Burshone Conner v. State of Indiana (mem. dec.) , 121 N.E.3d 136 ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 16 2019, 6:22 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Amy P. Payne Curtis T. Hill, Jr.
Monroe County Public Defender Attorney General of Indiana
Bloomington, Indiana
Matthew Michaloski
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Burshone Conner, January 16, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1569
v. Appeal from the Monroe Circuit
Court
State of Indiana, The Honorable Mary Ellen
Appellee-Plaintiff Diekhoff, Judge
Trial Court Cause No.
53C05-1504-F5-374
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1569 | January 16, 2019 Page 1 of 11
[1] Burshone Conner appeals her six-year sentence for Level 5 felony dealing in
cocaine. 1 Conner argues her sentence is inappropriate. Within that argument
Conner alleges prejudicial trial court bias because the trial court judge “had
formed an opinion of the outcome before the sentencing occurred and that the
judge had antagonistic beliefs toward [Conner].” (Br. of Appellant at 10.)
After carefully reviewing the record, we affirm.
Facts and Procedural History
[2] In February 2015, Conner sold what she believed to be cocaine to a police
informant. For that act, the State charged Conner with one count of Level 5
felony dealing in cocaine under cause number 53C05-1504-F5-374 (“Cause
374”). At the same time, but based on other actions, the State charged Conner
with Level 6 felony theft 2 and Level 6 felony forgery 3 under a different cause
number, 53C05-1504-F6-375 (“Cause 375”). 4 In March 2016, Conner entered a
guilty plea for both cause numbers. Judge Mary Ellen Diekhoff delayed
sentencing and allowed Conner to leave Monroe County to attend a residential
rehabilitation program at the YWCA in South Bend, Indiana.
1
Ind. Code § 35-48-4-1 (2014).
2
Ind. Code § 35-43-4-2 (2014).
3
Ind. Code § 35-43-5-2 (2014).
4
The record provided to us contains only the charging information for Cause 375. (See App. Vol. 2 at 11-14
(Information, Appearance, Probable Cause Affidavit, and an Order for a warrant all pertaining to the theft
and forgery charges).) Thus, we relied on the Chronological Case Summary to present the facts and
procedural history of this appealed case, Cause 374.
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[3] While enrolled at the YWCA and for a time period afterward when Conner
was securing housing and employment, Judge Diekhoff repeatedly continued
Conner’s sentencing hearing in light of Conner’s positive progress. During this
time, Conner also attended hearings in a Child in Need of Services (“CHINS”)
case in Monroe County. Judge Diekhoff attempted to schedule hearings in this
matter at the same time as Conner’s CHINS hearings so that Conner could
limit her trips to Monroe County.
[4] On May 24, 2018, the trial court held the sentencing hearing. Conner had
missed two prior scheduled sentencing hearings and had a new criminal charge
in Marion County for false informing. At this hearing, Conner admitted having
had a relapse between February 2018 and April 2018. Conner had not
informed the court of this but had, eventually, decided to attempt treatment on
her own. Conner stated she was nervous about coming to court. Conner
testified:
I did not want the Judge to see me because the guy that I was
seeing in south [sic] Bend had beat me up and I had a black eye
and bruises all over my body. I was more ashamed. I was hurt
and I was more afraid because I had let her and myself down.
(Tr. Vol. 2 at 38.)
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[5] During her sentencing statement, Judge Diekhoff noted she had worked with
Conner over many years through Monroe County’s Problem Solving Court 5
and now in this matter. Judge Diekhoff asked Conner why Conner did not
trust her enough to keep her informed after all the trust Judge Diekhoff had
placed in Conner. On hearing Conner’s response that she was “scared,” (id. at
48), Judge Diekhoff stated her belief that “nothing has changed” in Conner’s
behavior since they first met in Problem Solving Court. (Id.)
[6] Judge Diekhoff noted the leniency the Court had shown to Conner during this
case: sentencing was delayed, Conner was allowed to leave the county to attend
a residential rehabilitation program, and hearings had been scheduled to
coincide with the CHINS hearings. Nevertheless, Conner had still failed to
appear for two hearings, had gotten a traffic ticket for which she had failed to
appear in another county, had acquired another criminal charge in Marion
County, had been in a house in Bloomington wherein drugs were found, and
had relapsed back into drug use. Especially disturbing to Judge Diekhoff was
Conner’s failure to inform the court of these facts.
[7] Judge Diekhoff then “apologize[d] to the State of Indiana for what ended up
making [sic] a bad decision.” (Id. at 56.) Judge Diekhoff stated:
5
Monroe County’s Problem Solving Court Program “provide[s] an opportunity and services to selected
offenders by addressing criminogenic risk factors through supervision and treatment.”
https://www.co.monroe.in.us/department/division.php?structureid=129 (last visited December 20, 2018).
