Carden v. State

Dawn M. Carden, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.

No. 22A-CR-1619

Court of Appeals of Indiana

January 30, 2023

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the Lake Superior Court, The Honorable Salvador Vasquez Judge, Trial Court Cause Nos. 45G01-2010-F5-478 45G01-2102-MR-17

Attorney for Appellant R. Brian Woodward Appellate Public Defender Crown Point, Indiana.

Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Steven J. Hosler Deputy Attorney General Indianapolis, Indiana

MEMORANDUM DECISION

TAVITAS JUDGE.

Case Summary

[¶1] Dawn Carden appeals her consecutive sentences totaling eleven years in the Department of Correction ("DOC"). Carden argues that the trial court abused its discretion by considering several aggravating factors and by imposing consecutive sentences. Finding that the trial court did not abuse its discretion, we affirm.

Issues

[¶2] Carden raises two issues on appeal, which we restate as:

I. Whether the trial court abused its discretion by considering certain aggravating factors.

II. Whether the trial court abused its discretion by imposing consecutive sentences.

Facts

[¶3] Carden provided guns, alcohol, and illegal drugs ranging from marijuana to MDMA^[1] to numerous teenagers in Gary, Indiana. She encouraged the teenagers to call her "Mama D." Appellant's App. Vol. III p. 118. Between September 9, 2020, and October 16, 2020,^[2] Carden provided firearms to Maxwell Kroll and Elijah Robinson, both age seventeen at the time, at her home in Gary.

[¶4] On or around October 16, 2020, Carden and her boyfriend, Alvino Amaya, believed that Kroll and Robinson had stolen a firearm that belonged to Carden's son. Early that morning, Amaya shot and killed Kroll and Robinson in a house in Griffith, Indiana. After killing the two teenagers, Amaya returned to Carden's home and told her, "I just f*****g killed [Kroll and Robinson]." Appellant's App. Vol. II p. 57. Carden then assisted Amaya in hiding the murder weapon by transporting it to a new storage unit that Carden rented under her father's name. Carden did so "with the intent to hinder the apprehension or punishment of [Amaya]." Id. Later that day, Robinson's girlfriend, D.S., spoke with Carden over the phone after she was unable to contact Robinson. Carden told D.S. that she had not seen Robinson since the night before.

[¶5] On October 21, 2020, in Cause No. 45G01-2010-F5-478 ("Cause No. 478"), the State charged Carden with three counts: Count I, dangerous control of a firearm, a Level 5 felony; Count II, dealing in marijuana, a Level 6 felony; and Count III, possession of marijuana, a Class B misdemeanor.

[¶6] On February 11, 2021, in Cause No. 45G01-2102-MR-17 ("Cause No. 17"), the State charged Carden with six counts: Count I, murder, a felony; Count II, murder, a felony; Count III, dealing in a narcotic drug, a Level 5 felony;^[3] Count IV, dealing in a narcotic drug, a Level 5 felony; Counts V, contributing to the delinquency of a minor, a Level 6 felony; and Count VI, contributing to the delinquency of a minor, a Level 6 felony. On August 17, 2021, the State amended its information in Cause No. 17 to allege that Carden used a firearm in the commission of the murders.

[¶7] On April 18, 2022, Carden and the State executed a plea agreement wherein the State agreed to amend its information in Cause No. 17 to add Count VII, assisting a criminal, a Level 5 felony; Carden agreed to plead guilty to that offense; and Carden also agreed to plead guilty to Count I, dangerous control of a firearm, as charged in Cause No. 478.^[4]

[¶8] At the June 9, 2022 hearing, the trial court accepted the plea agreement and entered judgments of conviction on Count I in Cause No. 478 and Count VII in Cause No. 17. The trial court proceeded to sentence Carden. The trial court found as mitigating factors that Carden pleaded guilty and admitted responsibility for the offenses. The trial court found five aggravators: 1) Carden's criminal history included two previous misdemeanor convictions; 2) Carden received "[p]rior leniency" in the form of probationary sentences for her misdemeanor offenses yet reoffended in the instant cases; 3) Carden's character is "dishonest and manipulative . . . [a]s demonstrated by her conduct before and after the deaths of Elijah Robinson and Maxwell Kroll"; 4) Carden is facing pending federal criminal charges for making a false statement in the acquisition of a firearm and forfeiture allegation; and 5) Carden "committed two separate and distinct offenses" and "the harm done by [Carden] substantially exceeded that which is necessary to satisfy the elements of the crime committed in both causes to which [Carden] pled guilty." Appellant's App. Vol. III p. 127. The trial court concluded that the aggravating circumstances "absolutely outweigh anything in mitigation." Tr. Vol. II p. 80.

