Char'Dae Avery v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 24, 2015
• Docket: 34A02-1504-CR-224
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Sep 24 2015, 10:24 am 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 Donald E.C. Leicht Gregory F. Zoeller Kokomo, Indiana Attorney General of Indiana

Justin F. Roebel Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Char’Dae Avery, September 24, 2015 Appellant-Defendant, Court of Appeals Case No. 34A02-1504-CR-224 v. Appeal from the Howard Circuit Court State of Indiana, The Honorable Lynn Murray Appellee-Plaintiff. Trial Court Cause No. 34C01-1402-FB-58

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 34A02-1504-CR-224 | September 24, 2015 Page 1 of 9 Statement of the Case [1] Char’Dae Avery appeals her sentence following her conviction for causing the

death of another person while operating a vehicle with marijuana or its

metabolite in her blood, as a Class B felony, pursuant to a guilty plea. Avery

presents a single issue for our review, namely, whether the trial court abused its

discretion when it sentenced her. We affirm.

Facts and Procedural History [2] On February 15, 2014, at approximately 7:30 p.m., Avery, a diagnosed

schizophrenic, ignored a stop sign and drove her vehicle through an intersection

in Kokomo, striking a car driven by Matthew Foutch. Avery was traveling at

seventy-five miles per hour in a forty-mile-per-hour zone, and, according to her

vehicle’s data recorder, she did not attempt to brake until one second prior to

the collision. Witnesses observed that Avery began dancing after exiting her

vehicle, and one witness heard Avery yell, “I did it!” Appellant’s App. at 139.

Avery did not appear to know that she had been in a collision, and she tried to

leave the scene on foot despite one witness’s instruction to wait for police to

arrive. That witness “took Avery to the ground and kept her at the scene until

police arrived.” Id. at 160.

[3] Kokomo Police Department Officer Dan Hunkeler arrived and observed that

Avery’s speech was “slurred and abusive,” her eyes were red and watery, her

balance was “very poor,” and her pants were wet. Id. at 160. After Avery

refused to comply with Officer Hunkeler’s orders and tried to leave the scene,

Court of Appeals of Indiana | Memorandum Decision 34A02-1504-CR-224 | September 24, 2015 Page 2 of 9 Officer Hunkeler arrested her and placed her in handcuffs. Avery then refused

to get into his patrol car and stated, “No, mother****er.” Id. Officer Hunkeler

had to forcibly place Avery in the patrol car. Later, Officer Erik Fogg

transported Avery to St. Joseph Hospital for a blood draw. When Officer Fogg

told Avery that the driver of the other car was likely dead, Avery responded, “I

don’t give a f***!” Id. at 158. Avery tested positive for marijuana, and she

admitted to having smoked a “blunt” with friends before the collision. Foutch

died of the injuries he sustained in the collision.

[4] The State charged Avery with causing the death of another person while

operating a vehicle with marijuana or its metabolite in her blood, as a Class B

felony; failure to stop at an accident resulting in death, as a Class B felony;

resisting law enforcement, as a Class A misdemeanor; possession of marijuana,

as a Class A misdemeanor; and disorderly conduct, as a Class C misdemeanor.

In August 2014, the State and Avery entered into a plea agreement, but the trial

court rejected it. In March 2015, Avery filed a notice of intent to plead guilty to

causing the death of another person while operating a vehicle with marijuana or

its metabolite in her blood, as a Class B felony, and the State moved to dismiss

the remaining charges without prejudice.1 At a hearing on April 1, the trial

court accepted Avery’s guilty plea and sentenced her to twenty years, with

eighteen years executed and two years suspended to probation. This appeal

ensued.

1 There was no plea agreement.

Court of Appeals of Indiana | Memorandum Decision 34A02-1504-CR-224 | September 24, 2015 Page 3 of 9 Discussion and Decision [5] Avery contends that the trial court abused its discretion when it sentenced her. 2

Sentencing decisions rest within the sound discretion of the trial court and are

reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868

N.E.2d 482, 490 (Ind. 2007), clarified on other grounds on reh’g, 875 N.E.2d 218

(Ind. 2007). An abuse of discretion occurs if the decision is clearly against the

logic and effect of the facts and circumstances before the court, or the

reasonable, probable, and actual deductions to be drawn therefrom. Id.

