Heather N. Burke, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Heather Burke pled guilty to possession of methamphetamine. Based on her criminal history and failures to appear, the trial court sentenced Burke to two years of incarceration. Burke now appeals, raising one issue for our review: Whether Burke's sentence is inappropriate under Indiana Appellate Rule 7(B).

[2] We affirm.

Facts and Procedural History

[3] On October 23, 2023, in Hartford City, Indiana, Blackford County Sheriff's Department Sergeant Walker Strait conducted a traffic stop of a vehicle in which Burke was a passenger. Sergeant Strait had K9 Brit conduct an “open air sniff” of the vehicle, and she alerted to the presence of illegal substances. Appellant's App. Vol. II at 15.¹ Sergeant Strait searched the vehicle and found a clear “plastic lid containing a white crystal substance” in Burke's purse, which tested presumptively positive for methamphetamine, and a hypodermic syringe under her seat. Id. Sergeant Strait also observed numerous marks on Burke's arms that he believed were from intravenous drug use.

[4] The State charged Burke with possession of methamphetamine as a Level 6 felony ² and unlawful possession of a syringe as a Level 6 felony ³ . After failing to appear at two hearings in this cause, Burke pled guilty to the methamphetamine charge pursuant to an open plea agreement in exchange for the State dismissing the syringe charge. The trial court accepted the plea agreement and after a sentencing hearing, sentenced Burke to two years at the Indiana Department of Correction (“DOC”) and ordered her to complete the Recovery While Incarcerated program. This appeal ensued.

Discussion and Decision

Burke's Sentence Is Not Inappropriate under Appellate Rule 7(B)

[5] Burke 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. Tillett v. State, 278 N.E.3d 359, 366 (Ind. 2026) (citing Ind. Const. art. 7, §§ 4, 6). 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 conclude “that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Id. (quoting Ind. Appellate Rule 7(B)).

[6] The defendant bears the burden of producing compelling evidence that “his or her sentence has met the inappropriateness standard of review.” Tillett, 278 N.E.3d at 366 (alteration omitted) (quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)). A defendant “need not ‘necessarily prove’ ” that the sentence is inappropriate based on both the nature of his offense and his character, Lane v. State, 232 N.E.3d 119, 126 (Ind. 2024) (emphasis in original) (quoting Connor v. State, 58 N.E.3d 215, 219 (Ind. Ct. App. 2016)), but “to the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief,” id. at 127 (citing Connor, 58 N.E.3d at 220).

[7] Whether a sentence is inappropriate “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.” Tillett, 278 N.E.3d at 366 (quoting McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020)). “We generally defer to the trial court's decision,” id. (citing Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012)), but “we are not limited to the mitigators and aggravators found by the trial court,” Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014). “Our role is to ‘leaven the outliers,’ which means we exercise our authority only in ‘exceptional cases.’ ” Tillett, 278 N.E.3d at 366 (quoting Russell v. State, 234 N.E.3d 829, 856 (Ind.), cert. denied, 145 S. Ct. 424 (2024)).

[8] A trial judge may impose any sentence within the statutory range without regard to the existence of aggravating or mitigating factors. Anglemyer v. State, 868 N.E.2d 482, 489 (Ind. 2007). 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, Burke was convicted of and sentenced on one count of possession of methamphetamine as a Level 6 felony. “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 (21/212) years, with the advisory sentence being one (1) year.” Ind. Code § 35-50-2-7(b) (emphasis added). On her Level 6 felony conviction, the trial court sentenced Burke to two years at the DOC.

[9] 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 v. State, 253 N.E.3d 1068, 1093 (Ind. 2025) (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)).

[10] Here, Burke had methamphetamine in her purse and a syringe within arm's reach. Burke argues that her offense was not more egregious than a typical possession offense as a Level 6 felony because (1) the offense was non-violent; (2) she did not resist arrest; (3) the record does not suggest that she was under the influence at the time of the arrest, and (4) the offense was merely a “personal-use substance abuse issue.” Appellant's Br. at 13. The Indiana Supreme Court has stated that “possessing even small amounts of drugs threatens society.” State v. Timbs, 169 N.E.3d 361, 373 (Ind. 2021) (citing United States v. Green, 532 F.3d 538, 549 (6th Cir. 2008); Taylor v. Lewis, 460 F.3d 1093, 1099 (9th Cir. 2006)). Otherwise, we do not disagree that there were no facts that differentiate this offense from any other similar offense. Because of this, in the absence of negative character evidence, the trial court's sentencing decision would appropriately be near the advisory sentence.

[11] 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).

[12] Burke has an extensive criminal history. Burke has seven prior Indiana convictions, including two felony convictions and five misdemeanor convictions. Additionally, Burke has arrests and convictions in Florida. Despite completion of a rehabilitative drug court in Florida, Burke continued to use controlled substances. Relatedly, Burke's daughter, born while this cause was pending, was removed from Burke's care by the Indiana Department of Child Services after she tested positive for controlled substances at birth. And, while this case was pending, Burke relinquished her parental rights to an earlier-born child.

[13] In August 2024, Burke failed to appear in court for a pretrial conference, and in September 2025, she failed to appear at a change of plea hearing, which resulted in a warrant for her arrest. Burke was aware of the warrant but failed to turn herself in, instead choosing to continue to consume illegal drugs. Burke has also failed to appear at many hearings in separate causes. Burke's failure to attend court hearings shows a willful disregard for the court's time and resources, which does not cast her character in a good light

[14] Burke nevertheless argues that her sentence is inappropriate in light of the loss of her mother in 2019, her successful completion of drug court in 2017, and her education. None of these circumstances persuade us of Burke's good character in light of her extensive criminal history and repeated noncompliance with court orders.

[15] Based on the nature of Burke's offense and her history of criminal behavior, we cannot say that Burke has produced compelling evidence demonstrating that the nature of her offense or her character renders her sentence inappropriate. Burke's sentence is not inappropriate under Appellate Rule 7(B). We therefore affirm Burke's sentence.

[16] Affirmed.

FOOTNOTES

1.   Burke did not request the guilty plea hearing transcript for our review, and in their appellate briefing, both parties cite to the probable cause affidavit for the facts underlying Burke's conviction. We likewise rely on the probable cause affidavit.

2.   Ind. Code § 35-48-4-6.1(a).

3.   I.C. § 16-42-19-18(b).

Felix, Judge.

Tavitas, C.J., and Bradford, J., concur.