COA affirms felony drug conviction sentence, invites justices’ guidance on modifications

A panel of the Indiana Court of Appeals unanimously affirmed a woman’s almost 10-year sentence for four felony drug convictions, but one appellate judge paused to invite further guidance from the Indiana Supreme Court on a sentencing issue he says has caused a split of opinion among his colleagues.

In Jennifer Turkette v. State of Indiana, 20A-CR-87, Jennifer Turkette was found guilty of 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.

Turkette’s convictions stem from two separate causes, first after she was convicted of possession of a narcotic for dealing drugs in the presence of her children. The second cause occurred after one of the children called 911 when Turkette overdosed on heroin while with her kids, who were later able to show police where “mommy’s dope is.”

Along with her convictions, Turkette was sentenced to an aggregate 10 years behind bars with one year suspended. A panel of the Indiana Court of Appeals affirmed, rejecting Turkette’s request for a revision of her sentence pursuant to Indiana Appellate Rule 7(B) and finding that her sentence was not inappropriate in light of the nature of the offenses and her character.

Judge L. Mark Bailey, although concurring with the majority view that Turkette’s sentence is not inappropriate, wrote separately to address the focus of the majority’s footnote concerning whether the trial court’s findings of aggravators and mitigators provide the appellate court with initial guidance in its review, “as well as the current split on this Court as to whether, under Indiana Appellate Rule 7(B), an appellant must satisfy one or two prongs to obtain revision of a sentence as inappropriate.”

“As the majority observes, panels of this Court have often cited a pre-(Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007)) case for the proposition that a trial court’s findings of aggravators and mitigators serve as an ‘initial guide’ in our Rule 7(B) review for inappropriateness. Indeed, this author has done so,” Bailey wrote in a separate opinion. “Although such nomenclature has been frequent, I would now be inclined to reject it, because it serves as a shorthand phrase suggesting that we are directly reviewing the trial court’s work. We are not.

“In short, although we give ‘due consideration’ to the trial court’s decision, we are not conducting a line-item review of the articulated aggravators and mitigators. Because the ‘initial guidance’ language might be read to suggest that we consider the trial court’s sentencing statement as a pronouncement of findings and conclusions, perhaps in some manner constraining our 7(B) review akin to a search for clear error, I agree that we are not well served by continuing to repeat it,” Bailey continued.

The appellate judge noted that a split of opinion exists among the Indiana Court of Appeals “as to whether sentence revision may be obtained only upon showing inappropriateness under both prongs.”

“Some judges construe the Court’s use of the word ‘and’ in the governing Rule and in caselaw to mean that a successful appellant must identify compelling positivity related to both the nature of the offense and to the appellant’s character. Other judges are persuaded that an appellant is not required to independently show revision is warranted with reference to each prong, because the role of this Court is to ‘ultimately balance’ what is known of the nature of the offense and the character of the offender,” Bailey wrote.

“I, like the majority here, view this ultimate balancing as our role in 7(B) review. Although we must consider the evidence relative to each prong, the appellant need not necessarily prove inappropriateness as to each prong. Indeed, the statutory definition of certain offenses (such as simple possession) may not allow for portrayal of the offense in a positive light. That said, we await and invite further guidance from our Supreme Court.”

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