Dante M. Riley v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 7, 2020
• Docket: 19A-CR-3002
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 07 2020, 8:39 am regarded as precedent or cited before any court except for the purpose of establishing CLERK 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 Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dante M. Riley, August 7, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-3002 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable John T. Roach, Appellee-Plaintiff. Judge Trial Court Cause Nos. 84D01-1801-F4-370 84D01-1608-F6-2331

Darden, Senior Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3002 | August 7, 2020 Page 1 of 11 Statement of the Case [1] Dante M. Riley appeals the seven-year sentence the trial court imposed after he

pleaded guilty to unlawful possession of a firearm by a serious violent felon, a 1 Level 4 felony. We affirm.

Issue [2] Riley raises one issue, which we restate as: whether his sentence is

inappropriate in light of the nature of the offense and his character.

Facts and Procedural History [3] On January 25, 2017, Riley had pled guilty in Cause Number 84D01-1608-F6-

2331 (“F6-2331”) to maintaining a common nuisance, a Level 6 felony. In

exchange, the State dismissed several other pending charges and an habitual

offender sentencing enhancement. Per the terms of the plea agreement, the trial

court imposed a two year suspended sentence and placed Riley on probation for

two years.

[4] On January 28, 2018, Officer Sanders of the Terre Haute Police Department

was on routine patrol when he saw a car, driven by a person later identified as

Riley, traveling at a high rate of speed. Riley also committed several other

driving infractions as he drove. Sanders followed Riley and activated his

emergency lights to signal Riley to stop. Rather than stop, Riley increased his

1 Ind. Code § 35-47-4-5 (2017).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3002 | August 7, 2020 Page 2 of 11 speed and sped away. Sanders then activatted his siren and continued to

follow.

[5] Riley eventually drove to a gas station and parked at a pump, where Officer

Sanders took Riley into custody. Riley had a passenger in his car, who told

Sanders that she and Riley had just left a bar when Riley noticed Sanders’

patrol car and chose to flee. She further stated that she had repeatedly told

Riley to stop the car during the pursuit, but he had refused.

[6] Officer Sanders noticed that Riley had an odor of alcoholic beverage on his

breath. In addition, Riley had bloodshot, watery eyes. He was also unsteady

on his feet and displayed poor manual dexterity. A computer search revealed

that Riley’s driver’s license was suspended.

[7] Other officers arrived on the scene and searched the car and found several

bullets in the car’s center console, but no gun. Riley’s passenger denied that the

bullets were hers. Officer Sanders recalled several locations during the pursuit

where Riley could have thrown a gun from the car. He described the locations

to other officers, who left to search them. One of the officers found a handgun

in a yard that was located along the pursuit route. Subsequent examination

revealed that the bullets that were found in the car matched bullets that were

found in the handgun.

[8] On January 30, 2018, the State filed a charging information against Riley in

Cause Number 84D01-1801-F4-370 (“F4-370”). The State alleged that Riley

had committed the offenses of unlawful possession of a firearm by a serious

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3002 | August 7, 2020 Page 3 of 11 violent felon, a Level 4 felony; resisting law enforcement by use of a vehicle, a

Level 6 felony; operating a vehicle while intoxicated with a prior conviction, a

Level 6 felony; and driving while suspended with a prior conviction, a Class A

misdemeanor. On February 2, 2018, the State filed a notice of probation

violation in Cause Number F6-2331, alleging that Riley had violated the terms

and conditions of his probation by committing the offenses charged in Cause

Number F4-370, the instant offense.

[9] As Cause Number F4-370 progressed to trial, Riley filed several motions to

reduce his bond and a motion to be released to a treatment center. The trial

court initially denied the motions. However, on July 30, 2018, the trial court

released Riley from pretrial incarceration on his own recognizance, citing

Indiana Criminal Rule 4(A).

[10] On December 13, 2018, the State filed new charges against Riley under Cause

Number 84D01-1812-F6-4338 (“F6-4338”), for acts he allegedly committed

after he had been released from jail on July 30, 2018. Specifically, the State

alleged that Riley had committed two counts of resisting law enforcement, one

as a Level 6 felony and the other as a Class A misdemeanor. The State filed an

additional notice of probation violation in Cause Number F6-2331, citing the

new charges in Cause Number F6-4338 as an additional basis for revoking

Riley’s probation.

