Court of Appeals of Indiana | Memorandum Decision 18A

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- 1618 | December 21, 2018 Page 1 of 12 

### 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 Jane Ann Noblitt Columbus, Indiana A TTORNEYS FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana


### IN THE 

# COURT OF APPEALS OF INDIANA
Debin Paige Gabbard , Appellant

- Defendant,

v. 

### State of Indiana, Appellee

- Plaintiff. 

### December 21, 2018 Court of Appeals Cause No. 18A

- CR

- 1 618 Appeal from the Bartholomew Superior Court The Honorable James D. Worton , Judge Trial Court Cause No. 03D01

- 1710

- F2

- 5616 & 03D01

- 1802

- F5

- 733
Riley, Judge.Court of Appeals of Indiana | Memorandum Decision 18A

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- 1618 | December 21, 2018 Page 2 of 12 

### STATEMENT OF THE CASE
[1] Appellant

- Defendant, Debin Gabbard (Gabbard), appeals her sentence following her guilty plea to dealing in methamphetamine, a Level 3 felony, Ind. Code § § 35

- 48

- 4

- 1.1(a)(2) , ( d)(2) ; and dealing in methamphetamine, a Level 5 felony, I.C. § 35

- 48

- 4

- 1.1(a)(1).

[2] We a ff irm

. 

### ISSUES
[3] Gabba rd presents two issues on appeal, which we restate as: (1) Whether the trial court abuse d its discretion when it sentenced Gabbard; and
(2) Whether Gabbard’s sentence is inappropriate in light of the nature of her offenses and her c haracter.



### FACTS AND PROCEDURAL HISTORY
[4] In the fall of 2017, law enforcement made two controlled buys of heroin from Gabbard and her boyfriend at their home in Columbus, Indiana. The buys were made with different confidential informants, both of whom had contacted the authori ties with the information that it was possible to purchase heroin from Gabbard and her boyfriend. On October 4, 2017, based on the controlled buys, officers obtained and executed a search warrant on Gabbard’s home . Gabbard ,Court of Appeals of Indiana | Memorandum Decision 18A

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- 1618 | December 21, 2018 Page 3 of 12 who was able to see officers a pproaching her home to execute the search warrant, secreted quantities of methamphetamine and heroin in side her vagina. When Officers searched Gabbard’s home approximately twenty

- eight grams of methamphetamine, a handgun, a scale, and plastic sandwich bag s commonly used to packa ge drugs were found.

[5] Gabbard was arrested on multiple charges and was taken into custody. While being held at the Bartholomew County Jail, Gabbard removed the methamphetamine and heroin from her vagina and provided the methamphetamine to fellow inmate Mary Snyder (Snyder) in exchange for credits at the jail commissary

. Snyder, in turn, placed the methamphetamine in a bottle of hair conditioner which was later retrieved by inmate Angela Blair (Blair). Blair died in jail during the evening of October 7, 2017 , of methamphetamine intoxication

.
[6] On October 11, 2017, the State filed an Information in Cause Number 03D01

- 1710

- F2

- 5616 (Cause

- 5616) , charging Gabbard with dealing in methamphetamine, as a Level 2 felony; possessi on of methamphetamine, as a Lev el 3 felony; and two Counts of d ealing in a narcotic drug, both as Level 5 felonies for the drugs found in her home . On February 8, 2018, the State filed an Information in Caus e Number 03D01

- 1802

- F5

- 733 (Cause

- 733) , chargin g Gabbard with dealing in methamphetamine, a Level 5 felony; trafficking with an inmate in a controlled substance, a Level 5 felony; possession of a narcotic drug, a Level 6 felony; and possessi on of methamphetamine, a Level 6 felony ,Court of Appeals of Indiana | Memorandum Decision 18A

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- 1618 | December 21, 2018 Page 4 of 12 for the offenses she committed while being held in jail on the C a u se - 5616 charges

.
[7] On May 14, 2018, Gabbard pleaded guilty to dealing in methamphetamine as a Level 3 felony in C a u se - 5616. Gabbard also pleaded guilty to dealing in methamph etamine as a Level 5 felony in C a u se - 733 . P ursuant to an agreement wit h the State, all other charges were dismissed.

