Joetta S. Sells v. State of Indiana

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M. is a teenage girl born in 1998 with a partial deletion of chromosome 5. This

genetic abnormality has caused her to suffer serious but manageable mental and

physical disabilities. As of October 12, 2015, in the care of her foster mother,

M. has been “happy all the time,” learning to take care of herself and to read

and write. Tr. p. 138. However, for too many years, this was not so.

[4] M. was born the granddaughter of Steve Sells (“Steve”). M.’s mother was

Steve’s daughter, and she abandoned M. to her grandfather’s custody when M.

was about two years old. Steve and Joetta married in 2008, when M. was about

ten years old, and both Steve and Joetta were M.’s legal guardians from 2009.

[5] Steve and Joetta lived together in a house in Anderson, Indiana. M. lived with

them, as did Crystal Sells (“Crystal”), Joetta’s adult daughter, and A., the

preschool-age daughter of Amber Wise (“Wise”), for whom the Sellses also

cared. In 2010, M. began rapidly losing weight. An Indianapolis doctor

diagnosed M.’s genetic deficiency and prescribed a course of treatment and

therapy. The last time the Indianapolis doctor saw M. was in early 2012.

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[6] The next time M. saw any doctor was December 1, 2014. On that day, the

Anderson fire department was dispatched to the Sells residence after a 911

emergency call from the house. Paramedics found M. completely unresponsive

on a downstairs couch. Her face and lips were blue, her eyes were open, and

she had been covered with a filthy blanket. Her heart was beating without

producing a pulse. M. was rushed to the hospital and put under the care of a

specialized child trauma team. She had a fractured skull and feces on her feet

and under her fingernails. She was described as “severely malnourished,”

“wasted completely,” having “no reserve,” “completely depleted,” “just skin

and bones.” Tr. p. 87. Although fifteen years old, M. weighed fifty-two pounds.

The pictures taken of M. that day reveal an extremity of suffering not

adequately conveyed in writing. It would be a full two and one-half months, the

middle of February 2015, before M. displayed “really any response” to

stimulus. Tr. p. 135.

[7] A detective of the Anderson police department spoke with Steve and Joetta at

the hospital; Steve had told the responding paramedics at the house that he

thought this would be a “child protective services case.” Tr. p. 106. Officers

later went to the Sells residence and searched the house with Steve’s consent.

Upstairs, officers found a room with a clasp lock on the outside. Inside the

room was a tattered mattress, blankets, a space heater, a bowl of oatmeal, and a

bucket. The floor and the blankets were stained with M.’s blood and feces.

[8] The evidence showed that M. had been kept locked in that room, an earlier

chain lock exchanged for the clasp lock, when it was discovered that M. could

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unlock the chain lock from the inside. M. was locked in the room day and

night, being let out only, apparently irregularly, to eat and warm herself. A.,

then four years old, told officers she had seen M. sticking her fingers through

the door, trying to free herself. M. was not allowed to use the bathroom, but

had to use the bucket to relieve herself and was punished for doing so. Crystal

had seen Steve drag M. down the stairs by her hair four or five times. Wise, A.’s

mother, told officers the abuse of M. had begun in 2011 at the latest. Wise had

lived with the Sellses for two months that year. At that time, M. was kept

locked in a different room, downstairs. Wise told officers she had seen Joetta

strike M. in the face with her belt buckle, and give her urine and feces to ingest

as punishment.

[9] As a result of M.’s near death, Joetta was charged with eleven felonies and one

misdemeanor: three Level 3 felony counts of neglect of a dependent resulting in

serious bodily injury, lasting from July 2014, when Indiana’s new felony

classification system came into effect, to December 2014; one Level 3 felony

count of criminal confinement resulting in serious bodily injury over the same

period; one Class C felony count of criminal confinement of a person under

fourteen, lasting from January 2011 to December 2012; one Class C felony

count of neglect of a dependent, lasting from August 2011 to June 2014; three

Class D felony counts of neglect of a dependent, one lasting from August 2011

to June 2014, another from January 2011 to June 2014, and the last from

August 2011 to September 2011; one Class D felony count of criminal

confinement, lasting from December 2012 to June 2014; one Class D felony

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count of battery resulting in bodily injury in August 2011; and one Class A

misdemeanor count of battery by bodily waste, between August 2011 and

September 2011.

[10] On September 19, 2015, Joetta pleaded guilty “open,” without benefit of a plea

agreement with the State, to nine of the felony charges. The remaining felony

charge, Count X, the third Class D felony neglect of a dependent charge, and

the misdemeanor charge, Count XII, were dismissed by the court on the State’s

motion on October 14, 2015.