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So the Court . . . is out of options. I have no places [sic] else to
put her. No place else to send her to treatment; no place else
where I can trust her to be somewhere. Because I cannot even
trust her to be in this Court when she was supposed to have been.
Although she managed to find her way to Monroe County
without coming to Court. To say that the Court is highly
disappointed would be an understatement. The Court truly
believes that Ms. Conner was completely capable and was
actually desiring to change her life and do something differently
than she had done. Based upon all the factors which the Court
has now indicated the Court now agrees with the State of Indiana
and at this time the only appropriate and the only sentenced [sic]
that the Court is left with is to sentence Ms. Conner to the
Department of Corrections [sic]. The Court would note again for
the purposes of the record the Court attempted to avoid it by
allowing Ms. Conner to go outside of this county to seek
treatment and be able to address the issues. The Court is now
convinced that Ms. Conner’s issues are more criminal in nature
more so than they are any other type of issue. Having now
exhausted all available treatment; all available options; all
available everything [the Court proceeds to sentencing.]
(Id. at 56-57.)
[8] Conner requested she be given credit time for inpatient treatment at the
YWCA. Judge Diekhoff originally said, “No not this time.” (Id. at 52.)
However, after noting the aggravators and mitigators, Judge Diekhoff granted
Conner’s request for the inpatient treatment credit time and applied all credit
time to the sentence in Cause 375. For the Level 5 felony dealing in cocaine in
Cause 374, which is under review in this appeal, Judge Diekhoff sentenced
Conner to six years in the Indiana Department of Correction.
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Discussion and Decision
[9] Conner argues the nature of her offense and evidence of her good character do
not warrant the maximum sentence she was given. Further, Conner asserts the
“trial court failed to reach its sentencing conclusion in a fair, calculated manner
[and] did not sentence [Conner] based on the merits of this case but on the basis
of a personal antagonism toward [Conner].” (Br. of Appellant at 6.)
[10] “The law presumes that a judge is unbiased and unprejudiced. . . . A defendant
asserting judicial bias must show the trial judge’s actions and demeanor showed
partiality and prejudiced the case.” Woods v. State, 98 N.E.3d 656, 664 (Ind. Ct.
App. 2018) (internal citations omitted), trans. denied. “[I]ntemperate comments
may not necessarily demonstrate bias.” Id. A trial court judge is permitted to
form opinions based on the facts of the case “occurring in the course of the
current proceedings, or of prior proceedings[.]” Liteky v. United States, 510 U.S.
540, 555 (1994). Statements of “impatience, dissatisfaction, annoyance, and
even anger” do not establish bias. Id. at 555-56.
[11] Although Judge Diekhoff’s statements may have reflected her impatience with
this situation or her frustration with Conner’s failure to take advantage of the
opportunities the court provided, that impatience or frustration, by itself, does
not equate to judicial bias. See Woods, 98 N.E.3d at 664 (judicial bias consists of
partiality and prejudice to the case). Furthermore, Judge Diekhoff’s “apology”
to the State, (see Tr. Vol. II at 56), appears to have been an expression of Judge
Diekhoff’s regret that she had allowed Conner so much leeway and delayed the
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sentencing for two years when Conner’s more recent actions demonstrated that
investment of time had not paid off. If that statement could be considered a
statement of dissatisfaction or annoyance, it seems Judge Diekhoff developed
that opinion based on the facts of current and past proceedings in her court,
which is not impermissible. See Liteky, 510 U.S. at 555-6 (judges may form
opinions based on proceedings, and dissatisfaction and annoyance do not
establish bias). Although none of Judge Diekhoff’s statements “necessarily
demonstrate bias,” see Woods, 98 N.E.3d at 664, we review the appropriateness
of Conner’s sentence to ensure no prejudice occurred.
[12] Under Ind. Appellate Rule 7(B), we may revise a sentence if, after due
consideration of the trial court’s decision, we find the sentence inappropriate in
light of the nature of the offense and the character of the offender. Anglemyer v.
State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (2007).
We consider not only the aggravators and mitigators found by the trial court,
but also any other factors appearing in the record. Johnson v. State, 986 N.E.2d
852, 856 (Ind. Ct. App. 2013). We defer to the trial court’s decision, and our
goal is to determine whether the defendant’s sentence is inappropriate, not
whether some other sentence would be more appropriate. Conley v. State, 972
N.E.2d 864, 876 (Ind. 2012), reh’g denied. Conner, as the appellant, bears the
burden of demonstrating her sentence is inappropriate. See Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
[13] When considering the nature of the offense, the advisory sentence is the starting
point for determining the appropriateness of a sentence. Anglemyer, 868 N.E.2d
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at 494. The sentencing range for a Level 5 felony is “a fixed term of between
one (1) and six (6) years, with the advisory sentence being three (3) years.” Ind.