[8] On June 1, 2018, the State filed its pre - sentence investigation report (PSI) which revealed that Gabbard had two juvenile adjudications, one in 2003 for alcohol possessi on and one in 2007 for battery. She received probation for each of those adjudications. As an adult, Gabbard had a 2010 conviction for illegal alcohol possession for which she received probation. In 2015, Gabbard pleaded guilty to Class D felony possess ion of a controlled substance. She received a
one - year sentence which was suspended to time

- served and probation. Less than four months later, the State filed a petition to revoke Gabbard’s probation based upon her testing positive for methamphetamine an d heroin. The trial court revoked Gabbard’s probation, and she served 175 days in jail . While she was being held on the instant cases, the State filed an Information, charging Gabbard with conversion.

[9] Gabbard reported to her PSI investigator that she a nd her boyfriend used some of the money they earned dealing drugs to support themselves. Gabbard reported doing cleaning work in addition to dealing drugs. Gabbard had no other verifiable employment for the previous two years. She also reported thatCourt of Appeals of Indiana | Memorandum Decision 18A

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- 1618 | December 21, 2018 Page 5 of 12 Snyder gave the me thamphetamine to Blair and that it was “Mary’s fault” that Blair died. (Confidential App . Vol. III, p.7). Gabbard felt that “Mary k illed her because she gave it to her.” (Conf. App. Vol. III, p. 7). Gabbard had lost contact with her a doptive mother because of her drug use.

[10] Gabbard reportedly began abusing heroin and methamphetamine at the age of twenty
- three, which she attributed to hanging around with the wrong crowd. Gabbard sta rted by snorting and smoking drugs , but later she beg an injecting them . Gabbard sought treatment at the Indiana Treatment Center on one occasion. She was prescribed methadone but ceased attending treatment after approximately four weeks. Gabbard was attending Celebrate Recovery pending resolution of her c ases .
[11] On June 12, 2018, the trial court held Gabbard’s sentencing hearing. Gabbard was twenty
- eight years old at the time of her sentencing. Gabbard maintained repeatedly at her sentencing hearing that she had never sold any drugs. Rather, she claimed that she gave drugs away to her friends without accepting payment in order to support her drug habit. Gabbard testified that hiding the drugs in her vagina was not planned and that it “just happened.” (Transcript Vol. II, p. 24). Gabbard further testif ied that she brought the drugs into jail to avoid withdrawal symptoms, but sh e also maintained that she never used any of the drugs for that purpose. Gabbard stated that she felt responsible for Blair’s death even though she did not directly hand Blair th e methamphetamine and that “if I had never brung [sic] that it [sic] she would still probably be here.” (Tr. Vol. II, p. 25).Court of Appeals of Indiana | Memorandum Decision 18A

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- 1618 | December 21, 2018 Page 6 of 12 [12] Gabbard’s counsel argued that Gabbard’s lack of criminal record and her need for treatment merited a reduced sentence. He also argued that Gabbard “does feel responsible for [Blai r’s] passing, because clearly if she hadn’t brought the stuff in, [Snyder] wouldn’t have taken it.” (Tr. Vol. II, p. 38). The trial court found Gabbard’s statement that she was only dealing to support her habit to lack credibility, which the trial court believed indicated that Gabbard did not take responsibility for her actions.

[13] In its written sentencing order, t he trial court found, in relevant part, as follows: The Court finds no mitigating circumst ances. The Court finds the following aggravating circumstances in cause number 03DOl

- 1802

- F5

- 733 and O3DOl

- l7lO

- F2

- 5616: 1. The defendant has a history of criminal or delinquent behavior. 2. The defendant has been on probation in the past and has been r evoked. 3. The defendant has had opportunity for treatment outside of a penal facility and has been unsuccessful. The Court finds the following aggravating circumstance in only cause number 03DOl

- 1802

- F5

- 733: 4. A person died “in part” as a result of defendant’s actions. (Appellant’s App. Vol. II, p. 56). The trial court sentenced Gabbard to fifteen years with the Indiana Department of Correction for the Level 3 felony dealing offense and to six years for the Level 5 felony offense, to be served
con secutively, for an aggregate sentence of twenty

- one years.Court of Appeals of Indiana | Memorandum Decision 18A

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- 1618 | December 21, 2018 Page 7 of 12 [14] Gabbard now appeals. Additional facts will be provided as necessary. 

