LAVI v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Tiffany M. Lavi was charged with and pleaded guilty to possession of methamphetamine, as a Level 4 felony,¹ and possession of paraphernalia, as a Class C misdemeanor.² Lavi was accepted into Allen County's Drug Court Diversion Program, the successful completion of which would have resulted in the charges being dismissed. But Lavi's participation was terminated after she failed to report for drug screens and tested positive for illegal substances, and the trial court sentenced her to six years executed in the Department of Correction (“DOC”). On appeal, Lavi argues that this sentence is inappropriate in light of the nature of the offenses and her character. We affirm.

Facts and Procedural History

[2] On the night of June 3, 2024, Fort Wayne Police Officer M. Innis was on patrol when he was advised by another officer that the officer had “witnessed what appeared to be a hand-to-hand exchange” involving a male driving a black Pontiac. Appellant's App. Vol. 2 at 14.³ Officer Innis followed the Pontiac, which attempted to elude him. Officer Innis activated his emergency lights and initiated a traffic stop. Larry Mast was the driver of the Pontiac, and Lavi was in the front passenger seat. During the investigation, a black bag containing what was later determined to be 10.9 grams of methamphetamine, a glass smoking device, and a digital scale was found within seventy-five feet of the stop. Officer Innis Mirandized both Mast and Lavi. Lavi admitted that the bag belonged to her and that she “tossed [it] from the vehicle so she would not get caught with it.” Id.

[3] The next day, the State charged Lavi with possession of methamphetamine, as a Level 4 felony, and possession of paraphernalia, as a Class C misdemeanor. In early July, Lavi agreed to plead guilty as charged. The trial court took the plea under advisement and placed Lavi in the Drug Court Diversion Program. The State agreed to move to dismiss the charges against Lavi upon her successful completion of all program requirements.

[4] Lavi entered the program on July 8 and failed to appear in court on July 22, which she claimed was due to a lack of transportation. On July 30, Lavi was transported to Park Center Addictions Residential, from which she was unsuccessfully discharged on August 6. On August 26, the State filed a petition to terminate Lavi's Drug Court participation, alleging that she had violated the terms and conditions of the program by testing positive for amphetamine and methamphetamine on August 12 and 16 and by failing to report for drug screens on August 8, 9, 10, and 21. Lavi admitted to the allegations at a hearing.⁴ The trial court revoked her Drug Court placement and set a sentencing hearing for September 17.

[5] At the hearing, the trial court found Lavi guilty as charged. The court found as aggravating circumstances Lavi's “contact with the juvenile system and failed efforts at rehabilitation in the Drug Court Program.” Tr. Vol. 2 at 8. The court remarked,

This is your first foray into adult court with a Level 4 felony, which is a pretty serious offense, Ms. Lavi. [Y]ou come to the Court looking at a minimum two years in prison to a maximum 12 years in prison with an advisory sentence of six years in prison. And you thumbed your nose at Drug Court the entire time you were with us and that's really unfortunate. [Y]ou were absolutely not ready to do the work that is required in Drug Court. You were absolutely not prepared to change your behavior, modify your use.

Id. at 8-9. The court found as mitigating circumstances Lavi's “plea of guilty and acceptance of responsibility and the remorse that [she] expressed here in court, which ․ I think is genuine remorse, but I think you're more sorry for where you found yourself, rather than sorry for what you've done.” Id. at 9. The court then imposed concurrent sentences of six years executed in the DOC on the felony conviction and sixty days executed on the misdemeanor conviction. Lavi now appeals.

Discussion and Decision

[6] Lavi asks us to reduce her sentence pursuant to Indiana Appellate Rule 7(B), which provides that this “Court may 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.” Our Supreme Court has explained,

The principal role of appellate review should be to attempt to leaven the outliers ․ but not achieve a perceived “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007), decision clarified on reh'g, 875 N.E.2d 218 (Ind. 2007).

Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).

[7] Indiana's flexible sentencing scheme allows trial courts to tailor an appropriate sentence to the circumstances presented, and the trial court's judgment “should receive considerable deference.” Cardwell, 895 N.E.2d at 1222. “[W]hether we regard a sentence as inappropriate at the end of the day turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other facts that come to light in a given case.” Id. at 1224. The question is not whether another sentence is more appropriate, but rather whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[8] “Ultimately the length of the aggregate sentence and how it is to be served are the issues that matter.” Cardwell, 895 N.E.2d at 1224. “The advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). The sentencing range for a Level 4 felony is two years to twelve years, with an advisory sentence of six years. Ind. Code § 35-50-2-5.5.⁵ Here, Lavi received the advisory sentence of six years, fully executed in the DOC. “A defendant who receives an advisory sentence has a particularly heavy burden to prove it inappropriate under Appellate Rule 7(B).” Kincaid v. State, 171 N.E.3d 1036, 1042 (Ind. Ct. App. 2021), trans. denied.

[9] As for the nature of the offense, Lavi observes that the quantity of methamphetamine that she possessed was only slightly over the ten-gram threshold for a Level 4 felony. See I.C. § 35-48-4-6.1(c)(1) (providing that offense is a Level 4 felony if “the amount of the drug involved is at least ten (10) but less than twenty-eight (28) grams”). She further observes that she “was in the passenger seat of the vehicle” and thus was not “driving under the influence of drugs.” Appellant's Br. at 14. In response, the State points out that Lavi tossed the bag containing the methamphetamine out the vehicle's window, which “would likely constitute obstruction of justice,”⁶ and that “[h]er action of throwing the methamphetamine out the window could also have endangered others in the public had they found and been exposed to the illegal drugs, whether Lavi was driving or not, had Officer Innis not discovered the black bag.” Appellee's Br. at 11, 12. Although the nature of the offense is not particularly egregious, Lavi has failed to establish that it merits a reduction below the advisory sentence.

[10] Regarding her character, Lavi notes that this is her first criminal conviction and that she has no prior juvenile adjudications or misdemeanor convictions. But Lavi, who was born in April 2002, did have juvenile referrals for disorderly conduct (once) and leaving home without permission of parent, guardian, or custodian (twice). And she admitted to having consumed alcohol since age eighteen, marijuana since age eleven, and methamphetamine since age fifteen. This case is not Lavi's first encounter with the judicial system, and although she initially took responsibility for her actions by pleading guilty, she quickly and repeatedly violated the terms and conditions of her Drug Court placement by testing positive for illegal substances and failing to report for drug screens. Lavi had an opportunity to obtain treatment for her substance abuse and have the charges against her dismissed, but she “thumbed [her] nose at Drug Court the entire time[,]” as the trial court put it, and demonstrated that she was “absolutely not prepared to change [her] behavior, modify [her] use.” Tr. Vol. 2 at 9. Lavi's inability to obey the law notwithstanding powerful incentives and close court supervision militates against a reduction of her sentence or a less restrictive placement, such as probation or community corrections.⁷

[11] In sum, Lavi has failed to carry the burden of persuading us that her advisory sentence is inappropriate in light of the nature of the offenses and her character. Therefore, we affirm her sentence.

[12] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-48-4-6.1(a), (c)(1).

2.   I.C. § 35-48-4-8.3(b)(1).

3.   Our factual recitation, as well as those of both parties, is based in part on the probable cause affidavit, which was incorporated by reference into Lavi's presentence investigation report (“PSI”). At sentencing, Lavi represented that the PSI was accurate in all relevant respects.

4.   The PSI indicates that Lavi had also tested positive for benzodiazepine, amphetamine, and methamphetamine on July 10 and for amphetamine, methamphetamine, and THC on July 16.

5.   The maximum sentence for a Class C misdemeanor is sixty days. I.C. § 35-50-3-4. Because Lavi's sentences are concurrent, we do not address the appropriateness of her sentence for her misdemeanor conviction.

6.   See I.C. § 35-44.1-2-2(a)(3) (“A person who ․ alters, damages, or removes any record, document, or thing, with intent to prevent it from being produced or used as evidence in any legal proceeding or administrative or criminal investigation ․ commits obstruction of justice, a Level 6 felony ․”).

7.   Lavi asserts that her “two-year-old son remains in foster care due to her prison sentence” and that the Department of Child Services’ reunification plan “has been derailed for the next six years as [Lavi] cannot participate in D.C.S. services while in prison.” Appellant's Br. at 14, 15. To the extent that this could be considered relevant to Lavi's character, we agree with the State that “[t]his assertion ignores the fact that Lavi derailed any reunification plan through her own conduct.” Appellee's Br. at 14.

Bailey, Judge.

Vaidik, J., and DeBoer, J., concur.