Court of Appeals of Indiana | Memorandum Decision 19A-CR-1157 | October 28, 2019 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

Scott H. Duerring

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Benjamin J. Shoptaw

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Erica S. Mays,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

October 28, 2019

Court of Appeals Case No.

19A-CR-1157

Appeal from the St. Joseph 

Superior Court

The Honorable Jeffrey L. Sanford, 

Judge

Trial Court Cause No.

71D03-1704-F6-370

71D03-1708-F6-750

71D03-1710-F6-988

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1157 | October 28, 2019 Page 2 of 8

Statement of the Case

[1] Erica S. Mays appeals her aggregate sentence of seven and one-half years

following her convictions, across three cause numbers, for two counts of Level 

6 felony theft; possession of cocaine, as a Level 6 felony; criminal trespass, as a 

Class A misdemeanor; false informing, as a Class B misdemeanor; and two 

counts of Class C misdemeanor possession of paraphernalia. Mays raises a 

single issue for our review, namely, whether her sentence is inappropriate in 

light of the nature of the offenses and her character. We affirm.

Facts and Procedural History1

[2] On April 23, 2017, the manager of the Sam’s Club in Mishawaka, Lindsey 

Harris, observed Mays leave the store with two 1.5-liter bottles of liquor 

without having paid for them. Harris reported the theft to local police officers 

and gave them surveillance video of the theft. Officers later located Mays with

the two liquor bottles at a nearby gas station, and they arrested her. Mays gave 

the officers several false names while they were attempting to talk to her. 

Thereafter, in cause number 71D03-1704-F6-370 (“Cause No. F6-370”), the 

State charged Mays in relevant part with theft, as a Level 6 felony, and false 

informing, as a Class B misdemeanor.

1

 We remind Mays’ counsel that Indiana Appellate Rule 50(B)(1)(a) requires the inclusion of each appealed 

cause number’s full chronological case summary in the Appellant’s Appendix.
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[3] While the State’s charges against Mays in Cause No. F6-370 were pending, on 

August 17, South Bend Police Department officers received a report that Mays, 

who was wanted on outstanding warrants, was near a local Target department 

store. Officers located Mays at a gas station near that store, and, while placing 

her under arrest, they discovered a glass pipe and a baggie of cocaine on her 

person. Under cause umber 71D01-1708-F6-750 (“Cause No. F6-750”), the 

State charged Mays with possession of cocaine, as a Level 6 felony, and 

possession of paraphernalia, as a Class C misdemeanor.

[4] In October, Catherine Wilder, a loss prevention officer at a Meijer store in 

South Bend, observed Mays enter the store despite no longer being allowed 

there. Wilder called the police to report that Mays was trespassing. While 

Wilder was escorting the responding police officer to Mays’ location in the 

store, Wilder observed Mays “quickly dart[]” among some merchandise, 

“duck[] down,” and “remov[e] items from her purse.” Tr. Vol. 3 at 78. Wilder 

recognized the removed items as unpurchased Meijer’s merchandise. And, in 

arresting Mays, the arresting officer discovered a glass pipe in her purse. Under 

cause number 71D02-1710-F6-988 (“Cause No. F6-988”), the State charged 

Mays in relevant part with theft, as a Level 6 felony; criminal trespass, as a 

Class A misdemeanor; and possession of paraphernalia, as a Class C 

misdemeanor.

[5] Following guilty verdicts in each cause number, the trial court entered 

judgments of conviction against Mays for the above-stated offenses. In May of 

2019, the court held a consolidated sentencing hearing. After hearing the 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1157 | October 28, 2019 Page 4 of 8

parties’ arguments and evidence at that hearing, the court recited Mays’

criminal history as follows:

[L]ooking at your [criminal] history, ma’am, we go back to 1990. 

You had a Prostitution [conviction]. You had a Burglary in ’91 

where a [petition to revoke probation, or “PTR”] was filed. In 

’96 you had a Prostitution [conviction]. In ’97 you had 

Possession of Paraphernalia twice. Then you had Possession of 

Cocaine, and there was a PTR filed in that which was dismissed. 

Criminal Trespass. In ’98, you had a Prostitution, Resisting. In 

’99 you had a False Informing, Resisting, Prostitution, and a 

Habitual Offender. A PTR was filed twice. In 2000 you had a 

Possession that was a misdemeanor. In 2001 you had a 

Resisting. In 2003 you had . . . some sort of traffic offense . . . . 

Prostitution as a D felony where a PTR was filed. Criminal 

Conversion, 2004. Possession of Cocaine, 2006. 2007 you had a 

Criminal Conversion where a PTR was filed but withdrawn 

pursuant to a plea. Driving Never Having a License, Possession 

of Cocaine. That was in 2007. In 2009 you had Criminal 

Conversion, Theft. There was a parole violation. 2011 you had 

a Theft as a Class A misdemeanor. It appears you may have a 

Theft from 2013 that’s pending. A Conversion, another 

Conversion, a Battery, Possession of Paraphernalia all in 2013. 

2014, you had [T]heft, and you had a parole violation. In 2015 

you had Possession of Paraphernalia, Driving While Suspended. 

And in 2017 you had . . . all these cases . . . . And then you had 

[an] Elkhart case which I guess you’ve already done. So you 

have a long, long record, ma’am.

Tr. Vol. 3 at 145-46. 

