Aaron M. Graves v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 11, 2019
• Docket: 18A-CR-1937
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 11 2019, 10:23 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark A. Thoma Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana Leonard, Hammond, Thoma & Terrill Monika Prekopa Talbot Fort Wayne, Indiana Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Aaron M. Graves, January 11, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1937 v. Appeal from the Allen Superior Court State of Indiana, The Hon. Wendy W. Davis, Judge Appellee-Plaintiff. Trial Court Cause No. 02D04-1701-F6-49

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1937 | January 11, 2019 Page 1 of 10 Case Summary [1] In February of 2017, Aaron Graves consumed a large amount of alcohol, got

behind the wheel of his vehicle, and caused another driver to collide with him

when Graves suddenly turned in front of him. Although Graves attempted to

flee the scene of the accident on foot, he was arrested and his blood alcohol

concentration (“BAC”) was determined to be 0.348 g/ml. Graves (1) was

convicted of obstruction of justice, leaving the scene of an accident, and

operating a vehicle while intoxicated (“OWI”) with a prior conviction; (2)

stipulated to being a habitual vehicular substance offender; and (3) was

sentenced to an aggregate term of ten years of incarceration, with four years

suspended and one year of probation. Graves contends that the trial court

abused its discretion in sentencing him, his sentence is inappropriately harsh,

and his sentence is disproportionate to the nature of his offense. Because we

disagree, we affirm.

Facts and Procedural History [2] On the evening of January 14, 2017, Frederick Wricks was driving in Fort

Wayne when Graves suddenly turned in front of him, causing Wricks’s vehicle

to collide with Graves’s. A man who lived nearby ran to Graves’s smoking

vehicle, unbuckled his seatbelt, and pulled him out. Graves took a bottle of

dark liquor from the passenger’s seat and began to leave. When the man told

Graves to stop, Graves walked away. Graves still had the liquor bottle, and his

breath smelled of alcohol. As police approached, Graves went behind a tree,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1937 | January 11, 2019 Page 2 of 10 took a “swig” from the bottle, and threw it away. Tr. Vol. I p. 210. After

Graves’s arrest, his blood was drawn and his BAC was determined to be 0.348

g/ml. It was also determined that 260 ml of liquor was missing from the bottle

Graves threw away and if that was all Graves had had to drink that day, his

BAC could have been no greater than 0.14 g/ml.

[3] On January 18, 2017, the State charged Graves with Level 6 felony obstruction

of justice, Level 6 felony OWI with a prior conviction, Class A misdemeanor

OWI endangering a person, and Class A misdemeanor leaving the scene of an

accident, also alleging him to be a habitual vehicular substance offender. On

July 18, 2018, a jury found Graves guilty as charged and he stipulated to all of

the enhancements. On July 25, 2018, the trial court sentenced Graves to

concurrent terms of two years of incarceration for obstruction of justice, one

year for leaving the scene of an accident, and two years for OWI with a prior

conviction enhanced to ten years by virtue of Graves’s habitual vehicular

substance offender status. The trial court suspended four years of Graves’s

aggregate ten-year sentence and ordered one of those years to be spent on

probation.

Discussion and Decision I. Whether the Trial Court Abused its Discretion in Sentencing Graves [4] Under our current sentencing scheme, “the trial court must enter a statement

including reasonably detailed reasons or circumstances for imposing a

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1937 | January 11, 2019 Page 3 of 10 particular sentence.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),

modified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2008). We review the

sentence for an abuse of discretion. Id. An abuse of discretion occurs if “the

decision is clearly against the logic and effect of the facts and circumstances.”

Id. A trial court abuses its discretion if it (1) fails “to enter a sentencing

statement at all[,]” (2) enters “a sentencing statement that explains reasons for

imposing a sentence—including a finding of aggravating and mitigating factors

if any—but the record does not support the reasons,” (3) enters a sentencing

statement that “omits reasons that are clearly supported by the record and

advanced for consideration,” or (4) considers reasons that “are improper as a

matter of law.” Id. at 490–91. If the trial court has abused its discretion, we

will remand for resentencing “if we cannot say with confidence that the trial

court would have imposed the same sentence had it properly considered

reasons that enjoy support in the record.” Id. at 491. However, the relative

weight or value assignable to reasons properly found, or to those which should

have been found, is not subject to review for abuse of discretion. Id.

