Brittany Nicole Mullins v. State of Indiana

FILED Feb 27 2020, 8:17 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brian A. Karle Curtis T. Hill, Jr. Ball Eggleston, P.C. Attorney General Lafayette, Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brittany Nicole Mullins, February 27, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1993 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven Meyer, Appellee-Plaintiff. Judge Trial Court Cause Nos. 79D02-1808-F4-34 79D02-1904-F2-18

Pyle, Judge.

Statement of the Case [1] Brittany Mullins (“Mullins”) appeals the twenty-four-and-one-half-year (24.5)

aggregate sentence imposed after she pleaded guilty to Level 2 felony

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conspiracy to commit dealing in methamphetamine1 and two counts of Level 2

felony dealing in methamphetamine2 in Cause Number 79D02-1904-F2-18

(“Cause Number 18”) and Level 4 felony dealing in methamphetamine3 in

Cause Number 79D02-1808-F4-34 (“Cause Number 34”). She argues that the

trial court abused its discretion when it: (1) ordered the sentences in the two

causes to run consecutively to each other; and (2) identified the seriousness of

the offense as an aggravating factor. Concluding that the trial court did not

abuse its discretion, we affirm Mullins’ sentence. [2] We affirm.

Issues 1. Whether the trial court abused its discretion when it ordered the sentences in the two causes to run consecutively to each other.

2. Whether the trial court abused its discretion when it identified the seriousness of the offense as an aggravating factor.

Facts [3] Twenty-two-year-old Mullins sold sixty-one (61) grams of methamphetamine to

undercover agents in four controlled buys in August 2018. The State

1 IND. CODE §§ 35-48-4-1.1 and 35-41-5-2. 2 I.C. § 35-48-4-1.1 3 Id.

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subsequently charged her under Cause Number 18 with Level 2 felony

conspiracy to commit dealing in methamphetamine; three counts of Level 2

felony dealing in methamphetamine; Level 3 felony dealing in

methamphetamine; three counts of Level 4 felony possession of

methamphetamine; and Level 5 felony possession of methamphetamine. [4] One week after the last controlled buy, a Lafayette Police Department Officer

stopped a van after its driver failed to signal a turn. Mullins was a passenger in

the van. A search of the van revealed more than three grams of

methamphetamine, scales, baggies, a marijuana pipe, syringes, and a drug

transaction ledger. Mullins admitted that the items found in the vehicle

belonged to her and that she was dealing the methamphetamine. The State

charged Mullins in Cause Number 34 with Level 4 felony dealing in

methamphetamine; Level 6 felony possession of methamphetamine; Level 6

felony unlawful possession of a syringe; and Class C felony possession of

paraphernalia. [5] In August 2019, Mullins pleaded guilty to Level 2 felony conspiracy to commit

dealing in methamphetamine and two counts of Level 2 felony dealing in

methamphetamine in Cause Number 18 and to Level 4 felony dealing in

methamphetamine in Cause Number 34. The State dismissed the remaining

counts. The plea agreement left sentencing to the trial court’s discretion. [6] At the conclusion of the combined sentencing hearing, the trial court found the

following aggravating factors: (1) Mullins’ criminal history, which included a

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misdemeanor conviction for possession of methamphetamine, a felony

conviction for possession of methamphetamine, two petitions to revoke

probation, one of which was found to be true; and a pending charge for felony

auto theft; (2) “the offenses occurred just within months of being released from

jail on another offense;” (3) “the seriousness of the offense, the 61 grams of

drugs that were dealt within a three-week period of time is very serious to this

Court;” (4) prior attempts at rehabilitation had failed; and (5) the repetitive

nature of her crimes as demonstrated by her prior possession and dealing

convictions. (Tr. Vol. 2 at 54). The trial court specifically observed that

Mullins “just was not learning her lesson[.]” (Tr. Vol. 2 at 55). Mullins’ PSI

also revealed an extensive drug use history that included daily use of

methamphetamine and heroin for the previous four years. Mullins also

admitted to engaging in prostitution and selling drugs to support her $400.00-

per-day habit. [7] At the end of the sentencing hearing, the trial court sentenced Mullins to

eighteen (18) years for each of the three Level 2 felony convictions in Cause

Number 18. The trial court further ordered the sentences for each felony to run

concurrently to each other because they “were controlled buys.” (Tr. Vol. 2 at

56). In Cause Number 34, the trial court sentenced Mullins to six and one half

years for the Level 4 felony conviction. The trial court also ordered the

sentence in Cause Number 34 and the sentence in Cause Number 18 to run

consecutively to each other because Cause Number 34 “was a separate traffic

stop in which they found a lot of meth on her at that time. It involved different

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officers. It was a random stop when she was on the streets, a passenger in a car,

and it was not related to a controlled buy.” (Tr. Vol. 2 at 56). [8] Mullins now appeals her sentence.