[6] “[B]ased on that” criminal history, the trial court ordered Mays to serve an 

aggregate term of seven and one-half years across the three cause numbers. Id.
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at 146. However, in its written sentencing order, the court further stated as 

follows:

[Mays] has a history of substance abuse and chemical addiction 

and dependency, and [she] appears to be an appropriate 

candidate for the [Department of Correction’s] Recovery While 

Incarcerated. Court recommends that [Mays] be evaluated for 

and considered for Recovery While Incarcerated. Upon 

successful completion of the clinically appropriate substance 

abuse treatment program as determined by [the Department of 

Correction], the Court will consider a modification to this 

sentence. Court will not consider a modification of th[is] 

sentence[] until [Mays] has completed two years incarceration.

Appellant’s App. Vol. 2 at 198. This appeal ensued.

Discussion and Decision

[7] Mays asserts that her aggregate sentence of seven and one-half years is 

inappropriate under Indiana Appellate Rule 7(B). Indiana Appellate Rule 7(B) 

provides that “[t]he 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.” This Court has often recognized that “[t]he advisory sentence is the 

starting point the legislature has selected as an appropriate sentence for the 

crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). 

And the Indiana Supreme Court has explained that “[t]he principal role of 

appellate review should be to attempt to leaven the outliers . . . but not achieve 

a perceived ‘correct’ result in each case. Defendant has the burden to persuade 
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us that the sentence imposed by the trial court is inappropriate.” Shoun v. State, 

67 N.E.3d 635, 642 (Ind. 2017) (citations omitted; omission in original).

[8] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate 

sentence to the circumstances presented, and the trial court’s judgment “should 

receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 

2008). Whether we regard a sentence as inappropriate at the end of the day 

turns on “our sense of the culpability of the defendant, the severity of the crime, 

the damage done to others, and myriad other facts that come to light in a given 

case.” Id. at 1224. The question is not whether another sentence is more 

appropriate, but rather whether the sentence imposed is inappropriate. King v. 

State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Deference to the trial court 

“prevail[s] unless overcome by compelling evidence portraying in a positive 

light the nature of the offense (such as accompanied by restraint, regard, and 

lack of brutality) and the defendant’s character (such as substantial virtuous 

traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d 

111, 122 (Ind. 2015).

[9] Mays asserts that her sentence is inappropriate in light of the nature of the 

offenses because the crimes underlying each of the three cause numbers 

“occurred over a . . . seven-month time frame,” which, according to Mays, was 

for “all intents and purposes . . . a crime spree with a series of crimes being 

committed prior to the criminal justice system’s ability to address the behavior 

of [the] individual.” Appellant’s Br. at 10. She further asserts that “the actual 
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harm done . . . was minimal” because “no one was injured” and “all of the

property involved in the thefts was returned . . . .” Id. 

[10] But we cannot say that Mays’ sentence is inappropriate in light of the nature of 

the offenses. In Cause No. F6-270, Mays lied to investigating police officers 

about her identity. In Cause No. F6-750, she was apprehended on outstanding 

warrants and found to be in possession of cocaine and a glass pipe. In Cause 

No. F6-988, she attempted to steal merchandise from a store that had 

previously prohibited her from being there, and when she was apprehended 

there she again was in possession of a glass pipe. And while we disagree with 

Mays’ characterization of the numerous offenses underlying the three cause 

numbers as a single “crime spree,” it is relevant, and not favorable to Mays,

that she committed the crimes underlying Cause No. F6-750 while the charges 

against her in Cause No. F6-270 were pending, and that she committed the 

crimes underlying Cause No. F6-988 while each of the other two cause 

numbers were pending. We cannot say that Mays’ sentence is inappropriate in 

light of the nature of the offenses.

[11] Mays also asserts that her aggregate sentence is inappropriate in light of her 

character because “she suffered from an ongoing substance abuse illness.” Id. 

Although not referenced by Mays in her argument on appeal, we note that, in a 

recent per curiam opinion, the Indiana Supreme Court considered a term of 

incarceration for a defendant who had had “multiple drug-related contacts with 

the criminal justice system over many years” but had “yet to receive courtordered substance abuse treatment.” Hoak v. State, 113 N.E.3d. 1209, 1209 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1157 | October 28, 2019 Page 8 of 8

(Ind. 2019) (per curiam) (quotation marks omitted). Our Supreme Court 

remanded for the trial court “to determine whether [the defendant] is eligible for 

substance abuse treatment in a Community Corrections placement; and[,] if she 

is eligible, to order half of her sentence to be executed in Community 

Corrections.” Id. at 1209-10. 

[12] But Hoak is not applicable here, where the trial court expressly ordered Mays to 

be evaluated for a clinically appropriate substance abuse treatment program for 

her to complete, or attempt to complete, during her incarceration with the 

Department of Correction. The court even stated that Mays would have the 

opportunity to seek a sentence modification after just two years of incarceration 

if she successfully completes such a program. Thus, the trial court has taken 

Mays’ substance abuse issues into account, and we cannot say that Mays’ 

sentence is inappropriate given the trial court’s consideration of her substance 

abuse. Neither is it inappropriate in light of her character more generally:

Mays’ “long, long [criminal] record,” including her repeated failures to abide by 

the terms and conditions of numerous prior placements on probation and 

parole, speaks poorly of her character. Tr. Vol. 3 at 146. 

[13] Accordingly, we cannot say that Mays’ sentence is inappropriate in light of the 

nature of the offenses and her character, and we affirm her sentence.

[14] Affirmed.

Bailey, J., and May, J., concur.