Holly A. Jen v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Nov 01 2016, 9:35 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Gregory L. Fumarolo Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Holly A. Jen, November 1, 2016
Appellant-Defendant, Court of Appeals Case No.
02A03-1601-CR-172
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D05-1405-FB-94
Robb, Judge.
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Case Summary and Issue
[1] In June 2014, Holly A. Jen pleaded guilty to six charges, the most serious of
which was dealing in methamphetamine, a Class B felony. Her plea was taken
under advisement and she was placed in the Allen County Drug Court Program
(“Drug Court”). In November 2015, the trial court revoked Jen’s participation
in Drug Court, accepted her plea, and sentenced her to ten years in the Indiana
Department of Correction, with two years suspended to probation. On appeal,
Jen raises only the issue of whether the sentence imposed by the trial court is
inappropriate in light of the nature of her offenses and her character.
Concluding Jen’s sentence is not inappropriate, we affirm.
Facts and Procedural History
[2] On May 22, 2014, officers of the Fort Wayne Police Department executed a
search warrant at Jen’s residence. In Jen’s home, the officers discovered
evidence of a “one pot” method for manufacturing methamphetamine.
Appellant’s Appendix at 15. In addition, the officers discovered bottles located
in Jen’s kitchen freezer containing a sludge that tested positive for ammonia
gas, lithium strips from fragmented lithium batteries, drain cleaner, make-shift
bottles used as hydrochloric gas generators, and numerous cold medicine and
pseudoephedrine packs, all of which are common precursors used in the
manufacturing of methamphetamine. Additional paraphernalia used to
introduce drugs into the body was discovered in a purse on the kitchen table
and waste from methamphetamine production was found in Jen’s trash. Jen
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admitted to purchasing the precursors. Jen informed the officers that her two
children lived in the home, but Jen’s ex-husband had picked them up earlier
that day.
[3] The State charged Jen with Count I, dealing in methamphetamine, a Class B
felony; Count II, neglect of a dependent, a Class C felony; Count III,
maintaining a common nuisance, a Class D felony; Count IV, possession of
chemical reagents or precursors with the intent to manufacture, a Class D
felony; Count V, dumping controlled substance waste, a Class D felony; and
Count VI, possession of paraphernalia, a Class A misdemeanor. On June 16,
2014, Jen pleaded guilty to all charges and entered into an agreement to
participate in Drug Court, which concentrates on the rehabilitation of addicts.
The State agreed to dismiss all charges if Jen successfully completed Drug
Court.
[4] The trial court terminated Jen’s Drug Court participation in November of 2015
after Jen tested positive for morphine use on two separate occasions.
Consequently, at a sentencing hearing on December 22, 2015, the trial court
accepted Jen’s guilty plea, entered judgments of conviction on all counts, and
sentenced Jen to ten years in the Department of Correction with two of those
years suspended to probation.1 Jen now appeals her sentence.
1
Jen was sentenced to ten years with eight years executed and two years suspended to supervised probation
for Count I, four years for Count II, two years for each of Counts III, IV, and V, and one year for Count VI.
The sentences on Counts II-VI were ordered to be served concurrently with the sentence on Count I. Jen
specifically challenges only the sentence imposed on Count I. See Brief of Appellant at 1. However,
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Discussion and Decision
I. Standard of Review
[5] “The Court may revise a sentence authorized by statute 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.” Ind. Appellate Rule 7(B). The burden rests on the defendant to
persuade the court that his or her sentence is inappropriate. Reid v. State, 876
N.E.2d 1114, 1116 (Ind. 2007). When reviewing a sentence, Rule 7(B) does not
require us to be “very deferential” to the trial court’s decision, yet due
consideration must still be given to that decision. Williams v. State, 891 N.E.2d
621, 633 (Ind. Ct. App. 2008). This court concentrates “less on comparing the
facts of this case to others, whether real or hypothetical, and more on focusing
on the nature, extent, and depravity of the offense for which the defendant is
being sentenced, and what it reveals about the defendant’s character.” Paul v.
State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008) (quoting Brown v. State, 760
N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied), trans. denied. Whether we
regard a sentence as inappropriate is determined by the “culpability of the
defendant, the severity of the crime, the damage done to others, and myriad
other factors that come to light in a given case.” Cardwell, 895 N.E.2d at 1224.
“[u]ltimately the length of the aggregate sentence and how it is to be served are the issues that matter. . . .
[W]hether these are derived from multiple or single counts, involve maximum or minimum sentences, and
are concurrent or consecutive is of far less significance than the aggregate term of years.” Cardwell v. State,
895 N.E.2d 1219, 1224 (Ind. 2008). We therefore review Jen’s sentence holistically, rather than focusing
only on Count I.
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“The principal role of appellate review should be to attempt to leaven the
outliers . . . .” Id. at 1225.
