Tara L. Hathaway, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] While driving with her two young children, Tara Hathaway possessed cocaine and marijuana in her vehicle. Hathaway pled guilty to possession of both drugs, and the trial court sentenced Hathaway to a total of two and a half years. Hathaway now appeals, raising one issue for our review, which we revise and restate as the following two issues:

1. Whether the trial court abused its discretion in identifying mitigating and aggravating factors; and

2. Whether Hathaway's sentence is inappropriate under Indiana Appellate Rule 7(B).

[2] We affirm.

Facts and Procedural History

[3] On April 13, 2024, law enforcement officers conducted a traffic stop on Hathaway's vehicle, during which she admitted to having cocaine and marijuana. Two of Hathaway's children, ages 6 and 11, were in the vehicle at the time of the stop. Officers located the marijuana and approximately one gram of cocaine in the vehicle. The State charged Hathaway in Cause 91D01-2404-F6-000079 with possession of cocaine as a Level 6 felony ¹ and possession of marijuana as a Class B misdemeanor ² (the “Felony Cause”). While the Felony Cause was pending, Hathaway was charged in Cause 91D01-2405-CM-000352 with operating a vehicle with an alcohol concentration equivalent to 0.15 or more as a Class A misdemeanor ³ (the “Misdemeanor Cause”).

[4] On December 12, Hathaway pled guilty pursuant to a plea agreement in the Misdemeanor Cause and entered an open guilty plea to both charges in the Felony Cause. The trial court ordered that a presentence investigation report (“PSI”) be completed for the Felony Cause and set sentencing for February 2025. Since there was a plea agreement in the Misdemeanor Cause, the court proceeded to sentencing on the same day as the guilty plea. In the Misdemeanor Cause, Hathaway was ordered to complete drug screenings and an intensive outpatient program. Prior to sentencing in the Felony Cause, Hathaway tested positive three times for marijuana and once for alcohol and cocaine.

[5] In its sentencing order in the Felony Cause, the trial court identified the following as aggravating factors: “Defendant's prior juvenile and adult criminal history; Defendant's prior probation violations; Defendant's subsequent arrest [in the Misdemeanor Cause] while this case was pending; Defendant's positive drug screen results for both marijuana and cocaine while this case was pending; [and] Defendant possessing cocaine in the presence of her minor child(ren).” Appellant's App. Vol. II at 46. The trial court identified Hathaway's guilty plea and her completion of an intensive outpatient program as mitigating factors. The court sentenced Hathaway to one year served in the White County Jail, one year on work release, and six months of probation. Hathaway now appeals.

Discussion and Decision

1. The Trial Court Did Not Abuse Its Discretion in Identifying Mitigating and Aggravating Factors

[6] Hathaway contends that the trial court erred in identifying mitigating and aggravating circumstances. We review a trial court's sentencing decision for an abuse of discretion. Owen v. State, 210 N.E.3d 256, 269 (Ind. 2023) (quoting Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), as amended (July 10, 2007), decision clarified on reh'g, 875 N.E.2d 218 (Ind. 2007)). “An abuse of discretion occurs if the decision is ‘clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.’ ” Id. (quoting Anglemyer, 868 N.E.2d at 490). “A court does not abuse its discretion if the record supports its reasons for imposing a sentence and those reasons are proper as a matter of law.” Id. (citing Anglemyer, 868 N.E.2d at 490–91).

[7] There are several ways a trial court may abuse its discretion in determining a defendant's sentence, including the following: entering a sentencing statement that includes aggravating and mitigating factors that are not supported by the record, entering a sentencing statement that omits reasons that are clearly supported by the record, or entering a sentencing statement that includes reasons that are improper as a matter of law. Kayser v. State, 131 N.E.3d 717, 722 (Ind. Ct. App. 2019) (citing Anglemyer, 868 N.E.2d at 490–91); McElfresh v. State, 51 N.E.3d 103, 111 (Ind. 2016) (citing Anglemyer, 868 N.E.2d at 490–91). Here, Hathaway alleges the trial court abused its discretion by (a) failing to identify as mitigating factors that (i) the offense was non-violent and (ii) “[Hathaway's] current partner [has] no criminal history,” Appellant's Br. at 14; and (b) considering as an aggravating circumstance that Hathaway had “unadjudicated juvenile contacts” with police, id. at 12. We address each argument in turn.

