiver provision in plea agreement when trial court clearly stated at plea hearing, without
any objection from either party’s counsel, that Ricci could appeal his sentence), trans. denied.
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Discussion and Decision
[4] Powell requests that we reduce her sentence pursuant to Indiana Appellate Rule
7(B), which 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.” “Sentence review under Appellate Rule 7(B) is very deferential to
the trial court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “Such
deference 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). The principal role of appellate review is to
attempt to “leaven the outliers[.]” 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, 972 N.E.2d
at 876.
[5] Regarding the nature of the offense, “the advisory sentence is the starting point
the Legislature has selected as an appropriate sentence for the crime
committed.” Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on
reh’g, 875 N.E.2d 218. The sentencing range for a level 3 felony is between three
and sixteen years, with an advisory sentence of nine years. Ind. Code § 35-50-2-
5(b). As stated above, the trial court imposed a sentence of nine years. “[T]he
defendant bears a particularly heavy burden in persuading us that [her] sentence
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is inappropriate when the trial court imposes the advisory sentence.” Fernbach
v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans denied.
[6] When reviewing the nature of the offense, this Court considers the “details and
circumstances surrounding the offense and the defendant’s participation
therein.” Morris v. State, 114 N.E.3d 531, 539 (Ind. Ct. App. 2018), trans. denied
(2019). Powell first contends that the nature of the offense did not warrant the
sentence she received because her involvement in the crime was “limited to
assisting a local dealer in arranging a transaction with a drug distributor.”
Appellant’s Br. at 10. Powell downplays the seriousness of her involvement in
the offense. Here, Powell knew that her distributor in Kentucky dealt in large
quantities of methamphetamine. Powell not only facilitated the drug
transaction but also participated in the purchase of the half an ounce of
methamphetamine. She also had knowledge that Taylor immediately sold a
quarter of an ounce of methamphetamine in Indiana. Powell was at a house
where Taylor was staying when police officers executed a search warrant and
found 9.2 grams of methamphetamine, narcotics, digital scales and baggies
used to package and sell methamphetamine, drug paraphernalia, and crystalline
pieces that tested positive for methamphetamine. After Powell was arrested, a
search of her purse revealed digital scales and baggies containing crystalline
substances, which indicates an active role in the deadly methamphetamine
trade.
[7] Powell also claims that her offense “did not involve any harm or intent to cause
harm to any other person.” Id. We disagree. As the trial court pointed out
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during sentencing, “you’ve been on the bad guy side in this struggle that we
have in our society in trying to get rid of [drugs]” and “by helping in the
distribution of [drugs] you’ve hurt other folks.” Tr. Vol. 2 at 61. Clearly, the
nature of the offense does not support a reduction of Powell’s sentence.
[8] With respect to Powell’s character, we note that “[t]he character of the offender
is found in what we learn of the offender’s life and conduct.” Perry v. State, 78
N.E.3d 1, 13 (Ind. Ct. App. 2017). “The significance of a criminal history in
assessing a defendant’s character and an appropriate sentence varies based on
the gravity, nature, and number of prior offenses in relation to the current
offense.” Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007).
Powell’s criminal history includes convictions for illegal consumption of
alcohol, two convictions for operating a vehicle without a license, operating a
vehicle while intoxicated endangering a person, operating a vehicle with an
ACE of .15 or more, and possession of marijuana, cocaine, and narcotic drugs.
She also had her probation revoked for nonreporting. Appellant’s App. Vol. 2
at 58-59.
[9] Powell contends that she took responsibility and pled guilty to the “top count
she was charged with.” Appellant’s Br. at 10. While Powell did plead guilty,
she received a significant benefit in doing so. Powell faced almost forty years in
prison. As a result of the plea agreement, the State dismissed two felony and
two misdemeanor charges. While we commend Powell for twelve years of
sobriety, unfortunately, she went back to using and distributing illegal drugs
and continues to surround herself with others who do the same. In fact,
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between Powell’s guilty plea and sentencing hearings, her live-in boyfriend,
who has an extensive criminal record, was arrested in their home for dealing
marijuana and possessing hypodermic needles that tested positive for
methamphetamine. Appellant’s Br. at 12; Tr. Vol. 2 at 53. This belies Powell’s
purported desire to “avoid people associated with illegal drug activity.” Id.[10] Powell also emphasizes that she offered to assist law enforcement in controlled
buys from known drug dealers. Powell signed an addendum to her plea
agreement which allowed her to be released from jail in exchange for her
assistance. However, according to Indiana State Police Detective Mark
Jenkins, communication on setting up drug buys was difficult with Powell, and
sometimes days would go by before she would respond to him. Tr. Vol. 2 at 44,
51. Detective Jenkins indicated that after five months, Powell failed to assist
them with completing drug buys. Powell argues that she “made efforts to set up
buys but they did not coincide with law enforcement’s timelines.” Appellant’s
Br. at 12. Powell admitted that she “could have tried hard[er]” but that she
“would get frustrated … had no life … and couldn’t do anything because law
enforcement wanted her to talk to a dealer every single day.” Tr. Vol. 2 at 25,
34. Powell had an opportunity to work with law enforcement to eliminate or
reduce drug dealing in the community. We agree with the State that she made
the agreement with law enforcement in order to get out of jail and not to help
with the pervasive drug problem affecting the community. Powell’s behavior
does not reflect positively on her character.
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[11] In sum, Powell has not persuaded us that her sentence is inappropriate in light
of the nature of the offense or her character. Accordingly, we affirm.
[12] Affirmed.
Baker, J., and Kirsch, J., concur.
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