Camille R. Fincher v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
Feb 26 2016, 8:42 am
this Memorandum Decision shall not be
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
P. Stephen Miller Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Camille R. Fincher, February 26, 2016
Appellant-Defendant, Court of Appeals Case No.
02A03-1505-CR-508
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D04-1405-FD-587
May, Judge.
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[1] Camille Fincher appeals the three-year sentence she received for Class D felony
theft. 1 Because the sentence is not inappropriate and the trial court did not
abuse its discretion, we affirm.
Facts and Procedural History
[2] On May 20, 2014, asset protection employees at a Fort Wayne Walmart
observed Fincher placing $337.14 worth of merchandise into shopping bags she
had brought into the store and placed inside a cart. She then attempted to exit
the store without paying for the merchandise and was apprehended by Fort
Wayne Police officers. Fincher was arrested and transported to the police
station, where she admitted the attempted theft.
[3] On May 27, 2014, the State charged Fincher with Class D felony theft. Fincher
agreed to plead guilty, and her sentence was deferred to allow her to participate
in the drug court program. Under that program, Fincher was permitted to live
at home, and agreed to refrain from possessing any alcohol, drug paraphernalia,
or illegal controlled substances. She also was required to obey all laws,
maintain good behavior, and immediately notify her case manager if she had
contact with law enforcement officials.
[4] Fincher’s participation in the drug court program was unsuccessful. Fincher’s
first violation occurred in September 2014 when she failed a drug test and was
1
Ind. Code § 35-43-4-2(a) (2009).
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given five hours of community service as a sanction. Fincher then was
compliant with the program for roughly two months. However, on November
24, 2014, marijuana was found in Fincher’s basement during a home visit. For
this second violation, Fincher was sanctioned with another five hours of
community service and required to write an essay. Fincher next failed to
appear for a drug screening scheduled for December 16, 2014, and was
sanctioned an additional five hours of community service as a result. Finally,
on January 16, 2015, a home visit revealed empty beer cans and pill bottles
containing controlled substances for which Fincher did not have a prescription.
Fincher had also been spotted driving on a suspended driver’s license. Fincher
was remanded to jail until placement in transitional living was arranged.
[5] On February 2, 2015, Fincher was released from custody and assigned to
Charis House, transitional living center. However, before entering Charis
House, Fincher committed multiple violations including unauthorized
prescription medicine use, missed appointments, missed support group
meetings, and failure to report a police contact. Fincher was ordered to report
to jail on February 27, 2015, and she was released on March 1, 2015.
[6] On March 2, 2015, Fincher moved into Charis House with her grandson. By
April 6, 2015, Fincher was placed on restriction at Charis House pending the
follow-up of a positive alcohol test she submitted in March. On April 7, 2015,
Fincher violated her facility behavioral contract by leaving the Charis House
without permission. Fincher was discharged from the transitional living facility.
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[7] As a result of the discharge, the State filed a petition to terminate Fincher from
the drug court program. At the sentencing hearing, after hearing evidence and
arguments regarding sentencing, the trial court found Fincher’s guilty plea a
mitigating circumstance, but found Fincher’s criminal history and multiple
failed attempts at rehabilitation from 1981 to 2015 to be significant aggravators.
The trial court sentenced Fincher to a three-year fully-executed sentence.
Discussion and Decision
Abuse of Discretion
[8] Because the sentence imposed is within the statutory range, we review the trial
court’s decision only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d
482, 490 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). An abuse of
discretion occurs if the sentencing decision is clearly against the logic and effect
of the facts and circumstances before the court, or the reasonable, probable, and
actual deductions to be drawn therefrom. Id.
[9] Fincher argues the trial court abused its discretion in sentencing her to three
years imprisonment. Specifically, Fincher claims the court abused its discretion
in determining that she had “failed to complete every program in which she had
been placed and that she had been revoked from every program she had been
given.” (Appellant’s Br. at 7.) However, Fincher mischaracterizes the trial
court’s statement and ignores essential parts of the court’s reasoning.
[10] Fincher points to specific instances where she participated in substance abuse
treatment programs with no documentation of failure to complete the
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programs. However, the trial court explicitly mentioned these attempts at
rehabilitation in its decision:
You’ve had multiple treatment efforts through Richmond State
Hospital, Park Center, Brown and Associates, the Women’s
Bureau, Washington House and then through the drug court
program and you continue your criminal conduct. I’m not sure
ma’am what else there is that the court can offer.
(May 13, 2015 Hearing Tr. at 18.) 2 Indeed, the trial court acknowledged
Fincher’s multiple efforts to complete treatment but noted that none of these
programs resulted in successful rehabilitation of Fincher.
[11] The State argues that even if Fincher completed a program, she did not benefit
therefrom. (Br. of Appellee at 7.) We agree. Fincher has been given the
benefit of short jail sentences, longer jail sentences, community service,
electronic monitoring, the community transition program, probation, home
detention, parole, and the drug court program. Despite the numerous
opportunities the State has given her to rehabilitate herself, Fincher continues to
commit additional crimes.
[12] Fincher’s failure to benefit from past rehabilitation efforts is clearly supported
by the record. While Fincher may not have failed or been removed from
“every” rehabilitation program in which she had ever been placed, she certainly
2
We note the hindrance caused by the Court Reporter’s failure to number the Transcript pages consecutively
pursuant to Ind. Appellate Rule 28(A)(2).