One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Other examples include entering 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, or the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or the reasons given are improper as a matter of law . . . .

[However, b]ecause the trial court no longer has any obligation to “weigh” aggravating and mitigating factors against each other when imposing a sentence, . . . a trial court cannot now be said to have abused its discretion in failing to “properly weigh” such factors.

Id. at 490-91. If a trial court abuses its discretion, “remand for resentencing

may be the appropriate remedy if we cannot say with confidence that the trial

2 The State reads Avery’s brief to also contend that her sentence is inappropriate in light of the nature of the offense and her character. But, other than a single citation to Appellate Rule 7(B) in her brief, Avery does not make cogent argument in support of any such contention.

Court of Appeals of Indiana | Memorandum Decision 34A02-1504-CR-224 | September 24, 2015 Page 4 of 9 court would have imposed the same sentence had it properly considered

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

[6] At sentencing, the trial court identified a single aggravator, the nature and

circumstances of the crime, and three mitigators: Avery’s young age, lack of

criminal history, and guilty plea. Generally, the “nature and circumstances” of

a crime is a proper aggravating circumstance. McCann v. State, 749 N.E.2d

1116, 1120 (Ind. 2001) (quoting Thacker v. State, 709 N.E.2d 3, 10 (Ind. 1999)).

In explaining the aggravator at the sentencing hearing, the trial court stated in

relevant part as follows:

I think the particular nature and circumstances of these offenses, of this particular offense, is an aggravating factor and this is why [sic], I agree causing death is [an] element of the offense. Mr. Foutch’s death was an element and that’s what makes this a Class B felony and Ms. Avery being over the age of 21. But this, where the crime really occurred I guess is in these stages[:] that Ms. Avery chose, before getting on the road in Kokomo, Indiana, to share a one[-]gram blunt marijuana cigar, blunt, with one or two of her friends and become evidently extremely intoxicated through recreational marijuana use. And then she chose to get on the road and travel at a high rate of speed through a busy Kokomo intersection of a 4[-]way stop. Someone was bound to get hurt in this case. Most tragically, someone was killed. Through other facts and circumstances, some of which (inaudible) are reflected in the other charges that the State has dismissed, she first failed to stop. She had to be tackled by a pedestrian to stop. She resisted law enforcement. She actually had marijuana in the vehicle at the time and she was disorderly with the police. I view the nature and circumstances of this offense to present some aggravating factors. I don’t doubt the sincerity of her remorsefulness here as she’s been in jail for 410

Court of Appeals of Indiana | Memorandum Decision 34A02-1504-CR-224 | September 24, 2015 Page 5 of 9 days and facing the decision of this court or any court for this offense to which she committed. I consider that as well. As I’ve said, as a matter of record in this case is that she was evaluated by two mental health professionals, one of them being a psychiatrist and the other being a clinical psychologist. Both concluded that not only is she competent, she also could appreciate the wrongfulness of the events that day. Also described that her mental health, at least in some part, is due to heavy marijuana recreational use. That’s a conscious decision that she made. I do think my decision today as I know can no way be justice for the loss of Mr. Foutch’s life but that an aggravated sentence of 20 years incarceration is appropriate[, with two years suspended to probation].

Tr. at 60-62. And in its written sentencing order, the trial court stated as

follows:

The Court considers and finds as aggravating circumstances the nature and circumstances of the offense. The defendant smoked a marijuana blunt with friends before operating a vehicle at a high rate of speed through a busy four-stop intersection, striking the victim’s vehicle causing his death. After the collision, the defendant did not stop, but attempted to flee the scene. She was disorderly with law enforcement, and marijuana was found in her vehicle.

Appellant’s App. at 116.