[11] At Joetta’s sentencing hearing on October 12, 2015, the court heard extensive

evidence and argument. In aggravation, the court weighed the nature and

circumstances of the years-long abuse, the presence of A. in the house at the

time, the position of trust Joetta had over M., Joetta’s attempts to shift the

blame to her husband, and the enormous harm suffered by M. In mitigation,

the court weighed Joetta’s guilty plea and complete lack of criminal history.

The court sentenced Joetta to an aggregate term of twenty-four years’

incarceration, fully executed.

[12] This appeal timely followed.

Discussion and Decision

Joetta Waived Her Double Jeopardy Claim by Pleading Guilty

[13] Joetta argues that her conviction violated the double jeopardy protections of our

state constitution. Ind. Const. Art. I § 14 (“No person shall be put in jeopardy

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twice for the same offense.”). We cannot entertain this argument, however,

because Joetta’s guilty plea forecloses it.

[14] “Defendants waive a whole panoply of rights by voluntarily pleading guilty.”

Mapp v. State, 770 N.E.2d 332, 334-35 (Ind. 2002). “One consequence of

pleading guilty is restriction of the ability to challenge the conviction on direct

appeal.” Tumulty v. State, 666 N.E. 394, 395 (Ind. 1996). This includes double

jeopardy challenges, Games v. State, 743 N.E.2d 1132, 1135 (Ind. 2001), without

exception for even “‘facially duplicative’ charges.” Mapp, 770 N.E.2d at 334.

[15] Before Joetta pleaded guilty, she watched a “rights advisement DVD.” Tr. p.

69. The video explained to her, “If you were found guilty at trial you have the

right [to] appeal your conviction to a higher [c]ourt. You have the right to be

represented by a lawyer at all stages of a criminal proceeding, including the

appeal.” Tr. p. 70. After watching the DVD, Joetta was asked by the court

whether she understood the rights summarized there. Tr. p. 74. She said she

did. Id. The court asked further whether Joetta “underst[oo]d that by pleading

guilty [she would] be giving up these rights . . . .” Id. Again, Joetta said she did.

Id.

[16] By pleading guilty, Joetta presumably received or expected to receive some

benefit.1 We are now bound to hold her to the bargain. By failing even to



1 At the least, the sentencing court gave Sells’s guilty plea “modest weight” in mitigation. Appellant’s App. p. 178.

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acknowledge the waiver issue, see Appellant’s Br. pp. 13-16, Joetta offers us no

reason to consider a different result. Joetta waived double jeopardy protection

when she pleaded guilty. Games, 743 N.E.2d at 1135.

Joetta’s Twenty-Four Year Sentence Is Not Inappropriate in Light of the Nature of Her Offenses or of Her Character

[17] Where a sentencing court exercised discretion in sentencing a defendant, even a

guilty plea does not preclude review of that sentence. Tumulty, 666 N.E.2d at

396. Joetta pleaded guilty without benefit of a sentencing recommendation

from the State. In accepting her plea, the sentencing court thus retained its full

discretion. Joetta’s sentence is therefore properly reviewable here.

[18] We may revise a lawfully imposed 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.” Ind. Appellate Rule

7(B). Joetta bears the burden of persuading us that she has been inappropriately

sentenced. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Her burden

is a heavy one. Due consideration of the trial court’s decision requires us to give

it “considerable deference,” Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015), in

view of the trial courts’ “special expertise” in the fact-intensive sentencing

decision. Scott v. State, 840 N.E.2d 376, 381 (Ind. Ct. App. 2006), trans. denied.

Such deference ordinarily prevails “unless overcome by compelling evidence

portraying [the offense and the offender] in a positive light.” Stephenson v. State,

29 N.E.3d 111, 122 (Ind. 2015).

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[19] We examine the sentence in its totality as it is actually to be served. Cardwell v.

State, 895 N.E.2d 1219, 1224 (Ind. 2008). The aggregate term of years, id., the

time suspended and executed, Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.

2010), the placement called for in the sentence, King, 894 N.E.2d at 267, and

any other penal consequences, Davidson, 926 N.E.2d at 1025, are examined in

light of the defendant’s culpability, the severity of the crime, the harm the done

to others, and any other relevant facts of the individual case. Cardwell, 895

N.E.2d at 1224. We undertake such review guided by its primary purpose of

“leaven[ing] the outliers,” that is, promoting consistency and uniformity in

sentencing by restraining extraordinarily harsh or lenient sentences. Id. at 1225.

