Pursuant to Ind. Appellate Rule 65(D), this Dec 03 2013, 5:48 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:
KRISTIN A. MULHOLLAND GREGORY F. ZOELLER Appellate Public Defender Attorney General of Indiana Crown Point, Indiana ANDREW FALK Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
ERIC L. HECKER, JR., ) ) Appellant-Defendant, ) ) vs. ) No. 45A05-1304-CR-202 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Salvador Vasquez, Judge Cause No. 45G01-1111-FD-275
December 3, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BRADFORD, Judge CASE SUMMARY
Appellant-Defendant Eric L. Hecker, while driving a friend’s automobile, was
involved in a single-car collision that resulted in serious bodily injury to at least one of the
three passengers in the vehicle. Hecker fled the scene of the accident and later told a police
officer that he was not in the car at the time of the accident. Appellee-Plaintiff the State of
Indiana charged Hecker with three counts of failure to stop at an accident involving serious
bodily injury to another person, a Class D felony, and one count of false reporting or
informing, a Class A misdemeanor. The parties entered into a plea agreement whereby
Hecker pled guilty to one count of failure to stop. The court sentenced Hecker to three
years of incarceration, the maximum term permitted, due to several aggravating
circumstances. Hecker appeals for review of the appropriateness of the trial court’s
sentence. Because Hecker has served the entirety of his sentence, the case is moot.
Nevertheless, we address Hecker’s argument on the merits and conclude that the trial
court’s sentence was appropriate in light of the nature of the offense and the character of
the offender. We affirm.
STATEMENT OF THE FACTS
At approximately 1:30 a.m. on October 22, 2011, Hecker was driving a friend’s
Pontiac Grand Am in Crown Point, Indiana, when he was involved in a single-car collision.
Prior to the collision, Hecker had been “bar hopping” with three friends, who were also in
the car at the time of the accident. Appellant’s App. p. 71. Following the accident, Hecker
did not call 911 or attempt to assist his injured friends. Hecker fled the scene before
medical services and law enforcement arrived. Later, when asked about the accident by an
2 investigating officer, Hecker told the officer that he was not inside the vehicle during the
accident.
Lindsay Rogers, one of the vehicle passengers, was seriously injured in the accident,
suffering a torn aorta, a broken left elbow, and a deep laceration to her forehead. Due to
the severity of her injuries, Rogers was airlifted to Christ Hospital in Chicago for
emergency surgery to repair the torn aorta; she later underwent a second surgery for the
broken elbow.
On November 29, 2011, the State charged Hecker with three counts of failure to
stop following an accident involving serious bodily injury to another person, a Class D
felony, and one count of false reporting or informing, a Class A misdemeanor. On February
20, 2013, the parties entered into a plea agreement whereby Hecker pled guilty to one count
of failure to stop. On March 21, 2013, the trial court imposed a three-year sentence. In the
sentencing order, the trial court listed several aggravating circumstances. Hecker has a
criminal history that includes convictions for five misdemeanors and one felony.
Additionally, there were three open cases against Hecker at the time of sentencing. These
cases included charges of strangulation and theft, being a habitual controlled substance
offender, and two charges of operating while intoxicated (“OWI”). The trial court granted
the State’s petition to revoke Hecker’s bond after the second of these OWIs. The trial court
also noted that prior leniency by criminal courts had no deterrent effect on Hecker’s
behavior. The trial court found that each aggravating factor, standing alone, outweighed
Hecker’s mitigating factor. The trial court listed Hecker’s guilty plea as the only mitigating
circumstance. The trial court found that Hecker was entitled to receive credit for 447 days
3 spent in confinement as a result of this charge, plus 447 days of good time credit, for a total
of 894 days credit. As the state notes in its brief, Hecker was scheduled to be released on
June 29, 2013. Appellee’s Br. 5.
DISCUSSION AND DECISION
After the application of the credit time provided for in the trial court’s sentencing
order, Hecker had 201 days remaining on his three-year sentence. Hecker’s scheduled
release date, with good time, was June 29, 2013. Regardless, it has been over 201 days
since the March 21, 2013 sentencing order was issued and we are under the impression that
Hecker has served the entirety of his sentence. Consequently, Hecker cannot be granted
relief regardless of the outcome of our opinion; thus his appeal is moot. See Irwin v. State,
744 N.E.2d 565, 568 (Ind. Ct. App. 2001) (once sentence has been served, the issue of the
validity of the sentence is rendered moot, and the appellate court does not engage in
discussions of moot questions). Nevertheless, we address the merits of his claim.
