Dominic Lowe v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 27, 2015
• Docket: 84A05-1412-CR-566
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this May 27 2015, 9:01 am 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 Cara Schaefer Wieneke Gregory F. Zoeller Wieneke Law Office, LLC Attorney General of Indiana Plainfield, Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dominic Lowe, May 27, 2015

Appellant-Defendant, Court of Appeals Case No. 84A05-1412-CR-566 v. Appeal from the Vigo Superior Court State of Indiana, Lower Court Cause No. 84D03-1408-F3-2200 Appellee-Plaintiff. The Honorable David R. Bolk, Judge

Pyle, Judge.

Statement of the Case [1] Dominic Lowe (“Lowe”) pled guilty to Level 5 felony battery against a public

safety officer and admitted that he was an habitual offender in exchange for the

Court of Appeals of Indiana | Memorandum Decision 84A05-1412-CR-566|May 27, 2015 Page 1 of 6 State’s dismissal of seven other charges. The trial court sentenced Lowe—who

was on probation in one case and out on bond in another case at the time of his

offenses and who had violated a no-contact order after his arrest in this case—to

an aggregate term of seven years executed in the Department of Correction,

which was within the eight-year executed cap contained in the plea agreement.

Lowe now appeals his sentence, alleging that his sentence is inappropriate

because the trial court ordered him to serve his executed time in the

Department of Correction instead of in a community corrections program or an

inpatient substance abuse program. Concluding that Lowe has failed to show

that his sentence is inappropriate, we affirm his sentence.

[2] Affirmed.

Issue Whether Lowe’s executed sentence in the Department of Correction was inappropriate. Facts [3] On September 24, 2014, the State ultimately charged Lowe with: Count I,

Level 3 felony attempted robbery resulting in bodily injury; Count II, Level 5

felony disarming a law enforcement officer; Count III, Level 5 felony battery

against a public safety officer; Count IV, Level 6 felony resisting law

enforcement; Count V, Level 6 felony resisting law enforcement; Count VI,

Class A misdemeanor invasion of privacy with an enhancement based on a

prior invasion of privacy conviction; Count VII, Class B misdemeanor false

Court of Appeals of Indiana | Memorandum Decision 84A05-1412-CR-566|May 27, 2015 Page 2 of 6 informing; and Count VIII, Class B misdemeanor disorderly conduct.1 The

State also filed an information alleging that Lowe was an habitual offender. At

the time of his offenses, Lowe was on probation in one case and out on bond in

another case.

[4] On October 2, 2014, Lowe pled guilty, pursuant to a written plea agreement, to

the Level 5 felony battery against a public safety officer. In addition, he

admitted that he was an habitual offender in exchange for the State’s dismissal

of the remaining charges. The plea agreement also provided that the State

would “recommend that the defendant be sentenced to the Indiana Department

of Correction for a term of imprisonment not to exceed eight (8) years, and the

parties shall argue all other terms of sentencing before the Court.” (App. 58).

Additionally, under the terms of the plea agreement, the State agreed that it

would dismiss all charges in a separate cause, terminate Lowe’s probation in

two other causes, not file charges against Lowe for invasion of privacy based on

his contact with the victim after his arrest in this cause, and not file charges

against him for false statements made under oath during a bond reduction

hearing in this cause.

[5] When sentencing Lowe, the trial court noted that he had a “significant,

significant criminal history[,]” including eight felony convictions and had

previously served time in prison on three occasions in North Carolina and

1 The State filed its original charging information on August 20, 2014, and the trial court granted the State’s motion to file its amended charging information on September 24, 2014.

Court of Appeals of Indiana | Memorandum Decision 84A05-1412-CR-566|May 27, 2015 Page 3 of 6 Indiana. (Sent. Tr. 45). The trial court also noted that Lowe was out on bond

and on probation when he committed the offenses in this case, that he had “a

number of probation violations in the past filed against [him,]” and that he

violated the terms of his bond, which was no contact with the victim, after his

arrest in this case. (Sent. Tr. 46). The trial court also acknowledged that Lowe

had a “serious substance abuse . . . problem” and that his imprisonment would

result in a hardship to his dependents. The trial court imposed a four (4) year

executed sentence for the Level 5 felony and enhanced it by three (3) years for

Lowe’s habitual offender adjudication. Thus, the trial court imposed an

aggregate sentence of seven (7) years and ordered that it be served in the

Department of Correction. Lowe now appeals his sentence.

Decision [6] Lowe contends that his aggregate seven-year executed sentence and his habitual

offender adjudication is inappropriate. We may revise a sentence if it is

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

offender. Ind. Appellate Rule 7(B). The defendant has the burden of

persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d

1073, 1080 (Ind. 2006). The principal role of a Rule 7(B) 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 v. State, 895

N.E.2d 1219, 1225 (Ind. 2008).

Court of Appeals of Indiana | Memorandum Decision 84A05-1412-CR-566|May 27, 2015 Page 4 of 6 [7] Lowe argues that his “lengthy prison term, as opposed to an alternative to

incarceration, was inappropriate in this case.” (Lowe’s Br. 5). He suggests that

the trial court should have considered other sentencing options, such as work

release, home detention, or an inpatient substance abuse program.

[8] In regard to a defendant’s challenge to placement, our Indiana Supreme Court

has explained that “[t]he place [where] a sentence is to be served is an

appropriate focus for application of our review and revise authority.” Biddinger

v. State, 868 N.E.2d 407, 414 (Ind. 2007). Nevertheless, “it will be quite

difficult for a defendant to prevail on a claim that the placement of his sentence

is inappropriate.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008).

“This is because 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.” Id. at 268 (emphasis in original).

[9] Here, Lowe simply alleges that the trial court should have considered the

“plethora of sentencing options available other than prison[.]” (Lowe’s Br. 7).

He has not, however, shown that his placement in the Department of

Correction is inappropriate. Indeed, the plea agreement provided that there

would be a sentencing cap of eight years executed in the Department of

Correction. Moreover, Lowe, who was twenty-eight years old at the time of his

offenses, has an extensive criminal history, including multiple violations of

probation. Additionally, the record on appeal reveals that the nature of Lowe’s

offenses involved Lowe fleeing from police, grabbing an officer’s Taser gun,

and hitting him multiple times with it when the officer tried to arrest him.

Court of Appeals of Indiana | Memorandum Decision 84A05-1412-CR-566|May 27, 2015 Page 5 of 6 Further, Lowe was violating a protective order issued for the protection of his

estranged wife.

[10] Lowe has not persuaded us that his aggregate seven-year executed sentence is

inappropriate. Therefore, we affirm the trial court’s sentence.

[11] Affirmed.

Crone, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 84A05-1412-CR-566|May 27, 2015 Page 6 of 6