Court of Appeals of Indiana | 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 Gregory L. Fumarolo Fort Wayne, Indiana A TTORNEY S FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA
Holly A. Jen , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. November 1, 2016 Court of Appeals Ca se No. 02A03

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- 172 Appeal from the Allen Superior Court The Honorable Frances C. Gull, Judge Trial Court Cause No. 02D05

- 1405

- FB

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Robb , Judge .Court of Appeals of Indiana | Memorandum Decision 02A03

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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 methamphetamin e, 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 D epartment 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 offense s and her character. Concluding Jen’s sentence i s not in appropriate, 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” me thod for manufacturi ng meth amphetamine

. Appellant’s App endix 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 meth amphetamine production was found in Jen’s trash. JenCourt of Appeals of Indiana | Memorandum Decision 02A03

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admitted to purchasing the precursors

. Jen informed the officers that h er two children lived in the home, but Jen’s ex

- husband had picked them up earlier that day

.
[3] T he 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 ple a d ed guilty to all charges and entered into an agreement to participate in Drug Court , which concentrate s on the rehabilitation of addicts

. The State agreed to dismiss all charges if Jen successfully completed Drug Court

.
[4] T he 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, th e 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 orde red 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,Court of Appeals of Indiana | Memorandum Decision 02A03

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# Discussion and Decisi on 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
o ffender. ” Ind. Appellate Rule 7 (B)

. The burden rests on the defendant to persuade the c ourt 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 c ourt 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, 82 5 (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 damag e 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 iss ues 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.Court of Appeals of Indiana | Memorandum Decision 02A03

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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 natu re of the offense s . “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 r eceived a ten
- year sentence, which is the advisory sentence for her most serious offense, C lass 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 plead ed guilty to the six charges against her with the opportunity to have those charges dismissed for successful participat ion in Drug Court . Only after she failed t o 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 p rior felony conviction. See Ind. Code § 35

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- 2(b)(1) (2012).Court of Appeals of Indiana | Memorandum Decision 02A03

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additional offenses to be served concurr ently . 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] A t the time police searched Jen’s house, they discovered numerous chemical reagents, precursors, and volatile substances used in the manufacturing of meth amphetamine

. For example, s everal bottles containing a sludge that tested positive for ammonia gas wer e stored in the kitchen freezer intermingled with frozen food. As the State notes, the “one pot” method of manufacturing meth amphetamine 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 meth amphetamine

. Further, Jen’s house was located in a residential area, and her conduct also exposed h er 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 differ ent 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 not hing 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.Court of Appeals of Indiana | Memorandum Decision 02A03

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[9] Second, we consider the character of the offender

. O ne 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. I n 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 pa st conduct exhibits her repeated disregard for the law s of this state

. In addition, s he has consistently been offered leniency in sentencing but has continued to commit crimes. While Jen’s prev ious offenses are not numerous and range in gravity , the f act 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 ad diction, 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 successfulCourt of Appeals of Indiana | Memorandum Decision 02A03

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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 offense s and her character. W e 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

.