Standard of Review
Indiana Appellate Rule 7(B) provides that this court “may revise a sentence
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.” Although Rule 7(B) does not require us to be “extremely” deferential to a
trial court’s sentencing decision, we still must give due consideration to that decision.
Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). This consideration stems
from the unique perspective a trial court brings to its sentencing decisions. Id. Finally, the
defendant bears the burden of persuading the appellate court that the sentence is
4 inappropriate. Id.
Appropriateness of the Sentence
Class D felonies are punishable by a term of between six months and three years,
with an advisory sentence of one and one-half years. Ind. Code § 35-50-2-7. Hecker argues
that his three-year sentence was inappropriate in light of the nature of the offense and his
character. We find that the nature of the offense was particularly egregious considering
the extent of Rogers’s injuries. The State provided extensive evidence of the life-
threatening nature of Rogers’s injuries, as well as the difficult and ongoing recovery she
faces. Although Rogers was unable to testify due to her injuries, her father testified that
Hecker encouraged another passenger in the vehicle to flee the scene. Hecker’s callous
disregard for the well-being of his friends and subsequent attempt to cover up his
involvement in the accident illustrates the careless and wanton nature of his offense.
Hecker’s character was thoroughly vetted in the presentence investigation report
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Pursuant to Ind. Appellate Rule 65(D), this Dec 03 2013, 5:48 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:
KRISTIN A. MULHOLLAND GREGORY F. ZOELLER Appellate Public Defender Attorney General of Indiana Crown Point, Indiana ANDREW FALK Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
ERIC L. HECKER, JR., ) ) Appellant-Defendant, ) ) vs. ) No. 45A05-1304-CR-202 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Salvador Vasquez, Judge Cause No. 45G01-1111-FD-275
December 3, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BRADFORD, Judge CASE SUMMARY
Appellant-Defendant Eric L. Hecker, while driving a friend’s automobile, was
involved in a single-car collision that resulted in serious bodily injury to at least one of the
three passengers in the vehicle. Hecker fled the scene of the accident and later told a police
officer that he was not in the car at the time of the accident. Appellee-Plaintiff the State of
Indiana charged Hecker with three counts of failure to stop at an accident involving serious
bodily injury to another person, a Class D felony, and one count of false reporting or
informing, a Class A misdemeanor. The parties entered into a plea agreement whereby
Hecker pled guilty to one count of failure to stop. The court sentenced Hecker to three
years of incarceration, the maximum term permitted, due to several aggravating
circumstances. Hecker appeals for review of the appropriateness of the trial court’s
sentence. Because Hecker has served the entirety of his sentence, the case is moot.
Nevertheless, we address Hecker’s argument on the merits and conclude that the trial
court’s sentence was appropriate in light of the nature of the offense and the character of
the offender. We affirm.
STATEMENT OF THE FACTS
At approximately 1:30 a.m. on October 22, 2011, Hecker was driving a friend’s
Pontiac Grand Am in Crown Point, Indiana, when he was involved in a single-car collision.
Prior to the collision, Hecker had been “bar hopping” with three friends, who were also in
the car at the time of the accident. Appellant’s App. p. 71. Following the accident, Hecker
did not call 911 or attempt to assist his injured friends. Hecker fled the scene before
medical services and law enforcement arrived. Later, when asked about the accident by an
2 investigating officer, Hecker told the officer that he was not inside the vehicle during the
accident.
Lindsay Rogers, one of the vehicle passengers, was seriously injured in the accident,
suffering a torn aorta, a broken left elbow, and a deep laceration to her forehead. Due to
the severity of her injuries, Rogers was airlifted to Christ Hospital in Chicago for
emergency surgery to repair the torn aorta; she later underwent a second surgery for the
broken elbow.
On November 29, 2011, the State charged Hecker with three counts of failure to
stop following an accident involving serious bodily injury to another person, a Class D
felony, and one count of false reporting or informing, a Class A misdemeanor. On February
20, 2013, the parties entered into a plea agreement whereby Hecker pled guilty to one count
of failure to stop. On March 21, 2013, the trial court imposed a three-year sentence. In the
sentencing order, the trial court listed several aggravating circumstances. Hecker has a
criminal history that includes convictions for five misdemeanors and one felony.
