Dominique L. White v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: August 7, 2013
• Docket: 02A03-1212-CR-541
• Status: Unpublished

Opinion

Aug 07 2013, 5:44 am Pursuant to Ind. Appellate Rule 65(D), 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:

DAVID M. ZENT GREGORY F. ZOELLER Deputy Public Defender Attorney General of Indiana Leonard, Hammond, Thoma & Terrill Fort Wayne, Indiana AARON J. SPOLARICH Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

DOMINIQUE L. WHITE, ) ) Appellant-Defendant, ) ) vs. ) No. 02A03-1212-CR-541 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Frances C. Gull, Judge Cause No. 02D05-1201-CM-564

August 7, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge Dominique L. White (“White”) pleaded guilty to operating a vehicle while

intoxicated1 as a Class A misdemeanor and was given the maximum sentence of 365

days. She now appeals, contending her sentence was inappropriate in light of the nature

of the offense and her character.

We affirm.

FACTS AND PROCEDURAL HISTORY

At approximately 11:00 p.m. on January 27, 2012, White drove her vehicle into

the rear end of another car, causing damage to the other car and injury to one of its

occupants. The responding police officer noted that White had the strong odor of alcohol

on her breath, was slurring her speech, and needed support to maintain her balance. Two

certified breath tests showed White’s blood alcohol content as 0.18 percent and 0.17

percent. After White had been informed of her Miranda rights, she admitted that she had

been drinking malt liquor prior to driving.

The State charged White with one count of operating a vehicle while intoxicated

and one count of operating a vehicle with a blood alcohol content of 0.15 percent or

greater,2 each as a Class A misdemeanor. White was released on bond. However, the

court later revoked White’s bond after she violated the conditions of her release by being

alleged to have committed additional criminal acts. Ultimately, White pleaded guilty to

both charges in exchange for placement in the drug court diversion program. The State

agreed that if White successfully completed drug court, then it would dismiss the two

1 See Ind. Code § 9-30-5-2(b). 2 See Ind.Code. § 9-30-5-1(b).

2 charges against her in exchange for her pleading guilty to one count of Class B

misdemeanor reckless driving.3

In White’s three months in drug court, she missed three drug screens and

submitted two positive drug screens. She also failed to complete community service and

did not maintain the appropriate contact with law enforcement. The court ordered

substance abuse treatment for White, but she failed to attend the initial session on two

occasions. After these violations, White withdrew from the drug court program and

proceeded to sentencing, where she was also sentenced for other offenses she

subsequently had committed. The trial court vacated her Count II conviction and

sentenced White to the maximum sentence on Count I, 365 days in the Allen County

Confinement Facility. White now appeals her sentence.

DISCUSSION AND DECISION

White argues that her 365-day sentence was inappropriate in light of the nature of

the offense and her character. She contends that because she is not the worst offender nor

did she commit the worst offense, she should not have been sentenced to the maximum

sentence that could have been imposed. White raises this same argument in her other

appeal that is currently before this court, Cause No. 02A05-1212-CR-651.

We may revise a sentence after careful review of the trial court’s decision if we

conclude that the sentence is inappropriate based on the nature of the offense and the

character of the offender. Ind. Appellate Rule 7(B). “Under this rule, the burden is on

the defendant to persuade the appellate court that his or her sentence is inappropriate.”

3 See Ind. Code § 9-28-8-52.

3 McMahon v. State, 856 N.E.2d 743, 749 (Ind. Ct. App. 2006) (citing Childress v. State,

848 N.E.2d 1073, 1080 (Ind. 2006)). The reviewing court “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).

We keep in mind that maximum sentences are generally most appropriate for the

worst offenders. Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002). This maxim is

not, however, a guideline to determine whether a worse offender could be imagined. Id.

Rather, “we refer generally to the class of offenses and offenders that warrant the

maximum punishment.” Id. Such a class encompasses a considerable variety of offenses

and offenders. Id. When reviewing a maximum sentence, we concentrate less on

comparing the facts of this case to others, whether real or hypothetical, and focus more

on the nature, extent, and depravity of the offense for which the defendant is being

sentenced, and what it reveals about the defendant’s character. Hull v. State, 839 N.E.2d

1250, 1257 (Ind. Ct. App. 2005) (citing Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct.

App. 2007), trans. denied).

In support of her character, White points to a letter she gave the judge at

sentencing, which discusses her desire to change and help others, and also asks for help

with her substance abuse problem. However, for the reasons we discuss in White’s

companion case, including her numerous prior convictions and noncompliance with

viable rehabilitation options, we do not find persuasive White’s proffered mitigating

4 evidence.

As to the nature of the offense, White contends that the nature of her substance

abuse offense, which is technically considered non-violent, does not warrant imposition

of the maximum sentence. Nevertheless, someone was injured, and property was

damaged due to White’s errant actions. We find that, taken together, White’s character

and the nature of her offense place her in the class of offenders that warrant the 365-day

maximum executed sentence. Therefore, we are not persuaded that the trial court’s

sentence was inappropriate.

Affirmed.

VAIDIK, J., and PYLE, J., concur.