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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.

ATTORNEY FOR APPELLANT: ELIZABETH B. SEARLE Ball Eggleston PC Lafayette, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana GARY DAMON SECREST Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
TAMERA J. RICHARDS, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 79A04-0612-CR-740

APPEAL FROM THE TIPPECANOE CIRCUIT COURT The Honorable Donald L. Daniel, Judge Cause No. 79C01-0511-FC-52

May 31, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Tamera J. Richards appeals her sentence following convictions for Possession of a Controlled Substance, as a Class C felony, and being an Habitual Substance Offender pursuant to a guilty plea. She raises a single issue for our review, namely, whether her sentence is inappropriate in light of the nature of the offense and her character. We reverse and remand with instructions. FACTS AND PROCEDURAL HISTORY On September 10, 2005, Richards was stopped in her vehicle within 1000 feet of an elementary school in Tippecanoe County. She had in her possession unprescribed hydrocodone, a controlled substance. On November 3, the State charged Richards with possession of a controlled substance, as a Class C felony, and with being an habitual substance offender. On July 7, 2006, Richards pleaded guilty to both counts. Her plea agreement provided in relevant part: 1. That the defendant shall plead guilty to Count I, Possession of a Schedule III Controlled Substance as a Class C felony[,] and shall admit to being an Habitual Substance Offender, and any remaining counts herein shall be dismissed at the time of sentencing. 2. That the defendant shall receive such sentences as this Court deems appropriate after hearing any evidence or argument of counsel. The defendant waives notice of aggravating circumstances and factors for sentencing purposes and waives his/her right to a jury to decide aggravating circumstances and factors. The defendant consents to judicial fact-finding regarding aggravating and mitigating factors to determine the appropriate sentence. However, the executed portion of any sentences imposed shall not exceed a cap of three (3) years. Appellant's App. at 23. Thus, Richards agreed to leave sentencing open to the trial court, so long as the total length of her executed time did not exceed three years imprisonment.
2

At the subsequent sentencing hearing, the trial court made the following statements in sentencing Richards: The Court finds as a mitigating circumstance that the defendant has taken responsibility for her actions by entering a plea of guilty in this matter. Also that the defendant does have strong family support shown by the people here today and the defendant's history of mental health problems. The Court finds as aggravating circumstances the defendant's criminal history, which includes three misdemeanor convictions, another misdemeanor pending. On one occasion the defendant failed to appear and a warrant was issued. Two judgment withhelds [sic] and one judgment withheld that eventually was dismissed. The Court notes that all of those were alcohol or marijuana related. An additional aggravating circumstance is the defendant's history of illegal alcohol and drug use. A third aggravating circumstance is that prior attempts at rehabilitation have not been successful. A fourth aggravating circumstances is the defendant's high LSI-R score and a fifth aggravating circumstance is that the defendant was recently rejected from the house arrest program. The Court . . . finds that the aggravating circumstances outweigh the mitigators and accordingly the Court sentences the defendant on count one [for possession of a controlled substance] to six years and on[] count two to four years, to run consecutively for a total of ten years. The Court orders that three years be executed through the department of corrections [sic] . . . . The Court orders that three years be served on supervised probation and four years on unsupervised probation. Id. at 75-76. In other words, after finding five aggravating circumstances, the trial court enhanced Richards' conviction for the Class C felony to six years, 1 with three years suspended. The trial court then imposed a four year sentence on the habitual substance offender conviction, and ordered that sentence to be suspended and to run consecutive to the sentence on the Class C felony conviction. 2 This appeal ensued.

The sentence for a Class C felony conviction must be between two and eight years, and the advisory sentence is four years. Ind. Code

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