Additionally, there were three open cases against Hecker at the time of sentencing. These
cases included charges of strangulation and theft, being a habitual controlled substance
offender, and two charges of operating while intoxicated (“OWI”). The trial court granted
the State’s petition to revoke Hecker’s bond after the second of these OWIs. The trial court
also noted that prior leniency by criminal courts had no deterrent effect on Hecker’s
behavior. The trial court found that each aggravating factor, standing alone, outweighed
Hecker’s mitigating factor. The trial court listed Hecker’s guilty plea as the only mitigating
circumstance. The trial court found that Hecker was entitled to receive credit for 447 days
3 spent in confinement as a result of this charge, plus 447 days of good time credit, for a total
of 894 days credit. As the state notes in its brief, Hecker was scheduled to be released on
June 29, 2013. Appellee’s Br. 5.
DISCUSSION AND DECISION
After the application of the credit time provided for in the trial court’s sentencing
order, Hecker had 201 days remaining on his three-year sentence. Hecker’s scheduled
release date, with good time, was June 29, 2013. Regardless, it has been over 201 days
since the March 21, 2013 sentencing order was issued and we are under the impression that
Hecker has served the entirety of his sentence. Consequently, Hecker cannot be granted
relief regardless of the outcome of our opinion; thus his appeal is moot. See Irwin v. State,
744 N.E.2d 565, 568 (Ind. Ct. App. 2001) (once sentence has been served, the issue of the
validity of the sentence is rendered moot, and the appellate court does not engage in
discussions of moot questions). Nevertheless, we address the merits of his claim.
Standard of Review
Indiana Appellate Rule 7(B) provides that this court “may revise a sentence
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.” Although Rule 7(B) does not require us to be “extremely” deferential to a
trial court’s sentencing decision, we still must give due consideration to that decision.
Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). This consideration stems
from the unique perspective a trial court brings to its sentencing decisions. Id. Finally, the
defendant bears the burden of persuading the appellate court that the sentence is
4 inappropriate. Id.
Appropriateness of the Sentence
Class D felonies are punishable by a term of between six months and three years,
with an advisory sentence of one and one-half years. Ind. Code § 35-50-2-7. Hecker argues
that his three-year sentence was inappropriate in light of the nature of the offense and his
character. We find that the nature of the offense was particularly egregious considering
the extent of Rogers’s injuries. The State provided extensive evidence of the life-
threatening nature of Rogers’s injuries, as well as the difficult and ongoing recovery she
faces. Although Rogers was unable to testify due to her injuries, her father testified that
Hecker encouraged another passenger in the vehicle to flee the scene. Hecker’s callous
disregard for the well-being of his friends and subsequent attempt to cover up his
involvement in the accident illustrates the careless and wanton nature of his offense.
Hecker’s character was thoroughly vetted in the presentence investigation report
and at the sentencing hearing. Of Hecker’s five prior misdemeanor convictions, four were
alcohol-related offenses, including two OWIs. Additionally, at the time of sentencing,
Hecker had an open felony case in which he was charged with strangulation, theft and
battery. In three of his previous misdemeanor cases, Hecker was ordered to complete an
alcohol and drug services program. While out on bond in this case, Hecker was arrested
two more times for OWI, both of which were charged as Class D felonies. “Although a
record of arrests by itself is not evidence of a defendant’s criminal history, it is appropriate
to consider such a record as a poor reflection on the defendant’s character, because it may
reveal that he or she has not been deterred even after having been subjected to the police
5 authority of the State.” Rutherford, 866 N.E.2d at 874.
This pattern shows that Hecker has failed to learn from prior leniency by courts and
that these instances have had no deterrent effect on his criminal behavior or problems with
alcohol. Witness Patricia Vann, Hecker’s mother, testified on her son’s behalf at the
sentencing hearing. During her testimony, Vann addressed Hecker’s ongoing problems
with alcohol. Vann testified that she supported the trial court’s earlier decision to revoke
Hecker’s bond because she felt that incarceration would allow Hecker time to deal with his
alcohol addiction. Not only does Hecker’s character fail to counteract the aggravating
weight of the nature of the offense, it warrants its own aggravating weight.
Finally, Hecker acknowledged at the sentencing hearing that, based on the
aggravating and mitigating circumstances, he was probably going to receive a two-and-a-
half year sentence. Instead of arguing for a lesser term, he sought to serve the remainder
of the term in a work program. Hecker now argues, in his brief, that “the nature of his
offense was not such that it warranted such a deviation from the advisory sentence.”
Appellant’s Brief p. 5. However, Hecker had already conceded at the sentencing hearing
that he was likely to receive a sentence near the maximum. We find Hecker’s argument
contradictory and unpersuasive. Accordingly, we cannot say that Hecker’s three-year
sentence was inappropriate.
The judgment of the trial court is affirmed.
BAILEY, J., and MAY, J., concur.