Court of Appeals of Indiana | Memorandum Decision 02A05

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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 Anthony S. Churchward Deputy Public Defender Anthony S. Churchward, PC Fort Wayne, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIA NA

April M. Camos , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff July 6, 2017 Court of Appeals Ca se No. 02A05

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- 2492 Appeal from the Allen Superior Court The Honorable Frances C. Gull, Judge Trial Co urt Cause No. 02D06

- 1503

- F2

- 6

May, Judge.Court of Appeals of Indiana | Memorandum Decision 02A05

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- 2492 | July 6, 2017 Page 2 of 8 [1] April M. Camos appeals her seventeen

- year aggregate sentence for one count of Level 2 felony dealing in c ocain e or narcotic d rug, 1 four counts of Level 4 felony dealing in c ocaine or narcotic d rug, 2 and one count of Level 6 felony maintaining a common n uisance. 3 Camos argues her sentence is inappropriate based on her character and the nature of her offenses. We affirm.


# Facts and Procedural History

[2] On October 1, 2014, a confidential informant (“CI”) working with Detective Gutierrez of the Fort Wayne Police Department went to the home of Camos’ boyfriend, Thomas Perez, to buy cocaine . Camos measured out 1.4 grams, which Perez handed to the CI

. Again, on October 9, 2014, the CI returned to Perez’s home where Camos measured out 1.4 grams of cocain e, which Perez sold to the CI. Later that day, Detective Gutierrez presented the CI with a six

person photo array from which the CI positively identi fied Perez as the man who sold the CI cocaine. Detective Gutierrez conducted a background chec k on Perez and discovered Camos listed as a possible associate.

[3] On October 31, 2014, Detective Gutierrez presented the CI with a six

- person photo array that incl uded a photograph of Camos . T he CI positively identified Camos as the person who assisted Perez during the two cocaine sale s
. On

1 Ind. Code § 35

- 48

- 4

- 1(e) (2014 ).

2 Ind. Code § 35

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- 4

- 1(c) (2014 ).

3 Ind. Code § 35

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- 13 (2014 ).Court of Appeals of Indiana | Memorandum Decision 02A05

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- 2492 | July 6, 2017 Page 3 of 8 November 7, 2014, the CI arranged to meet Camos to buy directly from her . At the agreed location, Camos entered the CI’s car and sold the CI 1.2 grams of

coc aine

. On December 3, 2014, Camos pulled from her bra a bag containing 2.2 grams of cocaine, which , as before , sh e handed to Perez to sell to the CI. On January 29 and February 12, 2015, the CI performed two more controlled cocaine buys at which Camos was present

.

[4] Finally, on March 6, 2015 , the Fort Wayne Police Department executed a search warrant on Camos’ apartment. P olice found approximately 5.5 grams of cocain e, a digital scale with cocaine residue, various other drug paraphernalia, Camos’ Indiana identification card, and mail addressed to Camos. Camos’ apartment is approximately 264 feet from Horizon Christian Academy, a school for grades Pre

- Kindergarten through twelve. School was in session during the February 12 cocaine deal and the March 6 search warrant execution. Officers arrested Camos and read her Miranda rights to her . She subsequently admitted dealing cocaine in the months prior to her arrest and being a minimal cocaine user.

[5] Camos was charged with one count of Level 2 felony dealing in cocaine, four

counts of Level 4 felony dealing in cocaine, and one count of Level 6 felony maintaining a common nuisance. On March 30, 2015, she pled guilty to all charges in exchange for acceptance into the drug court diversion program, for which successful completion would result in dismissal of all charges.Court of Appeals of Indiana | Memorandum Decision 02A05

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- 2492 | July 6, 2017 Page 4 of 8 [6] During Camos’ time in the diversion program, she committed several program violations that “were not conducive to her recover y .” ( Sent. Tr. at 8.) These violations include d : testing positive for alcohol on one occa sion , testing positive for cocaine on one occasion , giving a diluted urine sample, missing three drug
screens, and being dismiss ed from two t ransitional livi ng facilities. Program

v iolations resulted in Camos being sanctioned with community service, an essay, and on multiple occasions, jail time. Eventually, Camos was dismissed from participation in the diversion program for failing to follow the program ’ s rules.

[7] At her sentencing hearing on Sept ember 27 , 2016, Camos presented several mitigating factors: her lack of criminal history, her early introduction to drug use, her compliance with some of the diversion program rules , her sobriety for nearly eleven months, her three dependent children, her full

- time employment during most of the program, and her acceptance of responsibility for her actions . In addition, Camos expressed her remorse for not complying with the program’s rules , and she thank ed the court for her opportunity, stating “I’m disappointed in myself for not completing your program, because . . . that was something I really wanted was to finish this [sic] and I didn’t.” ( Id . at 10.) Aggravating factors included the nature an d circumstances of her offenses and her failure to rehabilitate

. She was sentenced to seventeen years for the Level 2 felony, six years for each of the Level 4 felonies , one year for the Level 6 felony. All sentences were ordered served con currently for an aggregate sentence ofCourt of Appeals of Indiana | Memorandum Decision 02A05

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- 2492 | July 6, 2017 Page 5 of 8 seventeen years, with ten years executed, seven years suspended, and two years on probation.