### DISCUSSION AND DECISION I. Abuse of Discretion [15] Gabbard contends that the trial court abused its discretion when it found as an aggravating circumstance that Blair died in part because of Gabbard’s actions. So long as a sentence imposed by a trial court is within the statutory range for the offense, it is subject to review only for an abuse of discretion. Anglemyer v. State , 868 N.E.2d 482, 490 (Ind. 2007) , clarified on reh’g , 875 N.E.2d 218 (Ind. 2007) . An abuse of the trial court’s sentencing discretion occurs if its decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. Id . A trial court abuses its discretion when it fails to enter a sentencing statement at all, its stated reasons f or imposing sentence are not supported by the record, its sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or its reasons for imposing sentence are improper as a matter of law. Id . at 490

- 91.

[16] Ga bbard acknowledges on appeal that her sentence is within the statutory guidelines for the offenses. However , Gabbard argues that the trial court abused its discretion because she did not plead guilty to causing Blair’s death and no evidence in the record established a direct line of culpability to her for Blair’s death. We begin by noting that the trial court found the challenged aggravating circumstance only as to the jailhouse dealing in methamphetamineCourt of Appeals of Indiana | Memorandum Decision 18A

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- 1618 | December 21, 2018 Page 8 of 12 conviction in C a u se - 733 . Therefore, we conclude that Gabbard raises no abuse of discretion claim pertaining to her sentence for her other dealing con viction in C a u se - 5616.

[17] The gravamen of Gabbard’s argument is that the challenged aggravating circumstance was no t supported by the record. However , the re was evidence before the trial court that Gabbard admitted giving the methamphetamine to Snyder and that Gabbard reported that Snyder hid it in a conditioner bottle

. Video surveillance footage from the jail substantiat ed Gabbard’s account and showed Sny der placing a conditioner bottle on the floor of her cell and Blair later picking up the same bottle and taking it with her to her bed. Blair died the next day of methamphetamine intoxication . Gabbard acknowledged at her sentencing hearing that she felt responsible for Blair’s death and that if she had not brought the methamphetamine into the jail, Blair would still be alive. Gabbard’s counsel also argued at sentencing that Gabbard felt responsible for her part in causing Blair’s death. Given this evide nce and argument, we cannot say that the trial court’s aggravating circumstance was unsupported by the record or that it was clearly against the logic and effect of the facts and circumstances before the court. Anglemyer v. State , 868 N.E.2d at 490

- 91.

[18] However, even if the trial court had abused its discretion when it found as an aggravating circumstance that Gabbard was at least in part responsible for Blair’s death , we would still affirm the trial court’s sentence. The finding of even one valid aggrav ating circumstance is sufficient to impose both an aggravated sentence and consecutive sentence s. Gleason v. State , 965 N.E.2dCourt of Appeals of Indiana | Memorandum Decision 18A

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- 1618 | December 21, 2018 Page 9 of 12 702, 712 (Ind. Ct. App. 2012) . Here, the trial court found three other aggravating circumstances applicable to Gabbard’s conviction for the jailhouse dealing offense , namely her criminal record, the fact that Gabbard had her probation revoked in the past, and that she had the opportunity for treatment outside of a penal facility but had been unsuccessful. Gabbard does not
c hallenge the validity of these additional aggravating circumstances, and, therefore, we conclude that her argument fails for the additional reason that those aggravating circumstances justified the sentence imposed by the trial court.
II. Appropriatenes s of Sentence [19] Gabbard also contends that her sentence is inappropriate given the nature of her offenses and her character. The Indiana Constitution and Indiana Appellate Rule 7(B) permit an appella te court to revise a sentence if , after due consideration of the trial court’s decision, the sentence is found to be inappropriate in light of the nature of the offense and the character of the offender. Robinson v. State , 91 N.E.3d 574, 577 (Ind. 2018). “The principal role of such review is to attempt to leave n the outliers.” Cardwell v. State , 895 N.E.2d 1219, 1225 (Ind. 2008). The defendant bears the burden to persuade the reviewing court that the sentence imposed is inappropriate. Robinson , 91 N.E.3d at 577.

[20] Gabbard pleaded guilty to Level 3 and Level 5 felony dealing in methamphetamine. The sentencing range for a Level 3 felony is from three to sixteen years, with nine years being the advisory sentence. I.C. § 35

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- 2

- 5(b).Court of Appeals of Indiana | Memorandum Decision 18A

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- 1618 | December 21, 2018 Page 10 of 12 The sentencing range for a Level 5 felony is from one to six years, with thre e years being the advisory sentence. I.C. § 35

- 50

- 2

- 6(b). Here, the trial court imposed a fifteen

- year sentence for the Level 3 felony conviction and a six

- year sentence for the Level 5 felony conviction, to be served consecutively. Thus, the trial cour t’ s sentence represents the near

- maximum permitted for the offenses.

[21] Gabbard has little to argue regarding the nature of her offense s apart from her contention that her “intentions in the actions she took were to support her own habit, not to profit fina ncially.” (Appellant’s Br. p. 15). However, this contention is belied by evidence in the record that she accepted money from the confidential informa nts during the controlled buys and that she and her boyfriend used some of the profits from their drug de aling to support themselves. In addition, Gabbard brought drugs into the jail and continued to deal drugs even as she was being held on drug dealing charges. As a result of her drug dealing in jail, Blair died of methamphetamine intoxication. In light
o f these circumstances, we conclude that Gabbard has not met her burden to persuade us that her sentence is inappropriate given the nature of her offenses. Robinson , 91 N.E.3d at 577.

[22] As to her character, we note that Gabbard had two contacts with the ju venile justice system and one previous felony conviction for a drug offense as an adult. Gabbard has received the benefit of suspended sentences, probation, a nd an executed sentence after her probation revoked on one occasion for testing positive for drug u se. Gabbard also had a conversion charge pending at theCourt of Appeals of Indiana | Memorandum Decision 18A

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- 1618 | December 21, 2018 Page 11 of 12 time of sentencing. Although Gabbard’s criminal history is not the most severe we have encountered , we do not conclude that it renders her sentence inappropriate.

[23] In addition, despite the negative impact it has had on her life, Gabbard has failed to address her drug addiction, which has escalated from snorting and smoking to intravenous use. There is no evidence in the record that Gabbard has sought assistance for her drug use apart from one failed attempt at the Indiana Treatment Center at some unspecified time in the past

. While we commend Gabbard for her apparent attempt to address h er substance abuse pending the resolution of her case , we do not find that these late

- breakin g efforts render her sentence inappropriate.

[24] Gabbard contends that her sentence is inappropriate because she demonstrated remorse for her offenses that the trial court did not credit. However, although Gabbard pleaded guilty to the two dealing offenses, she received a great benefit for her plea in that the State agreed to dismiss the six remaining felony charges pending against her. In addition, Ga bbard maintained at her sentencing hearing that she had not actually sold any drugs when she dealt, an equi vocation which the trial court justly found demonstrated that she had not truly accepted responsibility for the offenses. Gabbard also thought that smuggling drugs into jail was something that “just happened,” which we conclude demonstrated a lack of insi ght into the gravity of the offense. (Tr. Vol. II, p. 24). In light of h er criminal history, unaddressed substance abuse , the substantial benefit Gabbard received from her plea , and her equivocation atCourt of Appeals of Indiana | Memorandum Decision 18A

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- 1618 | December 21, 2018 Page 12 of 12 her sentencing hearing , we conclude that Gabbard has failed to demonstrate that her sentence is inappropriate given her character. Robinson , 91 N.E.3d at 577. 

### CONCLUSION
[25] Based on the foregoing, we conclude that the trial court did not abuse its discretion when it sentenced Gabbard and that her sentence i s not inappropriate given the nature of her offenses and her character

.
[26] Affirmed.

[27] Kirsch, J. and Robb, J. concur