Turkette v. State

• Decision Date: 22 July 2020
• Docket Number: Court of Appeals Case No. 20A-CR-87
• Parties: Jennifer TURKETTE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
• Court: Indiana Appellate Court

151 N.E.3d 782

Jennifer TURKETTE, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 20A-CR-87

Court of Appeals of Indiana.

FILED July 22, 2020

Case Summary

[1] Jennifer Turkette appeals her ten-year aggregate sentence following her guilty plea to level 4 felony dealing in a narcotic drug, level 5 felony dealing in a narcotic drug, level 6 felony possession of a narcotic drug, and level 6 felony unlawful possession of a syringe. She contends that her sentence is inappropriate based on the nature of the offenses and her character. Concluding that Turkette has failed to carry her burden to show that her sentence is inappropriate, we affirm.

Facts and Procedural History¹

[2] On April 20, 2017, a Fort Wayne Police Department detective learned from a confidential informant (CI) that the detective could purchase heroin from Turkette. Appellant's App. Vol. 2 at 9-10. The detective and the CI went to Turkette's trailer, where Turkette seated them in her family room, which held numerous children's toys. Turkette told the detective that she was currently on home detention and had two children who were sleeping. The presentence investigation report (PSI) reveals that Turkette was on home detention for driving with a suspended license with a prior conviction. Id. at 84-85. Turkette also told the detective that her supplier provided her with pure uncut heroin and that three of her buyers had overdosed since the beginning of the year. She informed the detective that someone would be coming to the trailer with the heroin. When that person arrived, Turkette asked the detective for the money. After the detective gave her $200, she went to the front door and stood just outside it. A man ran up to the door with a plastic bag and gave it to Turkette, and she handed him the money. Turkette came back inside and immediately handed the detective the plastic bag, which contained .8 grams of heroin.

[3] On May 2, 2017, the CI informed the detective that he could purchase heroin from Turkette, and they went to her trailer. Turkette again seated them in the family room, where two children both under the age of ten were playing. Turkette had previously told the CI that the heroin was "killer" and that three people had already overdosed on it that week. Id. at 7. A different man than the one before arrived at the trailer, and Turkette asked the detective and the CI who had the money. The detective then paid Turkette $200 for the heroin. The man and Turkette went to the back of the trailer to divide the heroin, leaving the children alone with the detective and the CI. Turkette came back to the family room where the children were still playing and gave the detective .9 grams of heroin wrapped in yellow paper.

[4] Based on these incidents, on February 12, 2018, in cause number 02D05-1802-F4-11 (Cause 11), the State charged Turkette with level 4 felony dealing in a narcotic drug in an amount less than one gram in the presence of a child less than eighteen years old and level 5 felony dealing in a narcotic drug in an amount less than one gram. On June 4, 2018, Turkette agreed to plead guilty to both charges and waived her right to be sentenced within thirty days, and the trial court signed an order placing her into the Drug Court Diversion Program. Id. at 24-30. Turkette also signed a drug court participation agreement.

[5] Less than three weeks later, on June 24, 2018, Turkette's then-eleven-year-old child called 911 to report an overdose victim. Tr. Vol. 1 at 19. Medics and police were dispatched to a house, where they found Turkette overdosed and unconscious with the hypodermic needle still in her arm. Appellant's App. Vol. 2 at 177-78. Turkette was in the basement of the house with both of her children. Police discovered that Turkette was in possession of .2 grams of fentanyl after the older child opened Turkette's purse to show them where "mommy's dope is." Tr. Vol. 1 at 19.

[6] Based on this incident, on August 3, 2018, in cause number 02D05-1808-F6-917 (Cause 917), the State charged Turkette with level 6 felony possession of a narcotic drug and level 6 felony unlawful possession of a syringe. On August 13, 2018, Turkette agreed to plead guilty to both charges and waived her right to be sentenced within thirty days, and the trial court signed an order placing her into the Drug Court Diversion Program. Appellant's App. Vol. 2 at 187-93. Turkette also signed a drug court participation agreement.