[20] Joetta pleaded guilty to ten felonies: four Level 3 felonies, two Class C felonies,

and four Class D felonies. The court sentenced Joetta to sixteen years’

incarceration on each of the four Level 3 felonies, the statutory maximum, and

merged them: three counts of neglect of a dependent resulting in serious bodily

injury and one count of criminal confinement. Appellant’s App. p. 178. The

court further sentenced Joetta to eight years on each of the two Class C felonies,

again the statutory maximum, and merged them: one count of criminal

confinement and one count of neglect of a dependent. Id. at pp. 178-79. On

three of the four Class D felonies, the court sentenced Joetta to three years each,

again the statutory maximum, and merged them: two counts of neglect of a

dependent and one count of criminal confinement. Id. at p. 179. Finally, the

court sentenced Joetta to three years on the remaining Class D felony, again the

statutory maximum, one count of battery resulting in bodily injury. Id.

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[21] The two Class C felony sentences were ordered to run consecutively to the four

Level 3 felony sentences, and the four Class D felony sentences were ordered to

run concurrently to the two Class C felony sentences. Id. The eight-year

sentence on the merged Class C felony sentences, consecutive to the sixteen

year sentence on the merged Level 3 felony sentences, thus produced an

aggregate sentence of twenty-four years, to be fully executed. Id. This is six

years fewer than Joetta would have received had the court ordered the Class D

felony battery sentence and the remaining merged Class D felony sentences to

run consecutively, rather than concurrently, to the merged Class C felony

sentences.

[22] With due consideration of the trial court’s decision, we find nothing in Joetta’s

argument that would persuade us to revise that decision. Under the heading

“Nature of the Offense,” Joetta offers nothing more than the statutory

definitions of the crimes to which she pleaded guilty. Appellant’s Br. pp. 16-17.

She therefore fails to carry her burden on this prong of inappropriateness

review. See App. R. 46(A)(8)(a) (argument must be “supported by cogent

reasoning”).

[23] As to her character, Joetta points us to the following: at age fifty-four, she had

no prior criminal history; she was found by the presentence investigator to

present a low risk of re-offense; she suffered, and presumably continues to

suffer, from fibromyalgia (a debilitating, painful disease), osteoarthritis, and

knee pain as the result of surgery; and, she alleges, she was dominated and

misled by her husband, who prevented her from doing more for M. Appellant’s

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Br. p. 18. The sentencing court noted the first of these factors in its sentencing

order but gave it “little weight.” Appellant’s App. p. 178.

[24] Joetta offered the trial court, and offers us, a picture of herself controlled by her

illness and her husband. She testified that pain kept her from going upstairs to

M.’s room for all of 2014 and that she was shocked to see M.’s deterioration on

December 1, 2014. Joetta called 911 that day over Steve’s violent objection.

Steve apparently convinced Joetta after she fell sick in 2012 that she was no

longer M.’s legal guardian and that only M.’s legal guardian could take her to

the doctor. In the afternoon and evening, when Steve was home from work,

Joetta would sleep, relying on Steve to care for M. When Joetta tried to help or

care for M., M. would become difficult and violent and would refuse to eat.

Moreover, if Joetta “tried to get [M.] to do anything,” she testified, “there was

either something thrown at me or I was locked out of the house” by Steve. Tr.

pp. 165-66. When Joetta told Steve “[m]any times, many times” to take M. to

the doctor, she was “told to stay out of it.” Tr. p. 170. Between Steve’s abusive

domineering and her own illness, Joetta felt that she had “nowhere to turn” and

could “do nothing to stop what [wa]s happening.” Tr. p. 182. “I wish I could

have stood up more,” Joetta admitted. Tr. p. 170.

[25] The trial court was unimpressed with Joetta’s claims, and we will not reweigh

the evidence. It is indeed unbelievable that anyone living in the house with M.

could have been unaware of her extreme suffering. It is despicable to claim that

M., by refusing to eat, being difficult, or in any other way, was somehow

responsible for the horrendous living conditions imposed by Steve and Joetta.

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[26] Joetta’s professed helplessness did not prevent her from taking herself to the

doctor at least twice in 2014 or from taking A. for her yearly checkups. It did

not prevent Joetta from earning her associate’s degree through an online

university during the period of M.’s abuse, or from working on a bachelor’s

degree from the same university at the time M.’s condition was discovered by

authorities. It did not prevent her from applying for and collecting a $720

monthly Social Security disability benefit for M.’s care. It also did not prevent

her from committing the violent, nauseating acts witnessed by Wise.

[27] The trial court thought that Joetta’s “course of conduct as it relates to [M.]

[wa]s the more honest assessment of [her] character” than the assessment Joetta

offered in her own defense. Tr. pp. 215-16. Joetta has not carried her burden in

this appeal to persuade us otherwise.

[28] In light of the nature of Joetta’s offenses and her character, we cannot say that a

twenty-four-year executed sentence is inappropriate.