Code § 35-50-2-6(b) (2014). The trial court sentenced Conner to six years for
the Level 5 felony. Thus, Conner received the maximum sentence for her
offense.
[14] Conner sold what she believed to be cocaine to a confidential informant. While
we acknowledge the fact that this means the drugs were not introduced to the
general populace, Conner did not know the buyer was an informant when she
committed the crime. Her behavior indicates her willingness to sell illegal drugs
and her ability to find drugs to sell. Nevertheless, there is nothing more
egregious about Conner’s crime than the standard dealing offense. Thus, we
turn to Conner’s character.
[15] Conner argues that although the trial court “acknowledged the addiction,
mental health concerns, abusive relationships, and the completion of some
treatment, [it] did not consider other mitigating traits in Conner’s character.”
(Appellant’s Br. at 9.) This argument is unavailing.
[16] As mitigators, Conner points to her battle with addiction, her “successful[]”
completion of treatment, her lifetime of abusive relationships, her mental health
concerns, her mentoring of other women at the YWCA, her two years of
sobriety, her going back to treatment “of her own volition,” her employment,
and her ability to procure housing. (Id.) While the trial court may not have
mentioned all of these mitigators in the same words, it commented extensively
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on Conner’s recent history. (See Tr. Vol. 2 at 45-57 (trial court’s statements
about Conner’s actions and behaviors and its subsequent decision on
sentencing).) Nevertheless, the trial court is not obliged to give mitigators the
same weight the defendant would, Flickner v. State, 908 N.E.2d 270, 273 (Ind.
Ct. App. 2009), and we may not reweigh the aggravators and mitigators
presented. Anglemyer, 868 N.E.2d at 491.
[17] When considering the character of the offender, another relevant fact is the
defendant’s criminal history. Johnson, 986 N.E.2d at 857. The significance of
criminal history varies based on the gravity, nature, and number of prior
offenses in relation to the current offense. Id. Conner acknowledges her
criminal history but contends that her completion of Problem Solving Court
and the rehabilitation program offered through the South Bend YWCA,
together with her guilty plea, show “her acceptance of responsibility, [a] sincere
effort to mend her ways, and her lack of criminal thinking.” (Br. of Appellant
at 6.)
[18] Conner’s criminal history includes convictions of misdemeanor conversion,
felony maintaining a common nuisance, two counts of felony forgery, and
felony fraud on a financial institution. She had also been charged with felony
forgery, felony fraud, felony theft, and felony identity deception, but those
charges were dismissed due to her successful completion of Problem Solving
Court. Conner has been placed on probation five times and was found in
violation thereof four times.
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[19] The trial court noted Conner’s “extensive criminal history” (Tr. Vol. 2 at 52),
dating back to 1991. It noted she was involved in the Problem Solving Court
and successfully completed the program, but then she reoffended. The court
enumerated the various programs and opportunities to which Conner had been
given access, including the Problem Solving Court and the out-of-town YMCA
program, and it noted Conner nevertheless continued to commit crimes,
including the commission of additional crimes while awaiting sentencing for
this crime. The trial court concluded it was left with no option except to place
Conner in the Department of Correction.
[20] Conner’s criminal history demonstrates a pattern of behavior indicative of a
failure to take responsibility for her actions, and it does not lead us to see as
inappropriate the trial court’s sentence of six years. See Rutherford v. State, 866
N.E.2d 867, 874 (Ind. Ct. App. 2007) (continuing to commit crimes after
frequent contacts with the judicial system is a poor reflection on one’s
character); see also Connor v. State, 58 N.E.3d 215, 221 (Ind. Ct. App. 2016)
(continued crimes indicate a failure to take full responsibility for one’s actions).
[21] Based on our review of Conner’s character and offense, Connor has not
demonstrated Judge Diekhoff’s statements at the sentencing hearing prejudiced
Conner’s sentence. See, e.g., Danner v. State, 900 N.E.2d 9, 13 (Ind. Ct. App.
2008) (a maximum sentence is not inappropriate when the defendant has shown
a “complete disregard for the law” together with an extensive criminal history);
see also Lamar v. State, 915 N.E.2d 193, 196 (Ind. Ct. App. 2009) (maximum
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sentence is not inappropriate, even if nature of offense is not particularly
egregious, if the character of the offender is poor).
Conclusion
[22] Because Conner’s six-year sentence is not inappropriate in light of her
character, especially her criminal history and her failure to take advantage of
repeated opportunities provided by the trial court, Conner has not demonstrated
Judge Diekhoff was biased against her. Accordingly, we affirm.
[23] Affirmed.
Baker, J., and Tavitas, J., concur.
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