Lacey M. Derringer 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 Jan 23 2020, 10:25 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
R. Patrick Magrath Curtis T. Hill, Jr.
Madison, Indiana Attorney General of Indiana
Thomas J. Flynn
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lacey M. Derringer, January 23, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1580
v. Appeal from the Ripley Superior
Court
State of Indiana, The Honorable Jeffrey Sharp,
Appellee-Plaintiff. Judge
Trial Court Cause No.
69D01-1808-F2-5
Tavitas, Judge.
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Case Summary
[1] Lacey Derringer appeals her sentence of fifteen years, received pursuant to her
guilty plea, for dealing in ten or more grams of methamphetamine, a Level 2
felony. We affirm.
Issue
[2] Derringer raises one issue, which we restate as whether her sentence is
inappropriate in light of the nature of her offense and her character.
Facts
[3] On July 25, 2018, Officer Trevor Comer, with the Batesville Police
Department, initiated a traffic stop of a vehicle driven by Derringer. As Officer
Comer was writing Derringer a “warning ticket,” Officer Danny Hamilton
arrived with a K-9 officer who detected the presence of narcotics inside the
vehicle. Appellant’s App. Vol. II p. 13. Upon searching the vehicle, Officer
Comer identified a clear plastic baggie containing 12.9 grams of
methamphetamine, digital scales, and a ledger with names and dollar amounts.
Derringer admitted to Officer Comer that she transported methamphetamine
between Ohio and Indiana on three separate occasions to make money. On
August 21, 2018, Derringer was charged with Count I, dealing in ten or more
grams of methamphetamine, a Level 2 felony; Count II, maintaining a common
nuisance, a Level 6 felony; and Count III, possession of paraphernalia, a Class
C misdemeanor.
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[4] On April 17, 2019, Derringer and the State entered into a conditional plea
agreement, in which the parties agreed: (1) Derringer would plead guilty to
Count I; (2) the State would dismiss Counts II and III; and (3) Derringer would
be sentenced at the discretion of the trial court with a maximum possible
sentence of nineteen years. The trial court accepted the plea agreement.
[5] The trial court held a sentencing hearing on May 28, 2019. Derringer testified
regarding her drug addiction, which began when Derringer was eighteen or
nineteen years old. Derringer asked the trial court to send her to a treatment
facility instead of sentencing her to a fully executed sentence at the Indiana
Department of Correction (“DOC”). Derringer acknowledged on cross-
examination that her criminal history has escalated and that she was a courier
for drugs to “feed [her] addiction.” Tr. Vol. II p. 52. After hearing the evidence
and arguments of the parties, the trial court took the matter under advisement
and set sentencing pronouncement for two weeks later.
[6] On June 11, 2019, the trial court held a pronouncement of sentencing hearing
and entered a written sentencing order finding as aggravating factors:
Derringer’s criminal history; the nature and circumstances of the offense; and
Derringer was a high risk to re-offend. The trial court found as mitigating
factors: Derringer’s guilty plea; Derringer’s remorse; and Derringer’s
incarceration would be a hardship on her family. Specifically, twenty-six-year-
old Derringer has a four-year-old daughter and Derringer’s parents have
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guardianship over her daughter. 1 The trial court found the aggravating
circumstances outweighed the mitigating circumstances and sentenced
Derringer to fifteen years at the DOC. The trial court also ordered that, after
completion of half of Derringer’s sentence and successful completion of the
appropriate substance abuse treatment program determined by the DOC, the
trial court would consider modification of Derringer’s sentence. Derringer now
appeals her sentence.
Analysis
[7] Derringer asks that we review and revise 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.” The defendant bears the burden to persuade this court that his
or her sentence is inappropriate. Wilson v. State, 966 N.E.2d 1259, 1266 (Ind.
Ct. App. 2012) (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)),
trans. denied.
[8] In Indiana, trial courts can tailor an appropriate sentence to the circumstances
presented; the trial court’s judgment receives “considerable deference.” Sanders
v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017) (quoting Cardwell v. State, 895
1
When Derringer was arrested and officers asked about Derringer’s daughter, Derringer responded that her
parents “know the drill.” Appellant’s App. Vol. II p. 52.
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N.E.2d 1219, 1222 (Ind. Ct. App. 2008)), trans. denied. In conducting our
review, we do not look to see whether the defendant’s sentence is appropriate or
“if another sentence might be more appropriate; rather, the question is whether
the sentence imposed is inappropriate.” Sanders, 71 N.E.3d at 844 (citing King
v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008)).
[9] We look to the statutory range established for the classification of the offense.
Derringer pleaded guilty to dealing in ten or more grams of methamphetamine,
a Level 2 felony. The sentence for a Level 2 felony ranges from ten to thirty
years, with an advisory sentence of seventeen and one-half years. Here, the
trial court imposed a sentence of fifteen years, or two and one-half years below
the advisory sentence. The trial court also ordered that, upon completion of
half of her incarceration in the DOC and the DOC’s substance abuse treatment
program, the trial court would consider modification of Derringer’s sentence.
[10] Pursuant to Indiana Appellate Rule 7(B), we first review the nature of
Derringer’s offense. Derringer was a courier for methamphetamine, driving the
drugs between Ohio to Indiana to “feed [her] addiction.” Tr. Vol. II p. 52.
Derringer made the same trip to and from Ohio three times and had a ledger
with names and dollar amounts in her car.
[11] Next, we consider Derringer’s character. Derringer has a lengthy criminal
history, including convictions for: possession of marijuana, a Class A
misdemeanor, in 2012; possession of cocaine, a Level 6 felony, in 2015;
possession of a narcotic drug, a Level 6 felony, in 2015; unlawful possession of
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a syringe, a Level 6 felony, in 2015; operating a vehicle while intoxicated, a
Class A misdemeanor, in 2015; and neglect of a dependent, a Level 5 felony, in
2018. Derringer has also twice been found in violation of her probation. As the
sentencing order indicates, Derringer’s convictions have “escalated from
misdemeanor possession of marijuana in 2012 to the current dealing in
methamphetamine conviction.” Appellant’s App. Vol. II p. 52.
[12] Derringer argues, even though her sentence is below the advisory sentence,
there are several factors that warrant revision of her sentence, including: (1)
Derringer was cooperative with law enforcement; (2) Derringer provided law
enforcement with names and locations of others involved in drug activity; (3)
Derringer did not intend to cause harm and was instead merely serving as a
courier to satisfy her own addiction; (4) Derringer had supportive family who
were willing to provide her with a place to live; (5) Derringer suffered from a
substance abuse addiction; (6) despite this addiction, Derringer was making
progress toward and desired recovery; and (7) Derringer was remorseful,
embarrassed, and recognized her need to turn her life around.
[13] Although we commend Derringer for her cooperation with law enforcement
and for her desire to turn her life around, we cannot say this warrants
imposition of a revised sentence based upon the record before us. Derringer has
not convinced us that her fifteen-year sentence is inappropriate in light of the
nature of the offense and her character.
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Conclusion
[14] Derringer’s sentence is not inappropriate in light of the nature of the offense
and her character. We affirm.
[15] Affirmed.
Najam, J., and Vaidik, J., concur.
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