[7] On August 22, 2018, in the United States District Court for the Northern District of Indiana, Turkette was charged with knowingly selling a firearm to a convicted felon.² Id. at 226. Turkette was convicted of that offense, and on August 21, 2019, she was sentenced to fifteen months in the bureau of prisons and to two years of supervised release. Id.

[8] On June 18, 2019, Turkette moved to withdraw her guilty pleas in both state causes, which the trial court granted, and her cases were returned to the active trial docket. Id. at 59, 214. On October 18, 2019, Turkette pled guilty in both causes without a plea agreement. Id. at 74, 219.

[9] On November 15, 2019, a sentencing hearing was held. The trial court acknowledged Turkette's remorse and found it to be a mitigating factor. The trial court found that her criminal history, consisting of seven misdemeanors and her federal felony conviction for selling a firearm to a convicted felon, was an aggravating factor. The trial court further found as aggravating factors that she had one suspended sentence that was revoked, was serving a suspended sentence and wearing an ankle bracelet for home detention when she committed the level 4 felony,³ and was on bond when she committed the level 6 felonies; the court explained that such conduct showed a "complete disdain" for the court system. Tr. Vol. 1 at 25. The trial court also noted that the PSI indicated that Turkette was a high risk to reoffend, which the court would use as a tool in determining whether it should execute Turkette's sentence or place her on supervised release. The trial court also found that Turkette bragged about people overdosing from the heroin she sold them and that her child showed the police where her drugs were. The trial court found that the advisory sentence was not appropriate and that the facts and circumstances of the offenses and prior failed attempts at rehabilitation warranted a sentence above the advisory.

[10] In Cause 11, the trial court sentenced Turkette to concurrent executed terms of eight years for the level 4 felony and four years for the level 5 felony. In Cause 917, the trial court sentenced Turkette to concurrent terms of two years with one year suspended for each conviction. The trial court further ordered that the sentence in Cause 917 be served consecutive to the sentence in Cause 11, for an aggregate sentence of ten years with one year suspended. This appeal ensued.

Discussion and Decision

[11] Turkette asks us to revise her sentence pursuant to Indiana 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." Turkette has the burden to show that her sentence is inappropriate. Anglemyer v. State , 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g 875 N.E.2d 218. Although Rule 7(B) requires us to consider both the nature of the offense and the character of the offender, the appellant is not required to prove that each of those prongs independently renders her sentence inappropriate. Connor v. State , 58 N.E.3d 215, 218 (Ind. Ct. App. 2016) ; see also Moon v. State , 110 N.E.3d 1156, 1163-64 (Ind. Ct. App. 2018) (disagreeing with majority's statement that Rule 7(B) "plainly requires the appellant to demonstrate that his sentence is inappropriate in light of both the nature of the offenses and his character.") (quotation marks omitted) (Crone, J., concurring in part and concurring in result in part). Rather, the two prongs are separate inquiries that we ultimately balance to determine whether a sentence is inappropriate. Connor , 58 N.E.3d at 218.

[12] When reviewing a sentence, our principal role is to leaven the outliers rather than necessarily achieve what is perceived as the correct result in each case. Cardwell v. State , 895 N.E.2d 1219, 1225 (Ind. 2008). We review sentences in their entirety to avoid overlooking the forest by focusing on the trees. Id. "We do not look to determine if the sentence was appropriate; instead we look to make sure the sentence was not inappropriate." Conley v. State , 972 N.E.2d 864, 876 (Ind. 2012). "[S]entencing is principally a discretionary function in which the trial court's judgment should receive considerable deference." Cardwell , 895 N.E.2d 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). As we assess the nature of the offenses and character of the offender, "we may look to any factors appearing in the record." Boling v. State , 982 N.E.2d 1055, 1060 (Ind. Ct. App. 2013). Ultimately, whether a sentence should be deemed inappropriate "turns on our sense of 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 1224.⁴

[13] Turning first to the nature of the offenses, we observe that "the advisory sentence is the starting point the Legislature selected as appropriate for the crime committed." Pierce v. State , 949 N.E.2d 349, 352 (Ind. 2011). In Cause 11, Turkette was convicted of possession of a...