[¶9] The trial court sentenced Carden to consecutive sentences of five years on the dangerous control of a firearm conviction and the maximum of six years on the assisting a criminal conviction, for a total of eleven years, to be executed in the DOC. Carden now appeals.

Discussion and Decision

[¶10] Carden argues that the trial court abused its discretion by considering certain aggravating factors and by imposing consecutive sentences. We disagree.

[¶11] "[S]ubject to the review and revise power [under Indiana Appellate Rule 7(B)], sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion." Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007) (citing Smallwood v. State, 773 N.E.2d 259, 263 (Ind. 2002)), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007); Phipps v. State, 90 N.E.3d 1190, 1197 (Ind. 2018). "An abuse occurs only 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." Schuler v. State, 132 N.E.3d 903, 904 (Ind. 2019) (citing Rice v. State, 6 N.E.3d 940, 943 (Ind. 2014)).

[¶12] A trial court abuses its discretion in a number of ways, including:

(1) "failing to enter a sentencing statement at all"; (2) entering a sentencing statement in which the aggravating and mitigating factors are not supported by the record; (3) entering a sentencing statement that does not include reasons that are clearly supported by the record and advanced for consideration; or (4) entering a sentencing statement in which the reasons provided in the statement are "improper as a matter of law."

Ackerman v. State, 51 N.E.3d 171, 193 (Ind. 2016) (quoting Anglemyer, 868 N.E.2d at 490-91), cert. denied.

[¶13] "This Court presumes that a court that conducts a sentencing hearing renders its decision solely on the basis of relevant and probative evidence." Schuler, 132 N.E.2d at 905. "When an abuse of discretion occurs, this Court will 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.'" Ackerman, 51 N.E.3d at 194 (quoting Anglemyer, 868 N.E.2d at 491).

I. Aggravating Factors

[¶14] Carden challenges the trial court's consideration of her criminal history as an aggravating factor. Carden was convicted of theft, a Class A misdemeanor, in 2011 and operating a vehicle with an alcohol concentration equivalent to or greater than .08 but less than .15, a Class C misdemeanor, in 2016. Carden argues that the trial court abused its discretion by considering Carden's criminal history as an aggravating factor and by assigning it certain weight. We disagree.

[¶15] As for the trial court's consideration of Carden's criminal history as an aggravator, Indiana Code Section 35-38-1-7.1(a)(2) permits a trial court to consider whether "[t]he person has a history of criminal or delinquent behavior" as an aggravator; see also Smith v. State, 889 N.E.2d 261, 263 (Ind. 2008). As for the weight of Carden's criminal history, the trial court did not assign any specific weight to this factor. In any case, "'a trial court can[]not . . . be said to have abused its discretion in failing to properly weigh' aggravators or mitigators." Morrell v. State, 118 N.E.3d 793, 796 (Ind.Ct.App. 2019) (quoting Anglemyer, 868 N.E.2d at 491) (internal quotation marks omitted), trans. denied. The trial court, accordingly, did not abuse its discretion in considering Carden's criminal history as an aggravator.^[5] [¶16] Carden also argues that the trial court improperly considered as an aggravating factor that "the harm done by [Carden] substantially exceeded that which is necessary to satisfy the elements of the crime committed in both causes to which [she] pled guilty." Appellant's App. Vol. III p. 127. We disagree.

[¶17] Pursuant to Indiana Code Section 35-38-1-7.1(a), "[i]n determining what sentence to impose for a crime, the court may consider the following aggravating circumstances:"

(1) The harm, injury, loss, or damage suffered by the victim of an offense was:

(A) significant; and

(B) greater than the elements necessary to prove the commission of the offense.

While a trial court cannot enhance a sentence based on the material elements of the offense alone, "the trial court may properly consider the particularized circumstances of the material elements of the crime" to be an aggravating factor." Hudson v. State, 135 N.E.3d 973, 989 (Ind.Ct.App. 2019) (citing Kien v. State, 782 N.E.2d 398, 414 (Ind.Ct.App. 2003), trans. denied); see also Gomilla v....