Decision [9] Mullins argues that the trial court abused its discretion when it: (1) ordered the

sentences in the two causes to run consecutively to each other; and (2)

identified the seriousness of the offense as an aggravating factor. Before

addressing these issues, we set forth the standard of review for sentencing cases. [10] Sentencing decisions rest within the sound discretion of the trial court.

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). So long as the sentence is

within the statutory range, it is subject to review only for an abuse of discretion.

Id. An abuse of discretion occurs if the 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. at 491. A trial

court may abuse its discretion in a number of ways, including: (1) failing to

enter a sentencing statement at all; (2) entering a sentencing statement that

includes aggravating and mitigating factors that are unsupported by the record;

(3) entering a sentencing statement that omits reasons that are clearly supported

by the record; or (4) entering a sentencing statement that includes reasons that

are improper as a matter of law. Id. at 490-91.

1. Consecutive Sentences

Court of Appeals of Indiana | Opinion 19A-CR-1993 | February 27, 2020 Page 5 of 11 [11] Mullins first argues that the trial court abused its discretion when it ordered the

sentences in the two causes to run consecutively to each other. In support of

her argument, Mullins directs us to Beno v. State, 581 N.E.2d 922 (Ind. 1991).

Therein, the Indiana Supreme Court held that it was manifestly unreasonable to

impose consecutive sentences for multiple drug dealing convictions where the

convictions were based upon nearly identical State-sponsored sales to a police

informant as part of an ongoing sting operation. Id. at 924. [12] Here, the trial court acknowledged and followed Beno when it ordered the

controlled buy convictions in Cause Number 18 to run concurrently to each

other. Thereafter, the trial court acknowledged and distinguished Beno when it

ordered the sentence in Cause Number 18 to run consecutively to the sentence

in Cause Number 34. Specifically, the trial court pointed out that the

conviction in Cause Number 34 resulted from a separate traffic stop that

involved different officers and that it was in no way related to a controlled buy.

It was a random stop when Mullins was simply a passenger in the van. [13] We agree with the State that “the trial court followed the Beno holding and

subsequent cases when it imposed concurrent sentences in [Cause Number 18],

but it was not prevented by that precedent from ordering those convictions to

run consecutively to the sentence in [Cause Number 34] for an unrelated

offense.” (State’s Br. 13). We find no abuse of the trial court’s discretion.

2. Aggravating Factor

Court of Appeals of Indiana | Opinion 19A-CR-1993 | February 27, 2020 Page 6 of 11 [14] Mullins also argues that the trial court abused its discretion when it identified

the seriousness of the offense as an aggravating factor. Specifically, the trial

court explained that it took very seriously that “61 grams of drugs . . . were

dealt within a three-week period of time[.]” (Tr. Vol. 2 at 54). [15] The trial court’s consideration of the total amount of drugs that Mullins sold

during such a short time period is no different than the trial court considering

the particularized circumstances of the factual elements as aggravating factors

when evaluating the nature of the offense. See McElroy v. State, 865 N.E.2d 584,

589-90 (Ind. 2007) (explaining that when evaluating the nature of the offense,

the trial court may properly consider the particularized circumstances of the

factual elements as aggravating factors). We find no abuse of the trial court’s

discretion. [16] We further note that even if the trial court had erred in identifying this

aggravating factor, we would not remand Mullins’ case to the trial court for

resentencing. When a trial court abuses its discretion by considering an

improper aggravating circumstance, we remand for resentencing only “if we

cannot say with confidence that the trial court would have imposed the same

sentence had it properly considered reasons that enjoy support in the record.”

Anglemyer, 868 N.E.2d at 491. [17] Here, the trial court found the following additional aggravating factors: (1)

Mullins’ extensive criminal history, which included a misdemeanor and a

felony conviction as well as a pending felony charge; (2) the offenses occurred

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within months of being released from jail on another offense; (3) prior attempts

at rehabilitation had failed; and (4) the repetitive nature of her crimes as

demonstrated by prior possession and dealing convictions. Mullins does not

challenge the validity of these additional aggravating circumstances. In light of

these additional unchallenged aggravating circumstances, we are confident that

the trial court would have imposed the same sentence irrespective of its

consideration of the seriousness of the offense. [18] Affirmed.

May, J., concurs.

Crone, J., dissents with opinion.

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IN THE COURT OF APPEALS OF INDIANA

Brittany Nicole Mullins, Court of Appeals Case No. 19A-CR-1993 Appellant-Defendant,

v.

State of Indiana, Appellee-Plaintiff

Crone, Judge, dissenting. [19] I agree with my colleagues that the imposition of consecutive sentences in this

case does not constitute an abuse of discretion. I respectfully dissent, however,

because the sentence in this case is an outlier that warrants our independent

review and revision pursuant to Indiana Appellate Rule 7(B). As our supreme

court stated in Wampler v. State, 67 N.E.3d 633 (Ind. 2017), “[e]ven where a

trial court has not abused its discretion in sentencing, the Indiana Constitution

authorizes independent appellate review and revision of a trial court’s

sentencing decision.” Id. at 634 (citing Ind. Const. art 7, §§ 4, 6; Anglemyer v.

State, 868 N.E.2d 482, 491 (Ind. 2007). This constitutional authority is

implemented through Appellate Rule 7(B), which states, “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.” Thus, even when the trial

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court has not abused its discretion, an Appellate Rule 7(B) analysis can result in

a downward revision of the sentence. Wampler, 67 N.E.3d at 634. [20] Here, the trial court imposed an aggregate sentence of twenty-four and a half

years. In determining whether the nature of Mullins’s offenses and her

character render her sentence inappropriate, “we may look to any factors

appearing in the record.” Boling v. State, 982 N.E.2d 1055, 1060 (Ind. Ct. App.

2013). [21] Turning first to the nature of the offenses, Mullins sold methamphetamine to an

undercover detective in controlled buys on August 6, 13, 16, and 20, 2018. The

police could have arrested her after any one of these buys. During the buys, the

undercover detective met Mullins’s co-conspirator. A week after the last

controlled buy, in an apparently pretexual stop, the police pulled over a vehicle,

in which both Mullins and her co-conspirator were passengers, for failing to

signal a turn into a gas station. The cumulative amount of the

methamphetamine involved in these five incidents was sixty-one grams, worth

approximately $5000. [22] As to Mullins’s character, the record reveals that she has a history of childhood

sexual molestation and physical abuse, early exposure to drugs and alcohol,

untreated mental health issues, and longstanding substance abuse as a means of

self-medication. Defendant’s Ex. D. Mullins was first introduced to opiates at

the age of fourteen, when she was involuntarily injected with heroin by her

aunt. Id. After that, she began using a variety of drugs and clearly has a

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significant addiction to illegal substances. Appellant’s App. Vol. 2 at 125. She

has been diagnosed with bipolar disorder, schizoaffective disorder, and

paranoid schizophrenia. Id. at 119; Defendant’s Ex. D. She resorted to

prostitution and has been homeless since April 2018. Appellant’s App. Vol. 2

at 124. She was a desperate and damaged twenty-two-year old when she

committed these offenses. She expressed hopelessness that she had no way out

of her situation and had hit rock bottom, and she said that she did not want that

life anymore. Defendant’s Ex. D. At sentencing, Mullins reiterated that she

wanted to change, to participate in substance abuse rehabilitation, to learn to

cope with herself, and to someday be a part of society. Tr. Vol. 2 at 43-44. [23] The trial court sentenced Mullins to eighteen years in cause number 79D02-

1904-F2-18 and to six and a half years in cause number 79D02-1808-F4-34 and

ordered the sentences in the two cause numbers to be served consecutively for

an aggregate term of twenty-four and a half years. Given the nonviolent nature

of Mullins’s offenses, the value of the drugs and relatively brief time involved,

her young age, and her traumatic childhood, I believe that the twenty-four and

a half-year aggregate sentence created by consecutive sentences is inappropriate.

I would exercise our authority under Appellate Rule 7(B) to revise Mullins’s

sentences to have the sentences in the two causes to run concurrently for an

aggregate term of eighteen years. Accordingly, I must dissent from my

colleagues’ decision to affirm Mullins’s sentence.

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