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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Dec 31 2008, 9:19 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: KIMBERLY A. JACKSON Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
DEANA I. POWELL, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 11A01-0808-CR-364

APPEAL FROM THE CLAY CIRCUIT COURT The Honorable Joseph D. Trout, Judge Cause No. 11C01-0510-FA-417

December 31, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Deana Powell appeals her sentence following her convictions for Possession of Methamphetamine, as a Class C felony, and Possession of a Sawed-off Shotgun, a Class D felony, under a guilty plea. Powell presents two issues for our review: 1. 2. Whether the trial court abused its discretion when it sentenced her. Whether her sentence is inappropriate in light of the nature of the offenses and her character.

We affirm. FACTS AND PROCEDURAL HISTORY On October 17, 2005, Clay County Sheriff's deputies executed a search warrant at Powell's residence. During the course of that search, deputies found sixteen guns,

including a sawed-off shotgun, and methamphetamine. The State charged Powell with dealing in a schedule I, II, or III controlled substance, as a Class A felony, dealing in a schedule IV controlled substance, as a Class B felony, possession of methamphetamine, as a Class B felony, possession of methamphetamine, as a Class C felony, and possession of a sawed-off shotgun, a Class D felony. In exchange for Powell's guilty plea on the Class C felony possession of methamphetamine and possession of a sawed-off shotgun charges, the State agreed to dismiss the remaining charges. The plea agreement left sentencing to the trial court's discretion. At sentencing, the trial court imposed

concurrent, advisory sentences, resulting in an aggregate four-year sentence, with two years suspended. This appeal ensued.

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DISCUSSION AND DECISION Issue One: Abuse of Discretion Powell first contends that the trial court abused its discretion in sentencing her. Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of that discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on other grounds on reh'g, 875 N.E.2d 218 (Ind. 2007). "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. (quotation omitted). One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Other examples include entering a sentencing statement that explains reasons for imposing a sentence--including a finding of aggravating and mitigating factors if any--but the record does not support the reasons, or the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or the reasons given are improper as a matter of law. Under those circumstances, remand for resentencing may be the appropriate remedy 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. Id. at 490-91. Here, the trial court identified the following aggravators: Powell used

methamphetamine while she was out on bond for these offenses, and the nature and circumstances of the crime. And the court identified the following mitigators: her remorse, and lack of significant criminal history. In light of those factors, the trial court imposed the advisory sentence on each conviction (four years and one and one-half years, respectively) and ordered that the sentences would run concurrently. In addition, the trial

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court ordered that two years of the total four-year sentence would be suspended to probation. On appeal, Powell first contends that the nature and circumstances of the crime aggravator was improper as a matter of law. In explaining that aggravator, the trial court noted that Powell had a large quantity of drugs in her home at the time of her arrest. But Powell points out that there was no evidence of the quantity of drugs she possessed. She did not admit to the possession of a certain quantity of drugs at either the guilty plea hearing or the sentencing hearing. While the probable cause affidavit described the amount of drugs, the affidavit was not submitted as evidence.1 However, in explaining this aggravator, the trial court also said, "I think the nature and circumstances of this particular crime, according to the probable cause affidavit and your own statements, far exceed what is necessary to convict you of the charges for which you have pled guilty." Transcript at 60 (emphasis added). Powell admitted to possessing a total of sixteen guns and methamphetamine in her home, where her two children reside with her. Her possession of methamphetamine conviction was elevated to a Class C felony based upon her concurrent possession of a firearm. See Ind. Code

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