Betty J. Richards 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 Nov 20 2019, 7:06 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
Jennifer A. Joas Curtis T. Hill, Jr.
Madison, Indiana Attorney General of Indiana
Samantha M. Sumcad
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Betty J. Richards, November 20, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1315
v. Appeal from the Ripley Circuit
Court
State of Indiana, The Honorable Ryan J. King,
Appellee-Plaintiff Judge
Trial Court Cause No.
69C01-1808-F3-2
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1315 | November 20, 2019 Page 1 of 7
Case Summary
[1] Betty Richards pled guilty to Level 3 felony dealing in methamphetamine and
was sentenced to twelve years. Richards appeals, arguing that her sentence is
inappropriate in light of the nature of the offense and her character.
[2] We affirm.
Facts & Procedural History
[3] On August 2, 2018, Indiana State Trooper Joseph May went to Richards’s
home looking for Jeremy Wall, Richards’s son, on a felony probation violation
warrant. Richards answered the door and informed Trooper May that Wall
was not there. Richards allowed Trooper May to come inside and search the
residence for Wall. While looking through the southernmost bedroom that
Richards identified as being her other son’s room, Trooper May observed in
plain view a prescription bottle containing Alprazolam, a controlled substance
prescribed to Walter Dixon. When questioned whether Dixon lived there,
Richards explained that Dixon was her boyfriend and that he had passed away
in March.
[4] While another trooper spoke with Richards about the medication, Trooper May
saw in plain view on a coffee table in the living room a plastic bag that
contained pills later identified as Alprazolam. Trooper May confirmed that no
one living in the home had a valid prescription for Alprazolam. He then
advised Richards of her Miranda rights and she indicated that she understood
them. Richards then admitted to smoking marijuana and methamphetamine a
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few days prior. She also admitted to selling methamphetamine and informed
Trooper May that he would likely find glass pipes in her bedroom and seven
grams of methamphetamine in her purse. 1
[5] After Trooper May gave Richards her Pirtle warning, Richards “allowed” him
to search her bedroom and belongings. Appellant’s Appendix Vol. Two at 14. The
search revealed that Richards had over $380 in cash in denominations of $20
bills or smaller. Richards retrieved a glass smoking pipe that was hidden behind
the television in her bedroom. Eventually, Trooper May secured a search
warrant for the residence. During the continued search of the residence,
officers located three plastic bags containing a crystalline substance, later
identified as methamphetamine, under the television in Richards’s bedroom.
Located with the methamphetamine, Officers found a cut plastic straw and
three hypodermic syringes.
[6] During a recorded interview, Richards admitted that she had seven to eight
grams of methamphetamine in the house, that she smokes methamphetamine in
the house, and that she had been selling methamphetamine a couple times a
week for about a month to “three people at the most.” Id. at 15.
[7] On August 7, 2018, Richards was charged with Count I, dealing in
methamphetamine as a Level 3 felony; Count II, unlawful possession of a
1
Richards could not find the methamphetamine she claimed was in her purse and suggested that someone
must have taken it.
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syringe as a Level 6 felony; Count III, possession of a controlled substance as a
Class A misdemeanor; Count IV, possession of paraphernalia as a Class C
misdemeanor; and Count V, maintaining a common nuisance as a Level 6
felony. Richards entered into a plea agreement wherein she agreed to plead
guilty to Count I and the State agreed to dismiss the remaining charges and to a
sentencing cap of twelve years, which is four years less than the maximum
permitted for a Level 3 felony. The trial court held a combined guilty plea and
sentencing hearing on January 15, 2019. After accepting Richards’s guilty plea,
the trial court sentenced Richards to twelve years incarceration. Richards now
appeals. Additional evidence will be provided as necessary.
Discussion & Decision
[8] Article 7, section 4 of the Indiana Constitution grants our Supreme Court the
power to review and revise criminal sentences. See Knapp v. State, 9 N.E.3d
1274, 1292 (Ind. 2014), cert. denied, 135 S.Ct. 978 (2015). Pursuant to Ind.
Appellate Rule 7, the Supreme Court authorized this court to perform the same
task. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Per App. R. 7(B),
we may revise a sentence “if after due consideration of the trial court’s decision,
the Court finds that the sentence is inappropriate in light of the nature of the
offense and the character of the offender.” Inman v. State, 4 N.E.3d 190, 203
(Ind. 2014) (quoting App. R. 7). “Sentencing 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
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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).
[9] “The principal role of such review is to attempt to leaven the outliers.”
Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is not our goal in this
endeavor to achieve the perceived “correct” sentence in each case. Knapp, 9
N.E.3d at 1292. Accordingly, “the question under Appellate Rule 7(B) is not
whether another sentence is more appropriate; rather, the question is whether
the sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind.
Ct. App. 2008) (emphasis in original).
[10] In order to assess the appropriateness of a sentence, we first look to the
statutory range established for the classification of the relevant offense. Here,
Richards pled guilty to a Level 3 felony, which carries with it a sentencing
range of three to sixteen years and an advisory sentence of nine years. See Ind.
Code § 35-50-2-5.
[11] With regard to the nature of the offense, Richards admitted to dealing
methamphetamine to several people on several occasions, in addition to using it
herself. We further note that methamphetamine and paraphernalia were found
in Richards’s bedroom, which is where her grandchildren slept when they
visited.
[12] As to Richards’s character, we note that this is not her first encounter with the
criminal system. In 1998, Richards was charged with Class D felony operating
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while intoxicated (OWI) 2 but pled guilty to receive an alternate misdemeanor
sentence such that her record would reflect a misdemeanor conviction after the
completion of probation. Two months after pleading guilty, Richards violated
the terms of her probation. As a result, Richards’s probation was extended. In
2005, Richards was charged with Class D felony OWI as a habitual substance
offender. Richards pled guilty to a Class A misdemeanor and was sentenced to
probation. Shortly thereafter, a petition to revoke Richards’s probation was
filed. Over ten years later, Richards was brought before the court and she
admitted to violating probation. The court found that Richards absconded from
the jurisdiction to avoid having her probation revoked.
[13] Although Richards claims that her prior criminal convictions are unrelated to
the instant offense because they did not involve methamphetamine, we note
that her prior convictions do involve substance abuse. Indeed, on account of
her prior convictions, Richards was required to participate in substance-abuse
treatment. We similarly reject her claim that because she only recently started
using methamphetamine, she should be viewed as a new drug addict and
afforded leniency because of it. Richards is not new to substance abuse. She
has simply substituted one addiction for another. This time around, she not
only used methamphetamine, but she sold it to other individuals. At
sentencing, the trial court stated that it believed Richards understated the
2
Richards was also convicted of misdemeanor OWI in 1985.
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number of times she sold methamphetamine, noting specifically that she had
$380 dollars in her purse.
[14] While neither the nature of the offense or character of the offender are
particularly egregious, we note that Richards’s plea agreement is “strong and
persuasive evidence of sentence reasonableness and appropriateness.” Childress
v. State, 848 N.E.2d 1073, 1081 (Ind. 2006) (Dickson, J., concurring). We
should “grant relief only in the most rare, exceptional cases.” Id. Richards has
not demonstrated that this is such a case. In short, we cannot say that the
twelve-year sentence imposed by the trial court is inappropriate.
[15] Judgment affirmed.
Robb, J. and Bradford, J, concur.
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