MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Mar 10 2016, 9:15 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Neil L. Weisman Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana
Karl Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Adrian Forrest, March 10, 2016 Appellant-Defendant, Court of Appeals Case No. 71A03-1508-CR-1285 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Elizabeth C. Hurley, Judge Trial Court Cause No. 71D08-1405-FD-362
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A03-1508-CR-1285 | March 10, 2016 Page 1 of 7 [1] Adrian Forrest (“Forrest”) pleaded guilty to operating a motor vehicle while
suspended as a habitual traffic violator (“HTV”),1 a Class D felony, and
operating a motor vehicle while intoxicated 2 as a Class C misdemeanor and was
ordered to serve an aggregate two-year-sentence. Forrest appeals, raising the
following issue for our review: whether his sentence is inappropriate in light of
the nature of the offense and the character of the offender.
[2] We affirm.
Facts and Procedural History [3] On May 17, 2014, Forrest was pulled over in St. Joseph County, Indiana when
he failed to signal a turn. At that time, Forrest informed the officer that his
driver’s license was suspended and gave a false name. Forrest also exhibited
signs of intoxication. It was later determined that Forrest did not have a valid
driver’s license because it had been suspended due to his status as an HTV.
Forrest was arrested, and the State charged him with Class D felony operating a
motor vehicle while suspended as an HTV and Class C misdemeanor operating
a motor vehicle while intoxicated.
[4] On May 7, 2015, Forrest pleaded guilty to both counts as charged without the
benefit of a plea agreement. A presentence investigation report (“PSI”) was
1 See Ind. Code § 9-30-10-16. We note that this statute was amended effective July 1, 2014; however, Forrest committed his offense in May 2014, and we will apply the statute in effect at that time. 2 See Ind. Code § 9-30-5-2(a).
Court of Appeals of Indiana | Memorandum Decision 71A03-1508-CR-1285 | March 10, 2016 Page 2 of 7 ordered, and a sentencing hearing was held on July 30, 2015. In the PSI, the
probation department recommended that Forrest be sentenced to three years
with two years suspended and the executed portion to be served in community
corrections. Forrest requested that the trial court accept the recommendation of
the probation department. The State did not take a position as to whether
community corrections was appropriate, but did point out that Forrest had gone
missing from community corrections placement in the past and had “difficulty”
completing parole and probation in the past. Sent. Tr. at 7. The State also
noted Forrest’s extensive criminal history.
[5] The trial court found the fact that Forrest pleaded guilty without the benefit of a
plea agreement was a mitigating factor. As aggravating factors, the trial court
identified Forrest’s extensive criminal history, pending charges that occurred
while he was on bond in this case, and prior failures through community
corrections, parole, and probation. Due to these past failures, the trial court
found that community corrections was “not a viable option at this point.” Id. at
8. The trial court then sentenced Forrest to two years for his operating a motor
vehicle while suspended as an HTV conviction and sixty-five days for his
operating a motor vehicle while intoxicated conviction, with the sentences to
run concurrent with each other for an aggregate sentence of two years executed
in the Indiana Department of Correction. Forrest now appeals.
Discussion and Decision [6] Under Indiana Appellate Rule 7(B), “we may revise any sentence authorized by
statute if we deem it to be inappropriate in light of the nature of the offense and Court of Appeals of Indiana | Memorandum Decision 71A03-1508-CR-1285 | March 10, 2016 Page 3 of 7 the character of the offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct.
App. 2014). The question under Appellate Rule 7(B) is not whether another
sentence is more appropriate; rather, the question is whether the sentence
imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App.
2008). It is the defendant’s burden on appeal to persuade the reviewing court
that the sentence imposed by the trial court is inappropriate. Chappell v. State,
966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.
[7] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.
2008). The principal role of appellate review is to attempt to “leaven the
outliers.” Id. at 1225. Whether we regard a sentence as inappropriate 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 facts that
come to light in a given case.” Id. at 1224.