[5] In sentencing Graves, the trial court found, as aggravating circumstances, his

criminal history, that prior attempts at rehabilitation had failed, that Graves

was on probation when he committed his offenses in this case, and that he was

evaluated and found to pose a very high risk of recidivism. The trial court

found Graves’s acceptance of responsibility (shown by stipulating to the

enhancements) and his two minor children to be mitigating.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1937 | January 11, 2019 Page 4 of 10 [6] Graves contends that the trial court failed to properly consider his claim that he

had had a three-year period of sobriety and professional growth prior to this

case. Even if we assume that this is true, Graves’s period of sobriety has

obviously ended. Although Graves acknowledges that he has a substance-abuse

problem, he has not taken the steps necessary to permanently address it. Under

the circumstances, the trial court did not abuse its discretion in refusing to find

Graves’s substance abuse and/or period of sobriety to be mitigating. See, e.g.,

Bryant v. State, 802 N.E.2d 486, 501 (Ind. Ct. App. 2004) (“Moreover, the

record demonstrates that Bryant was aware of his drug and alcohol problem,

yet he had not taken any positive steps to treat his addiction. Thus, the trial

court did not err in determining that his substance abuse was an aggravating

factor.” (record citation omitted)), trans. denied.

[7] Graves also contends that the trial court did not assign sufficient mitigating

weight to his acceptance of responsibility. Pursuant to Anglemyer, however, this

is no longer a cognizable claim. See Anglemyer, 868 N.E.2d at 491 (concluding

that the relative weight or value assignable to reasons properly found, or to

those which should have been found, is not subject to review for abuse of

discretion). Moreover, we treat the consideration of remorse or acceptance of

responsibility as a credibility determination best left to the sentencing court. See

Pickens v. State, 767 N.E.2d 530, 534–35 (Ind. 2002). Graves has failed to

establish an abuse of discretion.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1937 | January 11, 2019 Page 5 of 10 II. Whether Graves’s Sentence is Inappropriate [8] We “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.” Ind.

Appellate Rule 7(B). “Although appellate review of sentences must give due

consideration to the trial court’s sentence because of the special expertise of the

trial bench in making sentencing decisions, Appellate Rule 7(B) is an

authorization to revise sentences when certain broad conditions are satisfied.”

Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations

and quotation marks omitted). “[W]hether we regard a sentence as appropriate

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 factors that

come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

2008). In addition to the “due consideration” we are required to give to the

trial court’s sentencing decision, “we understand and recognize the unique

perspective a trial court brings to its sentencing decisions.” Rutherford v. State,

866 N.E.2d 867, 873 (Ind. Ct. App. 2007).

[9] The nature of Graves’s offenses is egregious. Graves did not have “one too

many” on February 14, 2017: When Graves’s blood was drawn at the jail, his

BAC was 0.348 g/ml. Toxicologist Sheila Arnold testified that a male Graves’s

size would have to consume twenty-one ounces of eighty-proof liquor to

achieve a BAC of 0.329 g/ml, a BAC lower than Graves’s. Even if we take

away the liquor Graves drank after the accident (assuming the bottle was full

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1937 | January 11, 2019 Page 6 of 10 beforehand), that would only account for, at most, 0.14 of the 0.348 g/ml. No

matter how one looks at it, Graves must have consumed a prodigious amount

of alcohol prior to the accident to achieve a BAC of 0.348 g/ml, which is more

than four times the legal limit for operating a motor vehicle. See Ind. Code § 9-

30-5-4. Moreover, the injuries Graves caused were not insignificant and

certainly could have been much worse. Wricks testified that he had bruising on

his right biceps and “a banged up knee[,]” injuries that rendered him unable to

work for approximately one month. Tr. Vol. I p. 182. In addition, not only did

Graves leave the scene of the accident, he left without approaching Wricks to

identify himself or determine whether he needed help. The nature of Graves’s

offenses justifies his sentence.

[10] As for Graves’s character, it is revealed by his criminal record, which even he

acknowledges is extensive. Graves, born in 1980, has misdemeanor convictions

that include OWI, leaving the scene of a property-damage accident, three

counts of battery resulting in bodily injury, possession of marijuana, operating

while suspended, failure to stop after an accident causing non-vehicle damage,

two counts of operating a vehicle as a habitual traffic violator, invasion of

privacy, and OWI endangering a person. Graves has felony convictions for

OWI and operating a vehicle as a habitual traffic violator. In addition, Graves

has had his sentences modified three times and revoked twice, has had the

terms of his probation modified once, was on probation when he committed his

offenses in this case, and had pending charges of Level 6 felony residential entry

and Class A misdemeanor criminal trespass as of sentencing. Despite his

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1937 | January 11, 2019 Page 7 of 10 frequent brushes with the law, which have resulted in multiple periods of

incarceration, Graves has not chosen to reform himself. In light of the nature of

his offenses and his character, Graves has failed to establish that his six-year

executed sentence followed by one year of probation is inappropriate.

III. Whether Graves’s Sentence is Disproportionate [11] Article 1, section 16 of the Indiana Constitution provides, in part, that “[a]ll

penalties shall be proportioned to the nature of the offense[,]” requiring us to

review whether a sentence is not only within statutory parameters but also

constitutional as applied to a particular defendant. Shoun v. State, 67 N.E.3d

635, 641 (Ind. 2017). Our standard for reviewing an as-applied proportionality

challenge depends on the type of penalty at issue. Id. For habitual-offender

enhancements, appellate courts assess the nature and gravity of the present

felony and the nature of the prior felonies on which the enhancement is based.

Id.

[12] Graves argues that his ten-year sentence for Level 6 felony OWI with a prior

conviction, including the habitual vehicular substance offender enhancement, is

disproportionate to the nature of the offense. The maximum sentence for a

Level 6 felony is two and one-half years, Ind. Code § 35-50-2-7(b), and Indiana

Code section 9-30-15.5-2(d) provides that “[t]he court shall sentence a person

found to be a habitual vehicular substance offender to an additional fixed term

of at least one (1) year but not more than eight (8) years of imprisonment, to be

added to the term of imprisonment imposed under IC 35-50-2 or IC 35-50-3.”

Here, the trial court imposed a two-year sentence for OWI with a prior Court of Appeals of Indiana | Memorandum Decision 18A-CR-1937 | January 11, 2019 Page 8 of 10 conviction, which it enhanced by eight years due to Graves’s habitual vehicular

substance offender status.

[13] We first note that Graves received an aggregate sentence of ten years, which is

less than the ten and one-half years that the trial court could have imposed. In

addition, four years of the sentence were suspended to probation, leaving

Graves’s executed sentence at six years. We conclude this sentence is

proportionate to the nature and gravity of Graves’s offense, which we covered

in another section of this memorandum decision. To summarize, the nature of

the behavior underlying Graves’s offense is that he consumed a very large

amount of alcohol (such that his BAC was over four times the legal limit),

chose to drive with that alcohol in his system, and caused an automobile

accident which left his victim with injuries severe enough that he was unable to

work for a month. As noted, it is indeed fortunate that the results of Graves’s

offense were not considerably worse.

[14] The nature of the prior convictions on which the enhancement is based does not

help Graves either. Graves was sentenced for Class D felony OWI in January

of 2003 and Class A misdemeanor OWI in June of 2012. These prior

convictions are not petty crimes committed far in the past being used to support

a habitual-offender enhancement today; rather, they are of the same precise

nature as the instant crime and at least one is relatively recent. In light of

Graves’s history of refusing to refrain from drinking and driving, there is

nothing disproportionate about Graves’s sentence in this case.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1937 | January 11, 2019 Page 9 of 10 Conclusion [15] In conclusion, we conclude that the trial court did not abuse its discretion in

sentencing Graves. We further conclude that his sentence is not inappropriate.

Finally, we conclude that Graves’s sentence is proportional to the nature and

gravity of his crime and the previous crimes upon which the enhancement is

based.

[16] We affirm the judgment of the trial court.

Bailey, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1937 | January 11, 2019 Page 10 of 10