Court of Appeals of I ndiana | Memorandum Decision 02A03

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), 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.
A TTORNEY FOR A PPELLANT Donald J. Frew Fort Wayne, Indiana A TTORNEY S FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana


### I N T H E 

# COURT OF APPEALS OF INDIANA

Bonnie Motsch , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. July 27, 2015 Court of Appeals Ca u se No. 02A03

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- 451 Appeal from the Allen Superior Court Cause No. 02D06

- 1401

- FD

- 16; 02D06

- 1407

- FD

- 721; 02D06

- 1405

- CM

- 2130 The Honorable Frances C. Gull, Judge The Honorable Samuel Keirns, Magistrate


### Barnes, Judge .Court of Appeals of I ndiana | Memorandum Decision 02A03

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### Case Summary
[1] Bonnie Motsch appeals her sentence of six years after pleading guilty to Class D felony theft, Class A misdemeanor possession of paraphernalia, Class A misdemeanor driving while suspended, and Class D felony possession of a controlled substance. We affirm. 

### Issue
[2] Motsch raises one issue on appeal, which we restate as w hether her sentence is i nappropriate in light of the nature of the offenses committed and her character. 

### Facts
[3] On December 29, 2013, a Walmart loss p revention officer reported a theft incident involving Motsch. Motsch had placed s everal goods in her purse and went beyond all poi nts of sale without paying

. When the loss prevention officer attempt ed to stop her, Motsch started to run away . During the pursuit, Motsch attempted to hide her purse under a car

. T he purse was recovered with the many stolen items inside. Motsch admitt ed to stealing the it ems with the intention to resell them

. On January 3, 2014, the State charged Motsch with Class D felony theft under cause number 02D06

- 1401

- FD

- 16 (“FD

- 16”).

[4] While out on bond for the FD

- 16 offense , Motsch drove an uninsured vehicle with a suspended lic ense. While operating the car illegally with other passengers inside, Motsch placed a hypodermic needle on the dashboard.Court of Appeals of I ndiana | Memorandum Decision 02A03

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When pulled over by police officers, Motsch denied that any illegal substances
were in the vehicle . After obtai ning consent from the owner to search the vehicle, officers found Motsch’s hypodermic needle , which she admitted was hers and had been used to inject heroin a few days prior

. On May 29, 2014 , Motsch was charged with possession of paraphernalia and driving while suspended, both class A misdemeanors, along with two traffic infractions of operating a motor vehicle without financial responsibility and improper disp lay of a license plate on a vehicle, under cause number 02D06

- 1405

- CM

- 2130 (“CM

- 2130”).

[5] After M otsch failed to appear for a hearing, a warrant was issued for her arrest
. On July 1, 2014, she was arrested and had a controlled substance i n her possession. Motsch was charged with possession of a controlled substance, a class D felony , under cause num ber 02D06

- 1407

- FD

- 721 (“FD

- 721”)

. She committed this offense while out on bond under both FD

- 16 and CM

- 2130. On July 21, 2014, Motsch entered into a plea agreement whereby she agreed to plead guilty to theft, possession of paraphernalia, driving while su spended, and possession of a controlled substance. The State dismissed the traffic infractions.

[6] On November 20, 2014, under FD

- 16, Motsch was sentenced to two years and ordered to pay $103.11 in restitution. Under CM

- 2130, Motsch was sentenced
concurren tly to one year for possession of paraphernalia and one year for driving while suspended. Under FD

- 721, Motsch was sen tenced to three years. The sentence s will be served consecutively for an aggrega te sentence of six years. Motsch now appeals.Court of Appeals of I ndiana | Memorandum Decision 02A03

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### Analysis
[7] We assess whether Motsch’s sentence is inappropriate under Indiana Appellate Rule 7(B) in light of her character and the natur e of the offense. See Anglemyer v. State , 868 N.E.2d 482, 491 (Ind. 2007) . Although Rule 7(B) does not require us to be “extreme ly” deferential to a trial court’s sentencing decision, we still must give due consideration to that decision. Rutherford v. State , 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also understand and recognize the unique perspective a trial court brings to its sentencing decisions. Id . “Additionally, a defendant bears the burden of persuading the appellate court that his or her sentence is inappropriate.” Id

.
[8] The principal role of Rule 7(B) review “should be to attempt to leaven the outliers, and identif

y some guiding principles for trial courts and those charged with improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State , 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest

— the aggregate sentence

— rather than the trees

— consecutive or concurrent, number of counts, or length of the sentence on any individual count.” Id . Whether a sentence is inappropriate ultimately turns on the culpability of the defendant, the severity of th e crime, the damage done to others, and myriad other factors that come to light in a given case. Id . at 1224. When reviewing the appropriateness of a sentence under Rule 7(B), we may consider all aspects of the penal consequences imposed by the trial cou rt in sentencing the defendant, including whether aCourt of Appeals of I ndiana | Memorandum Decision 02A03

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portion of the sentence was suspended. Davidson v. State , 926 N.E.2d 1023, 1025 (Ind. 2010).

