Opinion
No. 48A02-1103-CR-176
09-22-2011
HEATHER L. ZION, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT : JASON A. CHILDERS Hulse, Lacey, Hardacre, Austin, Sims & Childers Anderson, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana JANINE STECK HUFFMAN Deputy Attorney General Indianapolis, Indiana
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:
JASON A. CHILDERS
Hulse, Lacey, Hardacre, Austin, Sims & Childers
Anderson, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
JANINE STECK HUFFMAN
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Rudolph R. Pyle, III, Judge
Cause No. 48C01-1002-FC-64
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER , Judge
Heather Zion pleaded guilty to Robbery, a class C felony, Fraud, a class D felony, and Forgery, a class C felony, and was subsequently sentenced to an aggregate term of six years, with two years suspended to formal probation. Zion presents one issue for our review: Is the sentence imposed by the trial court inappropriate in light of the nature of the offense and the character of the offender?
We affirm.
On February 4, 2010, Zion knowingly took a wallet and its contents from Debra Rock by placing Rock in fear. Specifically, Rock and her niece had finished shopping at Payless and had returned to their vehicle. As Rock attempted to close her car door, Zion approached and demanded her wallet. Rock refused to comply with Zion's demand. Zion hit Rock in the chest and grabbed Rock's wallet. Zion then used Rock's credit card, without Rock's consent, and obtained cigarettes from a Village Pantry located in Anderson, Indiana. In so doing, Zion signed Rock's name on the credit card receipt.
On February 12, 2010, the State charged Zion with one count of robbery as a class C felony, one count of fraud as a class D felony, and one count of forgery as a class C felony. Without the benefit of a plea agreement, Zion pleaded guilty to all charges on November 8, 2010. The trial court held a sentencing hearing on January 31, 2011. During the sentencing hearing, Zion testified that she had taken the G.E.D. exam but that she did not yet know whether she had passed, that she was participating in the Choices Program, and indicated that she had been compliant with and passed all drug screens. Zion also reported that she was employed as a waitress. The State presented the victim impact statement of Debra Rock, wherein she stated that after the incident in question occurred, she was afraid to go anywhere, to open the drapes or blinds in her house, to talk to anyone, and that she had difficulty going to sleep.
In announcing Zion's sentence, the trial court identified Zion's guilty plea as the only mitigating factor. As aggravating, the trial court identified Zion's criminal history. The trial court then sentenced Zion to six years for the class C felony robbery conviction, three years for the class D felony fraud conviction, and six years for the class C felony forgery conviction. The trial court ordered the sentences to be served concurrently. The trial court further ordered four years of the aggregate six-year sentence executed and two years served on probation.
Zion argues that the sentence imposed is inappropriate. Article 7, section 4 of the Indiana Constitution grants our Supreme Court the power to review and revise criminal sentences. Pursuant to Ind. Appellate Rule 7, the Supreme Court authorized this court to perform the same task. Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008). Per App. R. 7(B), we may revise a sentence "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." Wilkes v. State, 917 N.E.2d 675, 693 (Ind. 2009), cert. denied, 131 S.Ct. 414 (2010). "[S]entencing is principally a discretionary function in which the trial court's judgment should receive considerable deference." Cardwell v. State, 895 N.E.2d at 1223. Zion bears the burden on appeal of persuading us that her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073 (Ind. 2006).
As to the nature of the offense, we agree with the trial court that "it's not the worst type of crime that you can commit but it is horrible nonetheless, especially from the perspective of . . . Ms. Rock." Transcript at 31. We note that the victim was fifty-nine years old at the time of the incident. She was minding her own business when Zion came out of nowhere and demanded that she hand over her wallet. To accomplish the task, Zion placed the victim in fear and hit the victim in the chest. Thus, while not the worst of offenses, the nature of the offense does not lend itself to a completely suspended sentence as requested by Zion. We agree with the trial court that executed time at the Department of Correction is appropriate given that Zion, while strung out on crack, endangered a member of the community by placing her in fear for a total of sixteen dollars in cash and a pack of cigarettes.
As to the character of the offender, Zion's criminal history is telling. Particularly informative is that Zion's criminal history includes a 2008 conviction for battery resulting in bodily injury. In that case, Zion was sentenced to a period of probation during which Zion violated her probation by failing to appear. Zion was on probation when the current incident occurred, leading to the filing of a notice of probation violation in that prior case. Additionally, at only twenty years of age, Zion has been arrested for driving while suspended (three times), possession of marijuana (twice), contributing to a minor (once), and criminal conversion (once). With regard to the instant offense, Zion claimed that she was on "crack". Transcript at 31. Viewed in its totality, Zion's criminal history presents a picture that Zion has consistently and repeatedly been in trouble for crimes involving illegal drugs and disregard of other's property rights. Zion has also demonstrated a complete disregard for the court's orders. That Zion pleaded guilty without the benefit of a plea agreement and that she has moved forward with trying to earn a G.E.D. and maintain stable employment is to be commended, but does not convince us that her character is deserving of a reduced or completely suspended sentence.
In light of the nature of the offense and the character of the offender, we cannot say that the aggregate sentence of six years, with two years suspended to probation, is inappropriate.
Judgment affirmed. DARDEN, J., and VAIDIK, J., concur.