II. Inappropriate Sentence
[6] Jen argues her ten-year sentence with eight years executed and two years
suspended to probation is inappropriate and requests it be revised to an eight-
year sentence with six years executed and two years suspended to probation.2
[7] First, we consider the nature of the offenses. “When considering the nature of
the offense, the advisory sentence is the starting point to determine the
appropriateness of a sentence.” Wells v. State, 2 N.E.3d 123, 131 (Ind. Ct. App.
2014) (citation omitted), trans. denied. Jen received a ten-year sentence, which is
the advisory sentence for her most serious offense, Class B felony dealing in
methamphetamine. See Ind. Code § 35-50-2-5(a) (“A person who commits a
Class B felony . . . shall be imprisoned for a fixed term of between six (6) and
twenty (20) years, with the advisory sentence being ten (10) years.”). Jen
pleaded guilty to the six charges against her with the opportunity to have those
charges dismissed for successful participation in Drug Court. Only after she
failed to comply with the terms and conditions of Drug Court—specifically by
doing drugs while in the program—did the trial court sentence Jen to the
advisory term for her most serious offense and order the sentences on the
2
Under the sentencing statues in effect at the time Jen committed her crimes, she faces a mandatory
minimum executed term of six years because of a prior felony conviction. See Ind. Code § 35-50-2-2(b)(1)
(2012).
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additional offenses to be served concurrently. If Jen’s sentence was an outlier,
it was on the lenient end of the spectrum as Jen faced a sentence of up to twenty
years for Count I alone, with the possibility of being ordered to serve some or
all of her other sentences consecutively.
[8] At the time police searched Jen’s house, they discovered numerous chemical
reagents, precursors, and volatile substances used in the manufacturing of
methamphetamine. For example, several bottles containing a sludge that tested
positive for ammonia gas were stored in the kitchen freezer intermingled with
frozen food. As the State notes, the “one pot” method of manufacturing
methamphetamine is extremely dangerous as such practices are prone to cause
explosions, and, at the very least, release harmful fumes that may contaminate
a home. See Brief of Appellee at 13. Jen repeatedly exposed her children to the
potential dangers associated with the volatile process of manufacturing
methamphetamine. Further, Jen’s house was located in a residential area, and
her conduct also exposed her neighbors to potential harm. “One factor we
consider when determining the appropriateness of a deviation from the advisory
sentence is whether there is anything more or less egregious about the offense
. . . that makes it different from the ‘typical’ offense accounted for by the
legislature when it set the advisory sentence.” Wells, 2 N.E.3d at 131. Based
upon the reckless manner in which Jen placed her neighbors and especially her
children in harm’s way, there is certainly nothing about the nature of Jen’s
offenses that makes them less egregious than the typical drug offense so as to
warrant a sentence less than the advisory.
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[9] Second, we consider the character of the offender. One relevant fact reflecting a
defendant’s character is the defendant’s criminal history. Id. The significance
of a criminal history varies given the gravity, nature, and number of prior
offenses in relation to the current offense. Id. Jen does not have an extensive
criminal history, but what criminal history she has is nonetheless indicative of
her character. Jen has one juvenile adjudication for unauthorized use of a
motor vehicle, for which she was placed on probation. In 2003, Jen was
sentenced to ten years for dealing in cocaine or a narcotic drug, a Class B
felony, with eight years suspended, and she was allowed to serve the executed
portion of her sentence on home detention. In 2013, Jen was sentenced to sixty
days in the Allen County Jail for operating a vehicle while intoxicated, and the
entire sentence was suspended. Jen’s past conduct exhibits her repeated
disregard for the laws of this state. In addition, she has consistently been
offered leniency in sentencing but has continued to commit crimes. While Jen’s
previous offenses are not numerous and range in gravity, the fact that Jen has
been previously convicted of dealing narcotics establishes she understood the
severity of her crimes and nonetheless engaged in the current illegal activities.
[10] Beyond Jen’s criminal history, she failed to place the interests of her children
above her own, both by using drugs and by manufacturing methamphetamine
in their home. While it is clear from Jen’s long history of substance abuse that
she struggles with addiction, she has also had opportunities for treatment and
rehabilitation and has failed to benefit from them. For example, Jen had the
opportunity to have her charges dismissed in the present case upon successful
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completion of Drug Court. Jen’s participation in the program was terminated
when she continued to abuse drugs despite nearly eighteen months in the
program. Consequently, Jen has also failed to persuade us that her character
warrants a reduced sentence.
Conclusion
[11] Jen’s sentence is not inappropriate in light of the nature of her offenses and her
character. We therefore affirm Jen’s sentence of ten years, with eight years
executed and two years suspended to supervised probation.
[12] Affirmed.
Mathias, J., and Brown, J., concur.
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