Court of Appeals of Indiana | Memorandum Decision 02A03-1601-CR-172 | November 1, 2016 Page 1 of 8

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.

ATTORNEY FOR APPELLANT

Gregory L. Fumarolo

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

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 Case No.

02A03-1601-CR-172

Appeal from the Allen Superior 

Court

The Honorable Frances C. Gull, 

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 eightyear 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.