[11] On February 26, 2019, Riley filed a motion to suppress evidence in Cause

Number F4-370. The trial court denied the motion after a hearing. On March

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3002 | August 7, 2020 Page 4 of 11 22, 2019, the parties filed a notice of plea agreement that addressed Cause

Numbers F6-4338, F4-370, and F6-2331, but Riley later withdrew from the

agreement before the trial court accepted it.

[12] On May 17, 2019, the State filed an habitual offender enhancement in Cause

Number F4-370. On October 8, 2019, the parties informed the trial court that

they had once again reached a plea agreement addressing all three cases, and

they filed a copy of the plea agreement for the trial court’s review.

[13] The plea agreement provided that in Cause Number F6-2331, Riley would

admit to violating the terms and conditions of his probation, and he would be

“terminated from probation unsatisfactorily.” Appellant’s App. Vol. 2, p. 222.

The plea agreement further provided that the State would dismiss all charges in

Cause Number F6-4338.

[14] As for Cause Number F4-370, the plea agreement stated that Riley would plead

guilty to unlawful possession of a firearm by a serious violent felon, a Level 4

felony, and the State would dismiss the remaining three charges, along with the

habitual offender sentencing enhancement. Any executed portion of Riley’s

sentence would be capped at seven years but, otherwise, all other terms and

conditions were left to the trial court’s discretion. In addition, after Riley had

served seventy-five percent of the executed portion of his sentence, he would be

permitted to file a motion for sentence modification. If Riley filed such a

motion, the State agreed that it would not object, and the question of sentencing

modification would be left to the discretion of the trial court.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3002 | August 7, 2020 Page 5 of 11 [15] On October 9, 2019, the trial court held a hearing on the parties’ plea

agreement. The trial court extensively questioned Riley and determined that

his guilty plea was being knowingly and voluntarily entered. The trial court

further determined that there was an adequate factual basis for acceptance of

the plea. The trial court took the plea agreement under advisement and set a

sentencing date.

[16] On November 20, 2019, the trial court presided over the sentencing hearing.

The trial court accepted the plea agreement, terminated Riley’s probation in

Cause Number F6-2331, and dismissed with prejudice, both charges in Cause

Number F6-4338. As for Cause Number F4-370, the trial court imposed an

executed sentence of seven years for the conviction of unlawful possession of a

firearm by a serious violent felon, and dismissed the remaining charges. This

appeal followed.

Discussion and Decision [17] Riley argues that length of his sentence is inappropriate and asks the Court to 2 reduce the term by an unspecified amount. Article 7, section 6 of the Indiana

Constitution authorizes this Court to review and revise sentences “to the extent

provided by rule.” This constitutional authority is implemented through

Appellate Rule 7(B), which provides that this Court may revise a sentence

2 Although Riley included Cause Number F6-2331 in his notice of appeal, he does not present any argument as to the termination of his probation in that case.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3002 | August 7, 2020 Page 6 of 11 otherwise 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.”

[18] A defendant bears the burden of persuading the appellate court that his or her

sentence has met this inappropriateness standard of review. Childress v. State,

848 N.E.2d 1073, 1080 (Ind. 2006). Whether a sentence should be deemed

inappropriate turns on our sense of culpability of the defendant, the severity of

the crime, the damage done to others, and other factors. Cardwell v. State, 895

N.E.2d 1219, 1224 (Ind. 2008).

[19] “[W]e must and should exercise deference to a trial court’s sentencing decision,

both because Rule 7(B) requires us to give ‘due consideration’ to that decision

and because we understand and recognize the unique perspective a trial court

brings to its sentencing decisions.” Stewart v. State, 866 N.E.2d 858, 866 (Ind.

Ct. App. 2007). Deference to the sentencing decision “should prevail unless

overcome by compelling evidence portraying in a positive light the nature of the

offense (such as accompanied by restraint, regard, and lack of brutality) and the

defendant’s character (such as substantial virtuous traits or persistent examples

of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[20] To assess whether a sentence is inappropriate, we look first to the statutory

range established for the class of the offense. At the time Riley committed the

offense of unlawful possession of a handgun by a serious violent felon, the

possible sentencing range for a Level 4 felony was imprisonment for a fixed

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3002 | August 7, 2020 Page 7 of 11 term of between two and twelve years, with the advisory sentence being six

years. Ind. Code § 35-50-2-5.5 (2014). The trial court sentenced Riley to seven

years, all executed. The seven years executed portion of Riley’s sentence is the

maximum permissible under the parties’ plea agreement, and it is only one year

above the advisory sentence established by statute.

[21] Turning to the nature of the offense, Riley argues that he never attempted to use

“or brandish” the handgun. Appellant’s Br. p. 8. Riley is correct. On the other

hand, our review reveals that his conduct during the offense demonstrates a

shocking lack of concern or regard for others. He led Officer Sanders on a high

speed car chase through the city Terre Haute, posing the potential risk of harm

to innocent pedestrians, himself, his passenger, Officer Sanders, and other

innocent motorists. In addition, Riley attempted to dispose of his handgun by

throwing it out of the car without any concern for where it might have landed

or who may have found and used it. The nature of the offense does not

demonstrate that the seven-year sentence is inappropriate.

[22] As for the character of the offender, Riley was twenty-eight years old at

sentencing. He has an extensive criminal record, consisting of seven felony

convictions (burglary, strangulation, possession of marijuana, battery,

maintaining a common nuisance, and two convictions of robbery) and six

misdemeanor convictions (criminal recklessness, domestic battery, possession

of marijuana, illegal consumption of alcohol, conversion, and operating a

vehicle with an alcohol concentration equivalent of .08 or more). It appears

that Riley has accrued new convictions every two years, demonstrating an

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3002 | August 7, 2020 Page 8 of 11 unwillingness to comply with the law. Indeed, after he was released from

pretrial incarceration in Cause Number F4-370 on July 30, 2018, less than five

months later in December, 2018, he was charged with committing new offenses

in Cause Number F6-4338.

[23] In addition, Riley has been placed on probation nine times, including in Cause

Number F6-2331, and has never successfully completed a period of probation.

He was also placed on work release in one case, and violated the terms of that

placement. The trial court commented to Riley during sentencing, “[y]our

history doesn’t bode well in terms of being on probation, or community

corrections either.” Tr. Vol. 2, pp. 35-36.

[24] Riley argues that he accepted responsibility for his actions by pleading guilty. If

the State reaps a substantial benefit from the defendant’s act of pleading guilty,

the defendant deserves to have a substantial benefit returned. Sensback v. State,

720 N.E.2d 1160, 1164 (Ind. 1999). But a guilty plea may not be significantly

mitigating “when the defendant receives a substantial benefit in return for the

plea.” Anglemyer v. State, 875 N.E.2d 218, 221 (Ind. 2007), on reh’g.

[25] In Riley’s case, he received the following substantial benefits from pleading

guilty: (1) the termination of probation in Cause Number F6-2331, without

having to serve a possible two-year consecutive suspended sentence; (2) the

dismissal of two charges, including a Level 6 felony, in Cause Number F6-4338;

(3) the dismissal of three charges, including two Level 6 felonies, in Cause

Number F4-370, along with dismissal of an habitual offender enhancement;

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3002 | August 7, 2020 Page 9 of 11 and (4) the option to file a motion for sentence modification in Cause Number

F4-370, without objection by the State, after he serves seventy-five percent of

his sentence.

[26] By contrast, the State’s benefit from Riley’s guilty plea was minimal. By the

time Riley entered into the plea agreement, Cause Number F4-370 was over a

year and a half old, and the State had expended substantial resources litigating

the matter, including preparing for trial. Riley’s guilty plea is not a substantial

reason for sentence reduction.

[27] Finally, Riley argues that his two sons will suffer undue hardship while he is

incarcerated. “[J]ail is always a hardship on dependents.” Vazquez v. State, 839

N.E.2d 1229, 1234 (Ind. Ct. App. 2005), trans. denied. “[A]bsent special

circumstances,” a court is not required to find that imprisonment of a defendant

will result in undue hardship to a dependent. Dowdell v. State, 720 N.E.2d 1146,

1154 (Ind. 1999).

[28] In Riley’s case, he has two minor children, for which he is obligated by court

orders to pay child support. But he does not have custody of either child.

Further, as the trial court noted while rejecting hardship to Riley’s children as a

mitigating factor during sentencing, Riley has committed numerous other

criminal offenses as an adult and has been either absent or incarcerated during

the children’s lives. The trial court concluded, and we agree, that any hardship

was imposed “on those kids years ago when [Riley] started down this path” of

self-destruction. Tr. Vol. 2, p. 36. The hardship to Riley’s children is not a

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3002 | August 7, 2020 Page 10 of 11 substantial basis for reducing his sentence. We conclude Riley that has failed to

demonstrate that his sentence is inappropriate in light of the nature of the

offense and his character.

Conclusion [29] For the reasons stated above, we affirm the judgment of the trial court.

[30] Affirmed.

Riley, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3002 | August 7, 2020 Page 11 of 11