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had been removed from every program the court had offered her since she pled
guilty to the theft for which she was being sentenced. We cannot say that the
trial court’s decision is clearly against the logic and effect of the facts and
circumstances. Therefore, the trial court did not abuse its discretion. See, e.g.,
Smith v. State, 929 N.E.2d 255, 259 (Ind. Ct. App. 2010) (no abuse of discretion
where record supported trial court’s findings), trans. denied.
Inappropriate Sentence
[13] Fincher alleges her three-year sentence is inappropriate. We may revise a
sentence if it is inappropriate in light of the nature of the offense and the
character of the offender. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App.
2008) (citing Ind. Appellate Rule 7(B)). We consider not only the aggravators
and mitigators found by the trial court, but also any other facts appearing in the
record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied.
Our review is deferential to the trial court’s decision, and our goal is to
determine whether Fincher’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.
[14] When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence. Anglemeyer, 868 N.E.2d at
494. The advisory sentence for a Class D felony theft is one and a half years,
with a range of six months to three years. Ind. Code § 35-50-2-7(a) (2014).
Fincher received a three-year sentence. One factor we consider when
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determining the appropriateness of a deviation from the advisory sentence is
whether there is anything more or less egregious about the offense committed
by the defendant that makes it different from the “typical” offense accounted for
by the legislature when it set the advisory sentence. Rich v. State, 890 N.E.2d
44, 54 (Ind. Ct. App. 2008), trans. denied.
[15] Fincher attempted to steal items from Walmart totaling $337.14. She did so by
placing Walmart shopping bags into a cart and then placing numerous items
including laundry detergent, DVDs, clothing, shoes, and other items into those
shopping bags. Fincher passed all points of pay and attempted to exit the store
without paying for any of these items. This was not a momentary lapse in
judgment, but an intentional and carefully calculated plan to deprive Walmart
of its property.
[16] As for Fincher’s character, one relevant fact is a defendant’s criminal history.
Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance
of a criminal history in assessing a defendant’s character varies based on the
gravity, nature, and number of prior offenses in relation to the current offense.
Id. Fincher’s criminal history consists of two juvenile delinquency
adjudications, eighteen misdemeanor convictions, and three felony
convictions—one of forgery and two of theft.
[17] Fincher cites Buchanan v. State, 767 N.E.2d 967 (Ind. 2002), for the proposition
that “a maximum sentence is to be reserved for the worst of the worst.” (Br. of
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Appellant at 9 n.2.) 3 Fincher’s reliance on Buchanan is misplaced. In Buchanan,
the defendant was convicted of Class A felony child molesting and the trial
court imposed the maximum sentence of fifty years. Buchanan, 767 N.E.2d at
969. Our Indiana Supreme Court reduced Buchanan’s sentence from the
maximum fifty years to forty years, finding Buchanan “[was] not within the
class of offenders for whom the maximum possible sentence is appropriate.” Id.
at 974. One of the factors considered by the court was that “the offense was not
part of a protracted episode of molestation but a one-time occurrence.” Id. at
973. The court also noted:
Although maximum sentences are ordinarily appropriate for the
worst offenders, we refer generally to the class of offenses and
offenders that warrant the maximum punishment. But such class
encompasses a considerable variety of offenses and offenders.
Id. (emphasis in original).
[18] We are not persuaded that the three-year maximum sentence imposed in this
case was inappropriate. Unlike the defendant in Buchanan, whose offense was a
one-time occurrence, Fincher has a criminal history of committing multiple
thefts. The record evidences this theft was the result of a carefully carried out
plan to steal property from Walmart. While Fincher contends that her “mental
3
Fincher claims a proper consideration of the defendant’s mental illness warrants a finding that the
maximum sentence ordered was not appropriate, but she did not assert this mitigator at the sentencing
hearing. See Koch v. State, 952 N.E.2d 359, 374-75 (Ind. Ct. App. 2011) (waiving mitigators that had not been
raised at sentencing).
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health difficulties . . . more readily indicate the need for probation served in a
mental health facility[,]” (Br. of Appellant at 11), the record is replete with
instances of Fincher’s inability to comply with rehabilitation. She continues to
offend. Her inability to comply with even the simplest requirements reflects
poorly on her judgment and character. (Id.) (“In this case the lack of
compliance was not imbibing alcohol or using drugs, the lack of compliance
was failing to stay at Charis house and going on an Easter egg hunt with her
grandson.”).
[19] Based on these facts, we cannot say the sentence is inappropriate in light of
Fincher’s character and the nature of her offense. See, e.g., King v. State, 769
N.E.2d 239, 240 (Ind. Ct. App. 2002) (finding that the defendant’s lengthy
criminal history supported his maximum three-year sentence for Class D felony
theft).
Conclusion
[20] The trial court did not abuse its discretion in sentencing Fincher to three years
imprisonment for a Class D felony theft. Fincher did not demonstrate that her
sentence is inappropriate based on the nature of her offense or her character.
Accordingly, we affirm.
[21] Affirmed.
Najam, J., and Riley, J., concur.
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