[9] Regarding the nature of the offenses, it is important to consider that Motsch committed several crimes within a short time period. We acknowledge that Motsch’s offenses were not particularly egregious or heinous ; however , the various crimes were comm itted less than a year a part.

[10] Motsch not only stole $100 worth of merchandise from Walm art, but the items she st ole were too damaged to be returned to stock. Less than a month later,

w hile o ut on bond for that offense , Motsch drove an uninsured vehicle with a suspended license. While operating the vehicle with other occupants inside, Motsch set a hypodermic needle on the dashboard. After being pulled over by police and questioned about contraband inside the car , Motsch did not inform officers about the hypodermic needle on the dash board and told officers that the vehicle contained no contraband. Following this ar rest, Motsch was ordered to rep ort to a drug court p rogram.
[11] Twenty

- one days after Motsch entered into the drug court p rogram, Motsch tested positive for both morphine and alcohol use. Two days late r, Motsch tested positive for drugs again . Less tha n a month after entering the program , Motsch skipped at least one drug screen and was subsequentl y terminated from the p rogram. Motsch also twice f ailed to appear in court for a drug court p rogr am status hearing and warrants were issued for her arre st. When she was arrested, she had a controlled substance in her possession.Court of Appeals of I ndiana | Memorandum Decision 02A03

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[12] A long with her contention about the nature of the offenses, Motsch claim s that her sentence is inappropriate in light of her character. We acknowledge positive character traits such as Mo tsch accepting responsibility for her wrongdoings and being remorsef ul about her actions, as indicated by her pleading guilty. However, we see no “substantial virtuous traits or persistent examples of good character.” See Stephenson v. State , 29 N.E.3d 1 11, 122 (Ind. 2015). These positive attributes cannot be evaluated in isolation without understanding the totality of Motsch’s character. Motsch argues she has a “sincere desire” to make the necessary changes to become a sober i ndividual. Sentencing Tr. p. 9. She further contends that her “ life is and has been entirely out of control . . . . ” Id. at p. 8. However , the courts have provided Motsch with am ple opportunities to seek help in dealing with her drug addiction and to take control of her life.

[13] Prior to her current offenses, Motsch had several incidents of involvement with the criminal justice system , which all seem to be drug related. In 2002, Motsch was charged with pu blic intoxication. I n 2003 , Motsch was charged with resisting law enforceme nt. Less than a year later after being charged with resisting law enforcement, Mot sch was charged with burglary, forgery, and identity deception along with a misdemeanor conviction for paraphernalia possession

. In addition to the multiple charges Motsch has faced in the past, Motsch has participated in five different substance abuse programs

. Motsch was unsatisfactorily discharged multiple times from various home detention and community corrections programs. Although Motsch does not have aCourt of Appeals of I ndiana | Memorandum Decision 02A03

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juvenile reco rd, she has clearly established a longstandi ng history as a n adult criminal

.
[14] Motsch has faile d to recognize defendants are “ not entitled to serve a sentence in either probation or a community corrections program. Rather, placement in either is a ‘matter of grace’ and a ‘ conditional liberty that is a favor, not a right.”’ Cox v. State , 706 N.E.2d 547, 549 (Ind. 1999) (quoting Gilfillen v. State , 582 N.E.2d 821, 824 (Ind. 1991)). Motsch is a repeat violator of probation, parole, home detention , and drug c ourt programs. Despite the repeated efforts to rehabilitate Motsch through various drug programs and lenient sente nces, Motsch continuously abused drugs and disobeyed the law

.
[15] It is clearly evident t hat the prior imposition of more lenient sentences and implementing drug programs for Motsch has not been an effective means of dealing with her drug addiction and repeated criminal history

. Based on the discussed factors above, Motsch’s various offenses warrant her sentence

.
[16] This case is dist inguishable fr om the recent case of Norris v. State , 27 N.E. 3d 333 , (Ind. Ct. App. 2015), upon which Motsch relies. In Norris , our court held that a twenty
- year sentence was inappropriate in light of nature of offense and defendant’ s character

. In Norris , the defendan t had a minimal criminal history and had previously completed home deten tion and probation successfully. By contrast, as the state notes, “Motsch has continually violated the terms and conditions of probation, parole, home detention, and, most recently, t he Drug Court Program.” Appellee’s Br. p. 6 . The defendant in Norris committed oneCourt of Appeals of I ndiana | Memorandum Decision 02A03

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offense, whereas Motsch’s actions while out on bond alone w ere significantly
more numerous . Given the nature of Motsch’ s aggregate offenses and her poor character , we cannot say that the trial court ’s sentence was inappropriate

. 

### Conclusion
[17] Motsch has not established that her sentence is inappropriate in light of the nature of the offenses or her character. We affirm.

[18] Affirmed. Riley, J., and Bailey, J., concur.