[7] Avery maintains that the trial court erred when it identified the nature and

circumstances of the crime as an aggravating circumstance. In particular,

Avery asserts that the trial court “committed error (an abuse of discretion) in

sentencing Avery to an enhanced, maximum sentence, relying on aggravators

which were merely elements of the offense or unproven/not stipulated to or by Court of Appeals of Indiana | Memorandum Decision 34A02-1504-CR-224 | September 24, 2015 Page 6 of 9 elevating family considerations to the status of aggravator.” Appellant’s Br. at

13. We address each contention in turn.

[8] First, to the extent Avery contends that the trial court considered the victim’s

death in support of its nature and circumstances aggravator, we disagree. The

trial court expressly stated that the victim’s death was an element of the offense,

and we do not read the sentencing statement as identifying the victim’s death as

aggravating. Second, we do not read the trial court’s sentencing statement to

have considered as aggravating the victim’s family’s statements.

[9] Third, Avery asserts that she “never stipulated” to the following facts cited by

the trial court: that she did not stop but attempted to flee the scene after the

collision; that she was disorderly with the officers; and that marijuana was

found in her vehicle. Appellant’s Br. at 11. Indeed, while the challenged facts

are related to the other charges that were dismissed, they do not form a part of

the factual basis for her plea to having caused Foutch’s death while operating a

vehicle with marijuana or its metabolite in her blood. Avery’s stipulation was

limited to the “probable cause affidavit, at least sufficient enough to establish a

factual basis” for that offense, but she did not stipulate to the challenged facts,

which may be relevant to the nature and circumstances of the crime but which

are not relevant to proof of the underlying offense. Tr. at 9-10.

[10] However, Avery’s stipulation was only relevant to the factual basis of her guilty

plea. At sentencing, the trial court also properly considered the presentence

investigation report, which included the probable cause affidavit, in its entirety.

Court of Appeals of Indiana | Memorandum Decision 34A02-1504-CR-224 | September 24, 2015 Page 7 of 9 Avery was given the opportunity, but she did not challenge the accuracy of the

presentence investigation report, and information contained in the report is

presumed accurate unless the defendant challenges it in some respect. Dillard v.

State, 827 N.E.2d 570, 576 (Ind. Ct. App. 2005), trans. denied. Because each of

the facts cited by the trial court in support of the nature and circumstances

aggravator finds support in the presentence investigation report, the court did

not err when it identified that aggravator.

[11] Further, to the extent Avery contends that the trial court could not properly

consider facts related to her dismissed charges at sentencing, she is mistaken.

In Bethea v. State, 983 N.E.2d 1134, 1142 (Ind. 2013), our supreme court

addressed the issue of “whether the trial court erred by treating the victim’s

injury as an aggravating factor when the injury was an element of [a] burglary

charge that was dismissed pursuant to his plea agreement.” In Bethea, the court

stated in relevant part as follows:

Our opinion today does not foreclose the possibility of the Defendant bargaining as to what can and cannot be potential aggravating and mitigating factors. It is well within the purview of contract law, and consequentially, as mentioned above, the law as it relates to plea bargains, for the Defendant to bargain and the State to accept a plea bargain that forecloses the possibility of the trial court using enhancements from the underlying charges that were dismissed, or from the original charges from which a lesser included plea is taken. However, if a plea bargain lacks such language, we hold it is not necessary for a trial court to turn a blind eye to the facts of the incident that brought the defendant before them. As we stated in Anglemyer v. State, “the nature and circumstances of the crime as well as the manner in

Court of Appeals of Indiana | Memorandum Decision 34A02-1504-CR-224 | September 24, 2015 Page 8 of 9 which the crime is committed” is a valid aggravating factor. Anglemyer v. State, 868 N.E.2d at 492.

In this case, the court did not err by giving significant weight to the facts presented to it relating to the burglary and other dismissed charges. Although these facts share a relation with the elements of the dismissed Class A felony Burglary Resulting in Bodily Injury, the State’s obligations under the plea agreement were fulfilled upon dismissal of the seven remaining counts and it owed the Defendant no further duty to omit these facts from the aggravating circumstances consideration. Both the State and Defendant agreed to this plea bargain.

(Emphases added). Here, there was no plea agreement and the parties did not

otherwise agree to exclude the relevant evidence at sentencing. Thus, under

Bethea, the facts underlying the dismissed charges as set out in the presentence

investigation report were properly considered by the trial court in support of the

nature and circumstances of the offense aggravator. See id.

[12] Affirmed.

Kirsch, J., and Barnes, J., concur.

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