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Date: 05-18-2021
Case Style:
Tina L. Fleener-Tays v. State of Indiana
Case Number: 20A-CR-02289
Judge: Rudolph R. Pyle III
Court: COURT OF APPEALS OF INDIANA
Plaintiff's Attorney: Theodore E. Rokita
Attorney General of Indiana
Steven Hosler
Deputy Attorney General
Defendant's Attorney:
Description:
Indianapolis, IN - Criminal defense attorney represented Defendant charged with unlawful possession of a legend drug.
In September 2018, forty-eight-year-old Fleener-Tays went to D.H.’s house in
Columbus in violation of a protective order. Fleener-Tays threw a boat oar
1
IND. CODE §§ 16-42-19-13 and -27.Court of Appeals of Indiana | Memorandum Decision 20A-CR-2289 | May 17, 2021 Page 3 of 9
through the glass window in D.H.’s back door and attempted to enter D.H.’s
house. Police officers arrived at the scene and subsequently found two pipes
and a bag of marijuana in Fleener-Tays’ backpack. The State charged FleenerTays with Class A misdemeanor invasion of privacy, Class B misdemeanor
possession of marijuana, and Class C misdemeanor possession of paraphernalia
in Cause 03C01-1809-CM-5216 (“CM-5216”).
[4] In November 2018, while the protective order was still in place. Fleener-Tays
returned to D.H.’s house and hit him in the face with a glass cooking dish.
When D.H. attempted to call 911, Fleener-Tays threw D.H.’s phone across the
room. The State charged Fleener-Tays with Level 6 felony domestic battery,
Class A misdemeanor invasion of privacy, and Class A misdemeanor
interference with the reporting of a crime in Cause 03C01-1811-F6-6376 (“F6-
6376”).
[5] In February 2019, pursuant to a plea agreement, Fleener-Tays pleaded guilty to
Class A misdemeanor invasion of privacy in CM-5216 and Level 6 felony
domestic battery in F6-6376. Pursuant to the terms of the plea agreement, the
State dismissed the remaining counts in both causes. The trial court sentenced
Fleener-Tays to 365 days, with 120 days on probation, in CM-5216 and 912
days, with 730 days on probation, in cause F6-6376. The trial court ordered the
sentences to run consecutive to each other and suspended them both.
[6] Two months later, in April 2019, the State filed a petition to revoke FleenerTays’ probation. The petition specifically alleged that Fleener-Tays had Court of Appeals of Indiana | Memorandum Decision 20A-CR-2289 | May 17, 2021 Page 4 of 9
violated probation when she had: (1) twice used methamphetamine in March
2019; (2) been charged with another count of invasion of privacy in April 2019;
and (3) used methamphetamine again in April 2019.
[7] In July 2019, the State amended its petition to revoke Fleener-Tays’ probation.
The amended petition specifically alleged that Fleener-Tays had also violated
her probation when she had: (1) used methamphetamine and marijuana in
June 2019; and (2) failed to both report to her probation officer for scheduling
and contact her probation officer to report an address change. Fleener then
absconded and did not contact her probation officer for over a year.
[8] In September 2020, police officers located Fleener-Tays in a Columbus house.
Fleener-Tays told the officers that she had been hiding in the house for over a
year to avoid being arrested. When the officers found Fleener-Tays, she had in
her possession several drugs, including Gabapentin. Because Gabapentin is a
legend drug, and Fleener-Tays did not have a prescription for it, the State
charged Fleener-Tays with Level 6 felony unlawful possession of a legend drug
in Cause 03C01-2009-F6-4412 (“F6-4412”) in September 2020.
[9] In November 2020, pursuant to a plea agreement, Fleener-Tays pleaded guilty
to Level 6 felony unlawful possession of a legend drug in F6-4412 and admitted
that she had violated probation in CM-5216 and F6-6376. Pursuant to the
terms of the plea agreement, sentencing for the Level 6 felony and the probation
violations was left to the trial court’s discretion.Court of Appeals of Indiana | Memorandum Decision 20A-CR-2289 | May 17, 2021 Page 5 of 9
[10] The trial court held a sentencing hearing in November 2020. Fleener-Tays’ PreSentence Investigation Report (“PSI”) revealed that she has a twenty-year
criminal history that includes two felony convictions for possession of
methamphetamine and failure to return to lawful detention. Fleener-Tays also
has seven misdemeanor convictions, including two convictions for false
informing and one conviction each for public intoxication, operating a vehicle
while intoxicated, domestic battery, resisting law enforcement, and criminal
mischief.
[11] At the hearing, Fleener-Tays admitted that she had “struggl[ed] with . . .
methamphetamine.” (Tr. Vol. 2 at 30). The testimony further revealed that
Fleener-Tays had had previous opportunities for drug treatment but had “not
taken advantage of those opportunities.” (Tr. Vol. 2 at 39).
[12] At the end of the sentencing hearing, the trial court found the following
aggravating factors: (1) Fleener-Tays’ criminal history; (2) Fleener-Tays had
absconded while on probation; (3) she had been previously offered drug
treatment but had failed to take advantage of it; (4) she had not taken advantage
of probation; and (5) she had violated the terms of her probation and was on
probation at the time she committed the offense of Level 6 felony unlawful
possession of a legend drug. The trial court further found Fleener-Tays’ guilty
plea to be a mitigating factor.