a. Mitigating Factors

[8] Hathaway asserts that the trial court abused its discretion by not identifying certain mitigating factors at sentencing. Specifically, Hathaway argues for the first time on appeal that the record supports the following two mitigators: “the non-violent nature of the offense, and her current partner having no criminal history.” Appellant's Br. at 14. If “the defendant does not advance a factor to be mitigating at sentencing,” then we “will presume that the factor is not significant and the defendant is precluded from advancing it as a mitigating circumstance for the first time on appeal.” Henley v. State, 881 N.E.2d 639, 651 (Ind. 2008) (quoting Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000)). Hathaway did not argue that either of the above circumstances was mitigating in the sentencing hearing. Accordingly, Hathaway waived this argument for our review.

b. Aggravating Factors

[9] Hathaway also argues that the trial court abused its discretion by identifying improper aggravating circumstances. She contends that the trial court erred in considering as aggravators her “unadjudicated juvenile contacts” with the law. Appellant's Br. at 12. At the sentencing hearing, the trial court considered Hathaway's criminal history as a whole to be aggravating, which included (1) “two [ ] juvenile detentions” and one juvenile adjudication in addition to “five [ ] convictions as an adult, not including this instant case”; (2) “two [ ] petitions to revoke” her criminal probation; and (3) Hathaway's “arrest and conviction” in the Misdemeanor Cause while the Felony Cause was pending, as well her failed drug screens. Tr. Vol. II at 37. The trial court's sentencing order referred generally to “[Hathaway's] prior juvenile and adult criminal history” as an aggravating factor. Appellant's App. Vol. II at 54.

[10] “When a juvenile proceeding ends without a disposition, the mere fact that a petition was filed alleging delinquency does not suffice as proof of a criminal history.” Day v. State, 560 N.E.2d 641, 643 (Ind. 1990) (emphasis added). However, the trial court here did not rely on Hathaway's juvenile detentions alone to establish criminal history; rather, the court used Hathaway's entire juvenile record, in combination with her adult criminal record, to establish Hathaway's continued, undeterred pattern of police contact. “[A]n arrest record, especially a lengthy one, may indicate that a defendant has not been deterred from criminal activity even after extensive contact with the criminal justice system.” Vermillion v. State, 978 N.E.2d 459, 468 (Ind. Ct. App. 2012) (citing Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005)). Since the trial court here considered Hathaway's detention in context of her overall criminal history, including five prior adult convictions, we conclude there was no error. Accordingly, the trial court did not err in identifying aggravating circumstances.

2. Hathaway's Sentence Is Not Inappropriate Under Appellate Rule 7(B)

[11] Hathaway next argues her sentence is inappropriate under Appellate Rule 7(B) and should be revised. The Indiana Constitution authorizes us to independently review and revise a trial court's sentencing decision. Russell, 234 N.E.3d at 855-56 (citing Ind. Const. art. 7, §§ 4, 6; Jackson v. State, 145 N.E.3d 783, 784 (Ind. 2020)). That authority is implemented through Appellate Rule 7(B), which permits us to revise a sentence if, “after due consideration of the trial court's decision, [we] find[ ] that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Konkle v. State, 253 N.E.3d 1068, 1092 (Ind. 2025) (quoting McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020)).

[12] Our Supreme Court has explained our role under Appellate Rule 7(B) as follows:

“[O]ur constitutional authority to review and revise sentences boils down to our collective sense of what is appropriate,” Cramer [v. State], 240 N.E.3d [693,] 698 [(Ind. 2024)] (quoting Taylor v. State, 86 N.E.3d 157, 165 (Ind. 2017)), an act that, importantly, is reserved for “exceptional” cases, id. (citing Gibson v. State, 43 N.E.3d 231, 241 (Ind. 2015)). Determining a sentence's appropriateness thus “turns on our sense of 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.” McCain, 148 N.E.3d at 985.

Konkle, 253 N.E.3d at 1092.

[13] Additionally, the defendant bears the burden of proving that “his or her sentence has met the inappropriateness standard of review.” Konkle, 253 N.E.3d at 1092 (quoting Cramer, 240 N.E.3d at 698). And because sentencing “ ‘is principally a discretionary function in which the trial court's judgment should receive considerable deference,’ a trial court's sentencing decision will generally prevail ‘unless overcome by compelling evidence portraying in a positive light the nature of the offense ․ and the defendant's character.’ ” Id. (alteration omitted) (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)).

[14] A trial judge may impose any sentence within the statutory range without regard to the existence of aggravating or mitigating factors. Anglemyer, 868 N.E.2d at 489. When considering the nature of the offense, we start with the advisory sentence. Brown, 10 N.E.3d at 4 (citing Anglemyer, 868 N.E.2d at 494). Here, Hathaway was convicted of and sentenced on one count each of possession of cocaine as a Level 6 felony and possession of marijuana as a Class B misdemeanor. “A person who commits a Level 6 felony ․ shall be imprisoned for a fixed term of between six (6) months and two and one-half (2 1/212) years, with the advisory sentence being one (1) year.” Ind. Code § 35-50-2-7(b) (emphasis added). On her possession of cocaine conviction, the trial court sentenced Hathaway to 2 years of incarceration. “A person who commits a Class B misdemeanor shall be imprisoned for a fixed term of not more than one hundred eighty (180) days[.]” I.C. § 35-50-3-3. On her possession of marijuana conviction, the trial court sentenced Hathaway to six months of probation. In total, the trial court sentenced Hathaway to two and a half years with one year executed at the Indiana Department of Correction, one year executed on work release, and six months suspended to probation.

[15] Where, as here, the trial court deviated from the advisory sentence, one factor we consider is “whether there is anything more or less egregious about the offense committed by the defendant that makes it different from the ‘typical’ offense accounted for by the legislature when it set the advisory sentence.” T.A.D.W. v. State, 51 N.E.3d 1205, 1211 (Ind. Ct. App. 2016) (quoting Holloway v. State, 950 N.E.2d 803, 806–07 (Ind. Ct. App. 2011)), as amended (May 26, 2023). We also consider whether the offense was “accompanied by restraint, regard, and lack of brutality.” Konkle, 253 N.E.3d at 1093 (quoting Stephenson, 29 N.E.3d at 122).

[16] Hathaway possessed illicit substances within reach of her young children. Possession of illicit drugs in the presence of young children presents an inherent danger to their health and safety. See Marksberry v. State, 185 N.E.3d 437, 443 (Ind. Ct. App. 2022) (quoting White v. State, 547 N.E.2d 831, 836 (Ind. 1989)) (“[T]he knowing exposure of a dependent to an environment of illegal drug use poses an actual and appreciable danger to that dependent.”). We therefore cannot say that there is anything less egregious concerning Hathaway's actions that would weigh in favor of revising her sentence.

[17] In considering the character of the offender, “we engage in a broad consideration of a defendant's qualities,” T.A.D.W., 51 N.E.3d at 1211 (citing Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other grounds on reh'g), including whether the defendant has “substantial virtuous traits or persistent examples of good character,” Konkle, 253 N.E.3d at 1093 (quoting Stephenson, 29 N.E.3d at 122). Hathaway argues that her childhood trauma weighs in favor of finding her sentence inappropriate. It is generally true that childhood trauma may “weigh in favor of a lesser sentence.” State v. Stidham, 157 N.E.3d 1185, 1196 (Ind. 2020) (quoting Mullins v. State, 148 N.E.3d 986, 987 (Ind. 2020)). However, Hathaway's difficult childhood does not excuse her subsequent criminal history. Cf. Oberhansley v. State, 208 N.E.3d 1261 (Ind. 2023) (quoting Wright v. State, 168 N.E.3d 244, 269 (Ind. 2021)) (“[E]vidence of a difficult childhood is entitled to little, if any, mitigating weight.”). Hathaway has an extensive criminal history which weighs significantly against revising the sentence. “When considering a defendant's character, their criminal history is relevant.” Hancz-Barron v. State, 235 N.E.3d 1237, 1249 (Ind. 2024) (citing Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013)). Hathaway has five prior convictions, including one felony conviction for possession of methamphetamine. While the Felony Cause was pending, Hathaway was arrested, charged, and convicted in the Misdemeanor Cause. Hathaway also tested positive for cocaine and marijuana following her guilty plea in the Felony Cause. Additionally, while it is significant that Hathaway completed the intensive outpatient program prior to sentencing, it is important to note her participation in this program was mandatory following her conviction in the Misdemeanor Cause. Based on the nature of Hathaway's offense and her history of criminal behavior, we cannot say that Hathaway has produced compelling evidence demonstrating that the nature of her offense or her character renders her sentence inappropriate.

Conclusion

[18] In sum, the trial court did not abuse its discretion when identifying mitigating and aggravating factors at sentencing, and Hathaway's sentence is not inappropriate under Appellate Rule 7(B). We therefore affirm Hathaway's sentence.

[19] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-48-4-6(a).

2.   I.C § 35-48-4-11(a)(1).

3.   I.C § 9-30-5-1(b).

Felix, Judge.

Foley, J., and Scheele, J., concur.