Lisa Livingston, Appellant (Defendant below), v. State of Indiana, Appellee (Plaintiff below).
Supreme Court Case No. 18S-CR-623
Indiana Supreme Court
December 28, 2018
Appeal from the Orange Circuit Court, No. 59C01-1308-FA-546, The Honorable Steven L. Owen, Judge. On Petition to Transfer from the Indiana Court of Appeals, No. 18A-CR-716.
Decided: December 28, 2018
Per Curiam Opinion
Chief Justice Rush, and Justices David, Massa, and Goff concur.
Justice Slaughter dissents.
Without a plea agreement, Lisa Livingston pled guilty to multiple drug charges and admitted to being a habitual substance offender. The trial court sentenced Livingston to an aggregate sentence of thirty years to be served in the Indiana Department of Correction. Finding this to be a rare and exceptional case, we grant Livingston‘s petition to transfer and, pursuant to Appellate Rule 7(B), reduce Livingston‘s sentence to twenty-three years with the time remaining to be served in community corrections.
In August 2013, police officers received information that Livingston was manufacturing and dealing methamphetamine. Officer Andry was familiar with Livingston and drove to her home. Andry was in the process of securing a search warrant when Livingston arrived. She was cooperative. Police recovered several baggies of methamphetamine totaling 3.35 grams, one baggie of cocaine weighing 1.89 grams,1 and items known to be used in manufacturing methamphetamine.
Livingston was charged in the Orange Circuit Court with two Class A felony counts of dealing in methamphetamine; one Class C felony count of possession of methamphetamine; and two Class D felony counts, possession of cocaine and possession of two or more chemical reagents or precursors with the intent to manufacture a controlled substance. (Appellant‘s App. Vol. II, pp. 18-19.) The State also alleged Livingston is a habitual substance offender.
In November 2013, Livingston posted a $75,000 property bond and was released on the condition she reside at Bliss House, a substance abuse recovery home. Over the next four years, Livingston filed ten motions to continue her trial. The State filed no objections (Trans. Pet. p. 9), and the court granted each motion. During these four years, Livingston accomplished much.
Livingston lived in Bliss House for one year and then moved to its transitional house for two years. She later served as chairperson of the Bliss House alumni and
In early 2017, Livingston asked to be placed in a pre-trial detention program, which the court denied. Livingston voluntarily placed herself in a program with Floyd County Community Corrections. She reported in person two times per week and took random drug screens, all of which were negative.
On October 30, 2017, Livingston appeared in court and, without a plea agreement, pled guilty to all charges and admitted to being a habitual substance offender.
On March 12, 2018, the court held Livingston‘s sentencing hearing. Livingston asked the court to allow her to serve her sentence in community corrections. The State opposed placement in community corrections but indicated that statutes would permit it. (Tr. pp. 24-25, 94.) Andry, now retired after thirty years as a police officer, testified the more he has been around Livingston the more “impressed” and “confident” he is that “what she is doing [with BreakAway] is important work.” (Tr. p. 39.) Andry has seen nothing indicating Livingston will not “follow through with what she‘s started and what she‘s been doing” if sentenced to serve her time in community corrections. (Tr. p. 42.) “I don‘t have a crystal ball, but I‘ve never, I guess staked my reputation on anybody before for that, so that‘s, that‘s the feeling I have about it[.]” (Tr. pp. 42-43.)
Janeen Niehauss supervised Livingston‘s voluntary participation in the day reporting program run by Floyd County Community Corrections. At the time, Livingston was residing in Floyd County at BreakAway home, serving as the night manager. Niehauss, a program manager for day reporting, testified that Livingston had been “completely compliant” for 381 days and met all the requirements for the day reporting program. (Tr. pp. 66-67.) Niehauss further testified that the community corrections program is willing to take and supervise Livingston for the duration of whatever sentence the court imposed. (Tr. p. 75.) Numerous letters written by family, friends, and community members in support of Livingston were also admitted into evidence.
The trial court sentenced Livingston to an aggregate term of thirty years to be served in the Department of Correction. The Court of Appeals affirmed, finding no abuse of discretion in the sentencing decision and declining to revise Livingston‘s sentence. Livingston v. State, No. 18A-CR-716, 2018 WL 4782281 (Ind. Ct. App. Oct. 4, 2018).
The
Although the offenses for which Livingston was convicted are serious, she fully cooperated with police and pled guilty to all charges without the benefit of a plea agreement. And while Livingston committed the offenses in 2013, effective July 1, 2014, the legislature has instructed courts to construe the criminal code “in accordance with its general purposes, to . . . reduce crime by promoting the use of evidence based best practices for rehabilitation of offenders in a community setting” and “keep dangerous prisoners in prison by avoiding the use of scarce prison space for nonviolent offenders.”
Because the crimes for which Livingston pled guilty occurred in 2013, the mandatory minimum sentence she may receive is twenty-three years. See
We remand to the trial court to issue a revised sentencing order consistent with this opinion. We summarily affirm the remainder of the Court of Appeals decision. See Ind. Appellate Rule 58(A)(2).
Rush, C.J., and David, Massa, and Goff, JJ., concur.
Slaughter, J., dissents, believing that transfer should be denied.
ATTORNEYS FOR APPELLANT
Stacy R. Uliana
Bargersville, Indiana
Jennifer H. Culotta
New Albany, Indiana
ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana