Derrick Michael Means v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 25, 2016
• Docket: 41A04-1502-CR-68
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Feb 25 2016, 5:57 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 Michael J. Kyle Gregory F. Zoeller Baldwin Kyle & Kamish Attorney General of Indiana Franklin, Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Derrick Michael Means, February 25, 2016 Appellant-Defendant, Court of Appeals Case No. 41A04-1502-CR-68 v. Appeal from the Johnson Circuit Court State of Indiana, The Honorable K. Mark Loyd, Appellee-Plaintiff Judge Trial Court Cause No. 41C01-1312-FC-113

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 41A04-1502-CR-68 | February 25, 2016 Page 1 of 9 STATEMENT OF THE CASE

[1] Appellant-Defendant, Derrick M. Means (Means), appeals his sentence after

pleading guilty to two Counts of operating a motor vehicle while intoxicated

causing serious bodily injury, Class C felonies, Ind. Code § 9-30-5-4(a)(3)

(2013).

[2] We affirm.

ISSUES

[3] Means raises three issues on appeal, which we restate as follows:

(1) Whether Means waived his right to challenge his convictions on double

jeopardy grounds following a guilty plea;

(2) Whether the trial court abused its discretion during sentencing by relying

on the fact Means fled from the police; and

(3) Whether Means’ sentence was inappropriate in light of the nature of his

offenses and his character.

FACTS AND PROCEDURAL HISTORY

[4] On November 27, 2013, while fleeing from the police in Johnson County, a

heavily intoxicated Means rammed his SUV into a vehicle occupied by two

adults and their six-year-old son. The driver of the vehicle sustained a

traumatic brain injury. He fractured his skull, part of which had to be removed

due to brain swelling, and he remained in a coma for two to three weeks

Court of Appeals of Indiana | Memorandum Decision 41A04-1502-CR-68 | February 25, 2016 Page 2 of 9 following the accident. The front passenger suffered a double concussion, a

fractured knee cap, multiple lacerations, and internal bleeding. The child, who

was in the back seat, sustained only bumps and bruises; however, immediately

after the crash, he experienced immense shock because he believed his parents

were dead. At the time of the accident, Means was on probation for an

unrelated conviction of public intoxication. He also had one prior 2009

conviction for operating a motor vehicle while intoxicated in Indiana and one

prior 2009 conviction for driving under influence in California.

[5] On December 16, 2013, the State filed an Information charging Means with:

Counts I and II, causing serious bodily injury when operating a motor vehicle

while intoxicated with a previous conviction of operating a motor vehicle while

intoxicated within the past five years, both Class C felonies; Counts III and IV,

resisting law enforcement, both Class C felonies; and Count V, operating a

motor vehicle while intoxicated with a previous conviction of operating a motor

vehicle while intoxicated within the past five year, a Class D felony.

[6] On November 13, 2014, Means pled guilty to Counts I and II in exchange for a

maximum executed sentence cap of six years on each Count, merger of Count

V with Counts I and II, and dismissal of Counts III and IV. On January 26,

2015, the trial court held a sentencing hearing and, on January 28, 2015,

sentenced Means to an aggregate term of sixteen years, with twelve years

executed at the Department of Correction and four years suspended to

probation.

Court of Appeals of Indiana | Memorandum Decision 41A04-1502-CR-68 | February 25, 2016 Page 3 of 9 [7] Means now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

[8] Means first argues that his convictions for operating a vehicle while intoxicated

causing serious bodily injury violate Indiana’s double jeopardy laws. The State

contends that Means waived his right to challenge his convictions on double

jeopardy grounds because he entered into a plea agreement. We agree with the

State. Our review of the record reveals that Means was represented by counsel,

who discussed the plea agreement with Means several times and explained all

pertinent consequences. He understood the terms and then freely and

voluntarily signed the plea agreement. Moreover, Means received substantial

benefits from the deal—dismissal of several charges and a cap on his executed

sentence. As such, Means waived his right to challenge his convictions on

double jeopardy grounds. See Mapp v. State, 770 N.E.2d 332, 334 (Ind. 2002).

[9] Notwithstanding the waiver, Means fails to persuade us on the merits of his

double jeopardy claim as well. Means pled guilty to two offenses under Indiana

Code Section 9-30-5-4. The offenses at the time of the accident were defined as:

(a) A person who causes serious bodily injury to another person when operating a vehicle:

(1) with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol per:

(A) one hundred (100) milliliters of the person’s blood; or (B) two hundred ten (210) liters of the person’s breath;

Court of Appeals of Indiana | Memorandum Decision 41A04-1502-CR-68 | February 25, 2016 Page 4 of 9 (2) with a controlled substance listed in schedule I or II of [I.C. §] 35-48-2 or its metabolite in the person’s body; or

(3) while intoxicated;

commits a Class D felony. However, the offense is a Class C felony if the person has a previous conviction of operating while intoxicated within the five (5) years preceding the commission of the offense.

(b) A person who violates subsection (a) commits a separate offense for each person whose serious bodily injury is caused by the violation of subsection (a).

I.C. § 9-30-5-4.

[10] The statute’s language is unambiguous. The offense is elevated from a Class D

to a Class C felony, if the offender has a prior similar conviction. Further, the

offender is charged for each victim separately.

[11] Means acknowledges the statute’s specific requirement to charge separate

offenses for each victim. Instead, he claims he was subject to double jeopardy

because each of his convictions was elevated from a Class D to a Class C felony

based on his 2009 conviction of operating a vehicle while intoxicated and one

conviction “cannot be the basis of multiple enhancements . . . even when there

are multiple victims.” (Appellant’s Br. p. 6).

[12] However, at the time of the accident, Means had two prior convictions of

operating a vehicle while intoxicated within the previous five years—one in

Court of Appeals of Indiana | Memorandum Decision 41A04-1502-CR-68 | February 25, 2016 Page 5 of 9 Indiana and one in California. 1 Therefore, Means’ argument is misplaced.

Because there were two prior similar convictions, the elevation of both offenses

from Class D felonies to Class C felonies does not raise double jeopardy

concerns.

[13] Means further contends that the trial court abused its discretion when, during

sentencing, it relied on Means’ flight from the police because it was not

supported by evidence. We disagree. Sentencing decisions are reviewed for an

abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified

on reh’g, 875 N.E.2d 218 (Ind. 2007). A trial court abuses its discretion in

sentencing when it fails to issue an adequate sentencing statement, finds

aggravating or mitigating factors not supported by the record, omits factors that

are clearly supported by the record, or finds factors that are improper as a

matter of law. Id. at 490-91. An abuse of discretion occurs when a 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. at 490.

[14] Here, the trial court’s decision is adequately supported by the record and the

video recording of the crash. Means admitted in open court that he was

stopped by a police officer, fled the scene, and then, while being chased by the

1 Means admitted that he had a DUI in California at his sentencing hearing. A log showing an entry of conviction for DUI and hit and run on August 3, 2009 in California was admitted into evidence without objection as State’s Exhibit 6.

Court of Appeals of Indiana | Memorandum Decision 41A04-1502-CR-68 | February 25, 2016 Page 6 of 9 police, hit the vehicle occupied by adults and their child. As such, we hold that

the trial court did not abuse its discretion under the circumstances.

[15] Means finally claims that his aggregate executed sentence of twelve years is

inappropriate in light of the offense and his character. It is long settled “that

sentencing is principally a discretionary function in which the trial court’s

judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d

1219, 1222 (Ind. 2008). Despite the fact that the trial court imposed a sentence

that is authorized by statute, our court may revise the 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. Appellate Rule 7(B).

[16] With respect to Appellate Rule 7(B), “[t]he principal role of appellate review

should be to attempt to leaven the outliers, and identify some guiding principles

for trial courts and those charged with improvement of the sentencing statutes,

but not to achieve a perceived ‘correct’ result in each case.” Cardwell, 895

N.E.2d at 1225. Ultimately, “whether 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.” Id. at 1224. In making this determination, we

focus on the length of the aggregate sentence and the manner in which it is to be

served. Id. The defendant bears the burden of proving that his sentence is

inappropriate. Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007).

Court of Appeals of Indiana | Memorandum Decision 41A04-1502-CR-68 | February 25, 2016 Page 7 of 9 [17] As to the nature of the offenses, we note that Means drove his SUV with a

blood alcohol content of 0.24. Means was stopped by the police, but fled. He

was so intoxicated that he lacks any recollection of crashing into another

vehicle and causing severe injuries to the victims. The harm that Means caused

is incalculable; it completely changed the course of the victims’ lives. The

driver’s injuries were so severe that his heart stopped twice. His doctors

believed he was going to die and had begun preparing his family for his death.

The driver lost all sight in his right eye. He had to have part of his skull

removed because of swelling in his brain and now has a plate and screws

holding his skull together. The passenger endured a double concussion, a

fractured knee, internal bleeding, and lacerations. She floated in and out of

consciousness for seventy-two hours following the accident and remained in the

hospital for approximately a week. Furthermore, their six-year-old son not only

experienced the accident, but witnessed his parents in such a severe condition

that he believed them to be dead, and as a result, undergoes counseling

approximately twice a month. Means’ bad judgment on the evening of the

crash caused devastating and lasting consequences to this family on many

levels: physically, emotionally, and financially.

[18] Turning to Means’ character, we note that Means had multiple prior

convictions for operating a vehicle while intoxicated, public intoxication, and

resisting law enforcement, as well as probation violations. This certainly

demonstrates Means’ disregard for the law and willingness to risk his own

safety and the safety of others to avoid the consequences of his own decisions.

Court of Appeals of Indiana | Memorandum Decision 41A04-1502-CR-68 | February 25, 2016 Page 8 of 9 He was provided with opportunities for treatment and rehabilitation, but failed

to take advantage of them. Means was well aware of his severe drinking

problem and yet he continued driving his vehicle; he was uninsured at the time

of the accident and for more than a year before that. Means’ unchanged

behavior and the serious nature of the present offenses justify the trial court’s

sentencing decision. As such, we conclude that the trial court’s sentence was

not inappropriate.

CONCLUSION

[19] Based on the foregoing, we hold that Means waived his right to appeal his

convictions on double jeopardy grounds, the trial court did not abuse its

discretion during sentencing by relying on the fact Means fled from the police,

and his sentence was not inappropriate.

[20] Affirmed.

[21] Najam, J. and May, J. concur

Court of Appeals of Indiana | Memorandum Decision 41A04-1502-CR-68 | February 25, 2016 Page 9 of 9