[8] Forrest argues that his sentence was inappropriate in light of the nature of his
offense and his character. Forrest contends that the nature of his offense is not
so egregious as to warrant a sentence over the advisory sentence. As to the
character of the offender, Forrest asserts that his expression of remorse, his plea
of guilty without the benefit of a plea agreement, the hardship his imprisonment
Court of Appeals of Indiana | Memorandum Decision 71A03-1508-CR-1285 | March 10, 2016 Page 4 of 7 will cause his children, and the fact that he is only a moderate risk to reoffend
all show that his sentence was inappropriate.3
[9] Forrest pleaded guilty to Class D felony operating a motor vehicle while
suspended as an HTV and Class C misdemeanor operating a motor vehicle
while intoxicated. A person who commits a Class D felony shall be imprisoned
for a fixed term of between six months and three years with the advisory being
one and one-half years. Ind. Code § 35-50-2-7. A person who commits a Class
C misdemeanor shall be imprisoned for a fixed term of not more than sixty
days. Ind. Code § 35-50-3-4. In addition to any other criminal penalty that
may be imposed for an offense of operating a vehicle while intoxicated, the
court shall order that the person be imprisoned for at least five days or that the
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Mar 10 2016, 9:15 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Neil L. Weisman Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana
Karl Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Adrian Forrest, March 10, 2016 Appellant-Defendant, Court of Appeals Case No. 71A03-1508-CR-1285 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Elizabeth C. Hurley, Judge Trial Court Cause No. 71D08-1405-FD-362
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A03-1508-CR-1285 | March 10, 2016 Page 1 of 7 [1] Adrian Forrest (“Forrest”) pleaded guilty to operating a motor vehicle while
suspended as a habitual traffic violator (“HTV”),1 a Class D felony, and
operating a motor vehicle while intoxicated 2 as a Class C misdemeanor and was
ordered to serve an aggregate two-year-sentence. Forrest appeals, raising the
following issue for our review: whether his sentence is inappropriate in light of
the nature of the offense and the character of the offender.
[2] We affirm.
Facts and Procedural History [3] On May 17, 2014, Forrest was pulled over in St. Joseph County, Indiana when
he failed to signal a turn. At that time, Forrest informed the officer that his
driver’s license was suspended and gave a false name. Forrest also exhibited
signs of intoxication. It was later determined that Forrest did not have a valid
driver’s license because it had been suspended due to his status as an HTV.
Forrest was arrested, and the State charged him with Class D felony operating a
motor vehicle while suspended as an HTV and Class C misdemeanor operating
a motor vehicle while intoxicated.
[4] On May 7, 2015, Forrest pleaded guilty to both counts as charged without the
benefit of a plea agreement. A presentence investigation report (“PSI”) was
1 See Ind. Code § 9-30-10-16. We note that this statute was amended effective July 1, 2014; however, Forrest committed his offense in May 2014, and we will apply the statute in effect at that time. 2 See Ind. Code § 9-30-5-2(a).
Court of Appeals of Indiana | Memorandum Decision 71A03-1508-CR-1285 | March 10, 2016 Page 2 of 7 ordered, and a sentencing hearing was held on July 30, 2015. In the PSI, the
probation department recommended that Forrest be sentenced to three years
with two years suspended and the executed portion to be served in community
corrections. Forrest requested that the trial court accept the recommendation of
the probation department. The State did not take a position as to whether
community corrections was appropriate, but did point out that Forrest had gone
missing from community corrections placement in the past and had “difficulty”
completing parole and probation in the past. Sent. Tr. at 7. The State also
noted Forrest’s extensive criminal history.
[5] The trial court found the fact that Forrest pleaded guilty without the benefit of a
plea agreement was a mitigating factor. As aggravating factors, the trial court
identified Forrest’s extensive criminal history, pending charges that occurred
while he was on bond in this case, and prior failures through community
corrections, parole, and probation. Due to these past failures, the trial court
found that community corrections was “not a viable option at this point.” Id. at
8. The trial court then sentenced Forrest to two years for his operating a motor
vehicle while suspended as an HTV conviction and sixty-five days for his
operating a motor vehicle while intoxicated conviction, with the sentences to
run concurrent with each other for an aggregate sentence of two years executed
in the Indiana Department of Correction. Forrest now appeals.
Discussion and Decision [6] Under Indiana Appellate Rule 7(B), “we may revise any sentence authorized by
statute if we deem it to be inappropriate in light of the nature of the offense and Court of Appeals of Indiana | Memorandum Decision 71A03-1508-CR-1285 | March 10, 2016 Page 3 of 7 the character of the offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct.
App. 2014). The question under Appellate Rule 7(B) is not whether another
sentence is more appropriate; rather, the question is whether the sentence
imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App.
2008). It is the defendant’s burden on appeal to persuade the reviewing court
that the sentence imposed by the trial court is inappropriate. Chappell v. State,
966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.
[7] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.
2008). The principal role of appellate review is to attempt to “leaven the
outliers.” Id. at 1225. Whether we regard a sentence as inappropriate 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 facts that
come to light in a given case.” Id. at 1224.
