Katie Lee McCumber, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2024)

MEMORANDUM DECISION

Tavitas, Judge.

Case Summary

[1] Following a guilty plea, Katie Lee McCumber was sentenced to 540 days for two counts of invasion of privacy, Class A misdemeanors, and conversion, a Class A misdemeanor. McCumber argues that her sentence was inappropriate. We disagree and, accordingly, affirm.

Issue

[2] McCumber raises one issue, which we restate as whether McCumber's sentence is inappropriate.

Facts

[3] On September 21, 2020, a trial court issued an ex parte protection order against McCumber. The protected person was M.P. On December 16, 2020, McCumber violated this protection order by appearing on M.P.’s driveway. When M.P.’s husband told McCumber that she should not be there, McCumber extended her middle finger and drove away. As a result of this incident, on December 29, 2020, the State charged McCumber with invasion of privacy, a Class A misdemeanor, under Cause No. 71D04-2012-CM-3809 (“Cause No. CM-3809”).

[4] On May 4, 2022, McCumber again violated the above-mentioned ex parte protection order. McCumber approached M.P. in the parking lot of a Meijer and tried to speak with her. As a result of this incident, on May 13, 2022, the State charged McCumber with invasion of privacy, a Class A misdemeanor, under Cause No. 71D05-2205-CM-1034 (“Cause No. CM-1034”).

[5] On September 17, 2022, McCumber was detained in a Macy's store for trying to leave the store with a necklace and a handbag without paying for them. As a result, on October 3, 2022, the State charged McCumber with conversion, a Class A misdemeanor, under Cause No. 71D05-2209-CM-1877 (“Cause No. CM-1877”).

[6] On January 12, 2024, in a consolidated hearing, McCumber pleaded guilty to the offenses in all three cases, and the trial court entered judgments of conviction. In sentencing McCumber, the trial court found McCumber's criminal history to be an aggravator and noted that McCumber repeatedly violated the protection order. The trial court, however, gave McCumber credit for pleading guilty and accepting responsibility. The trial court sentenced McCumber to 180 days for each of the three convictions and ordered that the sentences be served consecutively, for a total sentence of 540 days. McCumber now appeals.

Discussion and Decision

[7] McCumber argues that her 540-day sentence is inappropriate. The Indiana Constitution authorizes independent appellate review and revision of sentences imposed by a trial court. Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (citing Ind. Const. art. 7, §§ 4, 6). This authority, as implemented through Appellate Rule 7(B), enables this Court to “revise a sentence authorized by statute 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.” Deference to the trial court's sentence should prevail unless “overcome by compelling evidence portraying in a positive light the nature of the offense and the defendant's character.” Oberhansley v. State, 208 N.E.3d 1261, 1267 (Ind. 2023) (internal quotations omitted). A defendant, however, need not show that both the nature of the offense and his or her character warrant revision; rather, “a strong showing on one prong” may “outweigh a weak showing” on the other prong. Lane, 232 N.E.3d at 127.

[8] Additionally, in determining whether a sentence is inappropriate, we are not limited to the aggravating and mitigating circumstances found by the trial court. Oberhansley, 208 N.E.3d at 1271. “Our role is primarily to leaven the outliers and identify guiding principles for sentencers, rather than to achieve the perceived correct result in each case.” Lane, 232 N.E.3d at 122 (internal quotations omitted). “Ultimately, we rely on our collective judgment as to the balance of all the relevant considerations involved, which include the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Id. (internal quotations omitted).

[9] When determining whether a sentence is inappropriate, the advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). Indiana Code Section 35-50-3-2 provides that “[a] person who commits a Class A misdemeanor shall be imprisoned for a fixed term of not more than one (1) year ․” Here, McCumber pleaded guilty to three Class A misdemeanors and was sentenced to six months for each, to be served consecutively.

Nature of the Offense

[10] Our analysis of the “nature of the offense” requires us to look at the extent, brutality, and heinousness of the offense. See Wilson v. State, 157 N.E.3d 1163, 1182 (Ind. 2020). McCumber argues that her offenses were not egregious. McCumber twice committed invasion of privacy by violating a protection order. First, she went to M.P.’s driveway, and when M.P.’s husband asked her to leave, McCumber extended her middle finger and drove away. Second, McCumber approached M.P. in a Meijer parking lot and tried to speak with her. McCumber also committed conversion by attempting to steal merchandise from Macy's. Although McCumber's offenses are not particularly egregious, we are not persuaded that the nature of McCumber's offenses warrants revision of her sentence.

Character of the Offender

[11] Our analysis of the character of the offender involves a broad consideration of a defendant's qualities, including the defendant's age, criminal history, background, past rehabilitative efforts, and remorse. See Harris v. State, 165 N.E.3d 91, 100 (Ind. 2021); McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020). The significance of a criminal history in assessing a defendant's character and an appropriate sentence vary based on the “gravity, nature, and number of prior offenses as they relate to the current offense.” McElfresh v. State, 51 N.E.3d 103, 112 (Ind. 2016). “Even a minor criminal history is a poor reflection of a defendant's character.” Prince v. State, 148 N.E.3d 1171, 1174 (Ind. Ct. App. 2020).

[12] As for McCumber's character, McCumber argues that she pleaded guilty and took responsibility for her actions. McCumber had a protection order issued against her, which McCumber violated two times. McCumber also has a criminal history; the trial court noted that McCumber had “a number of convictions and a number of still open cases and bench warrants.” Tr. Vol. II p. 14. In particular, McCumber had previously been sentenced to the Department of Correction for a felony. Additionally, McCumber had two pending theft cases, Level 6 felonies, in Lake County, and a pending misdemeanor theft case in Porter County. We are not persuaded that McCumber's character warrants revision of her sentence.

[13] In summary, we cannot say McCumber's sentence of 540 days is inappropriate in light of the nature of McCumber's offenses and McCumber's character.

Conclusion

[14] McCumber's sentence was not inappropriate. Accordingly, we affirm.

[15] Affirmed.

Memorandum Decision by Judge Tavitas

Judges Crone and Bradford concur. Crone, J., and Bradford, J., concur.