# Discussion and Decision

[8] Camos argues her sentence is inappropriate under Indiana Appellate Rule 7(B). 4 Under Appellate Rule 7(B), we may revise a sentence if, after due consideration of the trial court’s decision, we find the sentence inappropriate in

4 In the midst of her argument based on Appellate Rule 7(B), Camos suggests the trial court found improper aggravators. However, the finding of aggravators is an issue we review for an abu se of discretion and is an argument distinct from the appropriateness of a sentence under Appellate Rule 7(B). King v. State , 894 N.E.2d 265, 267 (Ind. Ct. App. 2008) (“As our Supreme Court has made clear, inappropriate sentence and abuse of discretion cl aims are to be analyzed separately.”). Under Ind. Appellate Rule 46(A)(8), Camos’ mention of improper aggravators is inadequate to constitute the cogent argument required to avoid waiver of an issue on appeal. See Price v. Review Bd. of Ind. Dept. of Workforce Dev. , 2 N.E.3d 13, 16

- 17 (Ind. Ct. App. 2013) (A ppellant ’s lack of cogent argument waived claim for appellate review ). Accordingly, Camos has wai ved any such argument. See i d . at 16 . Waiver notwithstanding, any such argument would ha ve been unsuccessful. Camos argues the trial court erred in finding aggravating circumstances surrounding Camos’ offenses

. “The trial court must enter a statement including reasonably detailed reasons or circumstances for imposing a particular sentence.” Anglemyer v. State , 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (2007)

. We review those findings for an abuse of discretion. Id. Here t he trial court found as aggravators the nature and circumstances of the crimes and Camos’ failed efforts at rehabilitation through the d rug court p rogram , and those aggravators are support ed by the record. As for circumstances of the crimes, Camos sold and helped sell cocaine multiple times to a CI , and she admitted she had been dealing cocain e in the few months prior to her arrest and was a minimal cocaine user. Regarding her failed efforts at rehabilitation, Camos was given multiple opportunities during the diversion program to correct her behavior and “get [her] life together.” (Sent. Tr. at 11 .) As the aggravators were “reasonable, probable, and actual deductions to be drawn” from the record , we see no abuse of discretion in the finding of those aggravating circumstances. See S

mith v. State , 929 N.E.2d 255, 258 (Ind. Ct. App. 2010) (tria l court did not abuse its di scretion when aggravators supported by the record ) , trans. denied

. Camos also argues the trial court did not give proper mitigating value to her lack of criminal his tory, her plea of guilty, or her expressed remorse. “The relat ive weight or value assignable to reasons properly found or those which should have been found is not subject to review for abuse.” Anglemyer , 868 N.E.2d at 491. Accordingly , we cannot review for abuse of discretion the weight the trial court gave to these mitigating factors put forward by Camos.Court of Appeals of Indiana | Memorandum Decision 02A05

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- 2492 | July 6, 2017 Page 6 of 8 light of the nature of the offense and the character of the offender. Anglemyer v.
State , 868 N.E.2d 482 , 491 (Ind. 2007) , clarified on reh’g 875 N.E

. 2d 218 (2007). We consider not only the aggravators and mitigators found by the trial court, but also any other factors appearing in the record. Johnson v. State , 986 N.E.2d 852, 856 (Ind. Ct. App. 2013)

. We defer to the trial court’s decision, and our goal is to determine whether the defendant’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 . Camos, as t he defendant, bears the burden of demonstrating her sentence is inappropriate. See Childress v. State , 848 N.E.2d 1073, 1080 (Ind. 2006).

[9] When considering the nature of the offense, the advisory sentence is the starting point for determining the appropria teness of a sentence. Anglemyer , 868 N.E.2d at 494

. The advisory sentence for a Level 2 felony is 171⁄2 years , with the range being 10 to 30 ye ars
. Ind. Code § 35

- 50

- 2

- 4.5 (2014). For a Level 4 felony, the advisory sentence is 6 years, and the range is 2 to 12 years. Ind. Code § 35

- 50

- 2

- 5.5 (2014). The advisory sentence for a Level 6 felony is 11⁄2 years , with a range of 6 months to 3 years. Ind. Code § 35

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- 2

- 7 (2014). For her Level 2 felony, Camos was sentenced to seventeen years, which is less than the advisory for a Level 2 felony. She received the six

- year advisory sentence for each Level 4 felony, and she received one year for her Level 6 felony, which is below the advisory for Level 6 felony. Because the court imposed concurrent sent ences , Camos received a n aggregate sentence that is shorter than the advisory sentence for her most

- serious offense. In light of the fact that her offenses involve dCourt of Appeals of Indiana | Memorandum Decision 02A05

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- 2492 | July 6, 2017 Page 7 of 8 multiple cocaine sales to a CI, including one within approximately 264 feet of a school ar ound noon on a school day , we see nothing inappropriate about her

seventeen

- year sentence

.

[10] Regarding Camos’ character, the trial court noted her lack of prior criminal hist ory, her guilty plea , and her expressed remorse for not completing the diversion program . When considering the character of the offender, o ne relevant fact is the defendant’s criminal history. Johnson , 986 N.E.2d at 857. The significance of criminal history varies based on the gravity, nature, and number of prior offenses in relatio n to the offense. Id. Camos’ convictions for dealing cocaine are her first convictions , but she admitted using illegal drugs since she was a teenager. While the trial court acknowledged her lack of prior criminal history, t he trial court also noted her fa ilure to correct her behavior despite being given multiple opportunities in the diversion program

.

[11] Camos possessed and sold drugs near a school , during a time when children were likely to be attending

. She chose to continually break the diversion
progra ms rules and fail ed to be rehabilitate d . While this proceeding produced her first convict ion , it also resulted in six convictions, including a Level 2 felony , and Camos has admi ttedly been engaged in illegal activities for several
years. Her seventeen

- year sentence is not inappropriate in light of her character and the nature of the offenses

.


# ConclusionCourt of Appeals of Indiana | Memorandum Decision 02A05

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- 2492 | July 6, 2017 Page 8 of 8 [12] As Camos has failed to demonstrate her sentence is inappropriate based on the nature of her offenses and her character , we affirm

.

[13] Affirmed.

Brown, J., and Pyle, J., concur.