[8] Forrest argues that his sentence was inappropriate in light of the nature of his
offense and his character. Forrest contends that the nature of his offense is not
so egregious as to warrant a sentence over the advisory sentence. As to the
character of the offender, Forrest asserts that his expression of remorse, his plea
of guilty without the benefit of a plea agreement, the hardship his imprisonment
Court of Appeals of Indiana | Memorandum Decision 71A03-1508-CR-1285 | March 10, 2016 Page 4 of 7 will cause his children, and the fact that he is only a moderate risk to reoffend
all show that his sentence was inappropriate.3
[9] Forrest pleaded guilty to Class D felony operating a motor vehicle while
suspended as an HTV and Class C misdemeanor operating a motor vehicle
while intoxicated. A person who commits a Class D felony shall be imprisoned
for a fixed term of between six months and three years with the advisory being
one and one-half years. Ind. Code § 35-50-2-7. A person who commits a Class
C misdemeanor shall be imprisoned for a fixed term of not more than sixty
days. Ind. Code § 35-50-3-4. In addition to any other criminal penalty that
may be imposed for an offense of operating a vehicle while intoxicated, the
court shall order that the person be imprisoned for at least five days or that the
person perform at least one hundred eighty hours of community restitution or
service. Ind. Code § 9-30-5-15(a)(1). Here, the trial court sentenced Forrest to
two years for his Class D felony conviction and sixty-five days for his Class C
misdemeanor conviction and ordered the sentences to be served concurrently
for a total sentence of two years executed.
3 To the extent Forrest argues that the sentence or mitigators should be reviewed for an abuse of discretion, “‘an inappropriate sentence analysis does not involve an argument that the trial court abused its discretion in sentencing the defendant.’” Keller v. State, 987 N.E.2d 1099, 1121 n.11 (Ind. Ct. App. 2013) (quoting King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008)), trans. denied. Further, inappropriate sentence and abuse of discretion claims are to be analyzed separately. Id. Therefore, we consider only whether Forrest’s sentence is inappropriate, and the failure to make a cogent argument regarding whether the trial court abused its discretion in sentencing him results in waiver of that issue. Id.
Court of Appeals of Indiana | Memorandum Decision 71A03-1508-CR-1285 | March 10, 2016 Page 5 of 7 [10] As to the nature of the offense, Forrest was pulled over for failing to signal a
turn and was discovered to be operating a vehicle while suspended as an HTV
and while intoxicated. At the time, he committed the present offense, Forrest
was on probation for a previous conviction for operating a vehicle while
suspended as an HTV. The present offense is actually his third conviction for
this crime.
[11] As to his character, Forrest has an extensive criminal history consisting of
multiple offenses. He has eight prior misdemeanor convictions and nine prior
felony convictions. These convictions include drug offenses, property crimes,
crimes involving victims, and traffic-related offenses. Forrest has previously
been on probation six times and has had his probation revoked two times. He
has also absconded from previous placement in community corrections and had
“difficulty” when previously on parole. Sent. Tr. at 7. Additionally, while on
bond in the present case, Forrest was alleged to have committed two more
felony offenses. We conclude that Forrest’s two-year executed sentence is not
inappropriate in light of the nature of the offense and the character of the
offender.
[12] Additionally, to the extent that Forrest argues that his sentence is inappropriate
because the trial court did not order the executed portion to be served in
community corrections, we do not agree. Placement in a community
corrections program is an alternative to serving a sentence in the Department of
Correction and is made at the sole discretion of the trial court. Brown v. State,
947 N.E.2d 486, 489 (Ind. Ct. App. 2011), trans. denied. A defendant is not
Court of Appeals of Indiana | Memorandum Decision 71A03-1508-CR-1285 | March 10, 2016 Page 6 of 7 entitled to serve his sentence in a community corrections program, but as with
probation, placement in the program is a matter of grace and a conditional
liberty that is a favor, not a right. Id. The location where a sentence is to be
served is an appropriate focus for application of our authority to review and
revise a sentence; however, it will be quite difficult for a defendant to prevail on
a claim that the placement of his or her sentence is inappropriate because, as a
practical matter, trial courts are aware of the feasibility of alternative
placements in particular counties or communities. Fonner v. State, 876 N.E.2d
340, 343 (Ind. Ct. App. 2007). Further, the question under Appellate Rule 7(B)
is not whether another sentence is more appropriate, but rather, whether the
sentence imposed is inappropriate. Id. at 344 (emphasis in original).
[13] Here, the evidence showed that Forrest had an extensive criminal history, had
incurred pending charges for crimes that occurred while he was on bond in this
case, and had prior failures through community corrections, parole, and
probation. Due to these past failures, the trial court found that community
corrections was “not a viable option at this point.” Sent. Tr. at 8. A defendant
challenging the placement of a sentence must convince this court that the given
placement is itself inappropriate. Fonner, 876 N.E.2d at 344. We cannot say
that Forrest’s placement in the Department of Correction is inappropriate.
[14] Affirmed.
[15] Mathias, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 71A03-1508-CR-1285 | March 10, 2016 Page 7 of 7