MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                           FILED
this Memorandum Decision shall not be                                 Nov 01 2016, 9:35 am

regarded as precedent or cited before any                                  CLERK
                                                                       Indiana Supreme Court
court except for the purpose of establishing                              Court of Appeals
                                                                            and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Gregory L. Fumarolo                                     Gregory F. Zoeller
Fort Wayne, Indiana                                     Attorney General of Indiana
                                                        Richard C. Webster
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Holly A. Jen,                                           November 1, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A03-1601-CR-172
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Frances C. Gull,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        02D05-1405-FB-94



Robb, Judge.




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

      Court of Appeals of Indiana | Memorandum Decision 02A03-1601-CR-172 | November 1, 2016                Page 4 of 8
      “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 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


       Court of Appeals of Indiana | Memorandum Decision 02A03-1601-CR-172 | November 1, 2016   Page 7 of 8
       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.




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