[13] The trial court sentenced Fleener-Tays to two (2) years for the unlawful
possession of a legend drug conviction in F6-4412. In addition, the trial court Court of Appeals of Indiana | Memorandum Decision 20A-CR-2289 | May 17, 2021 Page 6 of 9
ordered Fleener-Tays to serve 62 days of her previously suspended sentence in
CM-5216 but determined that, after applying Fleener-Tays’ credit time, the
sentence had been served. Lastly, the trial court ordered Fleener-Tays to serve
the balance of her previously suspended 912-day sentence in F6-6376 in the
Department of Correction.
[14] Fleener-Tays now appeals.
Decision
[15] Fleener-Tays argues that the trial court abused its discretion in ordering her to
serve the balance of her previous suspended sentence in F6-6376 after she had
violated probation and that her two (2) year sentence for Level 6 felony
unlawful possession of a legend drug is inappropriate. We address each of her
contentions in turn.
1. Probation Violation
[16] Fleener-Tays first argues that the trial court abused its discretion in ordering her
to serve the balance of her previously suspended sentence in F6-6376 after she
had violated probation. We disagree.
[17] “Probation is a matter of grace left to trial court discretion, not a right to which
a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.
2007). Once a trial court has exercised its grace, it has considerable leeway in
deciding how to proceed when the conditions of probation are violated. Id. If
this discretion were not given to trial courts and sentences were scrutinized too Court of Appeals of Indiana | Memorandum Decision 20A-CR-2289 | May 17, 2021 Page 7 of 9
severely on appeal, trial courts might be less inclined to order probation. Id.
Accordingly, a trial court’s sentencing decision for a probation violation is
reviewable for an abuse of discretion. Id. An abuse of discretion occurs when
the trial court’s decision is clearly against the logic and effect of the facts and
circumstances. Id. If a trial court finds that a person has violated his probation
before termination of the probationary period, the court may order execution of
all or part of the sentence that was suspended at the time of the initial
sentencing. IND. CODE § 35-38-2-3.
[18] Here, Fleener-Tays argues that the trial court abused its discretion in ordering
her to serve the balance of her previously suspended sentence. However, our
review of the evidence reveals that Fleener violated her probation by using
methamphetamine several times, failing to both report to her probation officer
for scheduling and contact her probation officer to report an address change,
and committing Level 6 felony unlawful possession of a legend drug. In
addition, while on probation, Fleener-Tays absconded and hid for a year to
avoid being arrested. Based on these facts, the trial court’s decision to order
Fleener-Tays to serve the balance of her previously suspended sentence in F6-
6376 is not clearly against the logic and effect of the facts and circumstances
before it, and the trial court did not abuse its discretion.
2. Inappropriate Sentence
[19] Fleener also argues that the two (2) year sentence imposed in F6-4412 for her
Level 6 felony unlawful possession of a legend drug conviction is inappropriate. Court of Appeals of Indiana | Memorandum Decision 20A-CR-2289 | May 17, 2021 Page 8 of 9
Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized
by statute if, after due consideration of the trial court’s decision, we find that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender. The defendant bears the burden of persuading this Court that
her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006). Whether we regard a sentence as inappropriate turns on 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 v. State, 895
N.E.2d 1219, 1224 (Ind. 2008).
[20] The Indiana Supreme Court has further explained that “[s]entencing is
principally a discretionary function in which the trial court’s judgment should
receive considerable deference.” Id. at 1222. “Such deference should prevail
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).
[21] When determining whether a sentence is inappropriate, the advisory sentence is
the starting point the legislature has selected as an appropriate sentence for the
crime committed. Childress, 848 N.E.2d at 1081. Here, Fleener-Tays was
convicted of Level 6 felony unlawful possession of a legend drug. The
sentencing range for a Level 6 felony is six (6) months and two and one-half
(2½) years, and the advisory sentence is one (1) year. IND. CODE § 35-50-2-Court of Appeals of Indiana | Memorandum Decision 20A-CR-2289 | May 17, 2021 Page 9 of 9
7(b). Here, the trial court sentenced Fleener-Tays to two (2) years, which is less
than the maximum sentence.
[22] Regarding the nature of the offense, Fleener-Tays possessed a legend drug,
Gabapentin, without a prescription. Regarding Fleener-Tays’ character, we
note that Fleener-Tays’ PSI reveals an extensive twenty-year criminal history
that includes two felony convictions and seven misdemeanor convictions. In
addition, Fleener-Tays was convicted of Level 6 felony domestic battery in F6-
6376 and Class A misdemeanor invasion of privacy in CM-5216. Further,
when Fleener-Tays committed the Level 6 felony unlawful possession of a
legend drug offense in F6-4412, she was on probation for the convictions in F6-
6376 and CM-5216, and the State had already filed two petitions to revoke
probation in those cases. After the State had filed those petitions, Fleener-Tays
absconded and hid from the police for one year in order to avoid being arrested.
Fleener-Tays’ former contacts with the law have not caused her to reform
herself. See Jenkins v. State, 909 N.E.2d 1080, 1086 (Ind. Ct. App. 2009), trans.
denied. Based on this evidence, Fleener-Tays has failed to meet her burden to
persuade this Court that her two (2) year sentence imposed in F6-4412 is
inappropriate.
Outcome: Affirmed
Plaintiff's Experts:
Defendant's Experts:
Comments: