Pursuant to Ind.Appellate Rule 65(D), Apr 30 2014, 9:39 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:
BRUCE W. GRAHAM GREGORY F. ZOELLER Graham Law Firm P.C. Attorney General of Indiana Lafayette, Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
HEATH BURGESS, ) ) Appellant-Defendant, ) ) vs. ) No. 79A02-1309-CR-754 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Michael A. Morrissey, Judge Cause No. 79D06-1207-FD-168
April 30, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge After pleading guilty to class A misdemeanor Operating a Vehicle While Intoxicated1
and admitting to being a Habitual Substance Offender,2 Heath Burgess was sentenced to five
years in the Tippecanoe County Jail with one year suspended. Burgess now appeals and
argues that his sentence is inappropriate in light of the nature of the offense and his character.
We affirm.
On the evening of July 23, 2012, Burgess was driving with a blood-alcohol content of
approximately .196. Burgess was so intoxicated that he somehow fell out of his vehicle near
an intersection, but his car kept moving and struck a mailbox and another vehicle. As a result
of these and other events, the State charged Burgess with multiple counts, including
operating a vehicle while intoxicated, driving while suspended, battery by bodily waste, and
disorderly conduct. The State also alleged that Burgess was a habitual offender and a
habitual substance offender. On January 2, 2013, Burgess entered into a plea agreement
whereby he would plead guilty to one count of class A misdemeanor operating a vehicle
while intoxicated and admit to his habitual substance offender status in return for the
dismissal of the remaining counts and the habitual offender allegation. Additionally, his
sentence would be capped at six years
On May 8, 2013, the trial court sentenced Burgess to one year for the operating while
intoxicated offense, enhanced by four years based on his habitual substance offender status,
with one year suspended to probation. Thus, Burgess received an aggregate sentence of four
1 Ind. Code Ann. § 9-30-5-2 (West, Westlaw current with all 2013 legislation). 2 Ind. Code Ann. § 30-50-2-10 (West, Westlaw current with all 2013 legislation).
2 years executed in the Tippecanoe County Jail and one year suspended. At the sentencing
hearing, the trial court noted that Burgess owed Tippecanoe County Community Corrections
nearly $2,500 in back fees, and the arrearage would prevent Burgess’s placement in
community corrections even if it was inclined to order such a placement.3 Nevertheless, the
trial court stated that after Burgess served one year of his sentence in the Tippecanoe County
Jail, it would consider a motion for Burgess to serve the remainder of the sentence in
community corrections, contingent on Burgess’s payment of his back fees and acceptance
into the program. Burgess now appeals.
Burgess argues that his sentence is inappropriate in light of the nature of the offense
and his character. Article 7, section 4 of the Indiana Constitution grants our Supreme Court
the power to review and revise criminal sentences. Pursuant to App. R. 7, the Supreme Court
has authorized this court to perform the same task. Cardwell v. State, 895 N.E.2d 1219 (Ind.
2008). Per App. R. 7(B), we may revise a sentence “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.” Wilkes v. State, 917 N.E.2d 675, 693 (Ind. 2009),
cert. denied, 131 S.Ct. 414 (2010). Nevertheless, “we 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
3 On the same date as Burgess’s sentencing hearing, the trial court entered a written sentencing order that did not reflect the sentence announced at the hearing. Specifically, the written order directed that Burgess was to serve his sentence in Tippecanoe County Community Corrections. Several months later, the trial court entered a written order correcting its previous sentencing order to reflect its oral sentencing statement. Burgess subsequently sought, and was granted, permission to file a belated notice of appeal.
3 perspective a trial court brings to its sentencing decisions.” Stewart v. State, 866 N.E.2d 858,
866 (Ind. Ct. App. 2007).
In this case, Burgess does not challenge the length of his sentence. Rather, he
challenges his placement in the county jail, arguing that he should instead have been placed
in community corrections. This court has noted that “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 so because a defendant challenging the
placement of his sentence must convince us not that another placement would be more
appropriate, but that his given placement is inappropriate. King v. State, 894 N.E.2d 265.
Moreover, we acknowledge that as a practical matter, trial courts are familiar with alternative
placements and are aware of the availability, costs, and entrance requirements of community
corrections placements in their jurisdictions. Id.
Burgess has not carried his burden of convincing us that his placement in the
Tippecanoe County Jail is inappropriate. The trial court noted that even if it was inclined to
place Burgess in community corrections, Burgess was ineligible for the program because he
owed nearly $2,500 in back fees from previous placements. Thus, placement in community
corrections was simply not an option for Burgess. Burgess argues that his placement “ought
not be dependent on economic issues.” Appellant’s Brief at 9. Burgess does not, however,
make any argument that the trial court had the authority to compel Tippecanoe County
Community Corrections to accept Burgess into its program notwithstanding his arrearage.
Moreover, even if Burgess was eligible for community corrections, he has not
4 established that placement in the county jail was inappropriate. Burgess notes that because
he was convicted of a misdemeanor, which was enhanced based on his habitual substance
offender status, he is faced with the somewhat unusual circumstance of serving a relatively
lengthy sentence in a county jail rather than the Department of Correction. See Ind. Code
Ann. § 35-38-3-3 (West, Westlaw current with all 2013 legislation) (providing that a person
convicted of a misdemeanor may not be committed to the Department of Correction except in
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Pursuant to Ind.Appellate Rule 65(D), Apr 30 2014, 9:39 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:
BRUCE W. GRAHAM GREGORY F. ZOELLER Graham Law Firm P.C. Attorney General of Indiana Lafayette, Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
HEATH BURGESS, ) ) Appellant-Defendant, ) ) vs. ) No. 79A02-1309-CR-754 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Michael A. Morrissey, Judge Cause No. 79D06-1207-FD-168
April 30, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge After pleading guilty to class A misdemeanor Operating a Vehicle While Intoxicated1
and admitting to being a Habitual Substance Offender,2 Heath Burgess was sentenced to five
years in the Tippecanoe County Jail with one year suspended. Burgess now appeals and
argues that his sentence is inappropriate in light of the nature of the offense and his character.
We affirm.
On the evening of July 23, 2012, Burgess was driving with a blood-alcohol content of
approximately .196. Burgess was so intoxicated that he somehow fell out of his vehicle near
an intersection, but his car kept moving and struck a mailbox and another vehicle. As a result
of these and other events, the State charged Burgess with multiple counts, including
operating a vehicle while intoxicated, driving while suspended, battery by bodily waste, and
disorderly conduct. The State also alleged that Burgess was a habitual offender and a
habitual substance offender. On January 2, 2013, Burgess entered into a plea agreement
whereby he would plead guilty to one count of class A misdemeanor operating a vehicle
while intoxicated and admit to his habitual substance offender status in return for the
dismissal of the remaining counts and the habitual offender allegation. Additionally, his
sentence would be capped at six years
On May 8, 2013, the trial court sentenced Burgess to one year for the operating while
intoxicated offense, enhanced by four years based on his habitual substance offender status,
with one year suspended to probation. Thus, Burgess received an aggregate sentence of four
1 Ind. Code Ann. § 9-30-5-2 (West, Westlaw current with all 2013 legislation). 2 Ind. Code Ann. § 30-50-2-10 (West, Westlaw current with all 2013 legislation).
2 years executed in the Tippecanoe County Jail and one year suspended. At the sentencing
hearing, the trial court noted that Burgess owed Tippecanoe County Community Corrections
nearly $2,500 in back fees, and the arrearage would prevent Burgess’s placement in
community corrections even if it was inclined to order such a placement.3 Nevertheless, the
trial court stated that after Burgess served one year of his sentence in the Tippecanoe County
Jail, it would consider a motion for Burgess to serve the remainder of the sentence in
community corrections, contingent on Burgess’s payment of his back fees and acceptance
into the program. Burgess now appeals.
Burgess argues that his sentence is inappropriate in light of the nature of the offense
and his character. Article 7, section 4 of the Indiana Constitution grants our Supreme Court
the power to review and revise criminal sentences. Pursuant to App. R. 7, the Supreme Court
has authorized this court to perform the same task. Cardwell v. State, 895 N.E.2d 1219 (Ind.
2008). Per App. R. 7(B), we may revise a sentence “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.” Wilkes v. State, 917 N.E.2d 675, 693 (Ind. 2009),
cert. denied, 131 S.Ct. 414 (2010). Nevertheless, “we 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
3 On the same date as Burgess’s sentencing hearing, the trial court entered a written sentencing order that did not reflect the sentence announced at the hearing. Specifically, the written order directed that Burgess was to serve his sentence in Tippecanoe County Community Corrections. Several months later, the trial court entered a written order correcting its previous sentencing order to reflect its oral sentencing statement. Burgess subsequently sought, and was granted, permission to file a belated notice of appeal.
3 perspective a trial court brings to its sentencing decisions.” Stewart v. State, 866 N.E.2d 858,
866 (Ind. Ct. App. 2007).
In this case, Burgess does not challenge the length of his sentence. Rather, he
challenges his placement in the county jail, arguing that he should instead have been placed
in community corrections. This court has noted that “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 so because a defendant challenging the
placement of his sentence must convince us not that another placement would be more
appropriate, but that his given placement is inappropriate. King v. State, 894 N.E.2d 265.
Moreover, we acknowledge that as a practical matter, trial courts are familiar with alternative
placements and are aware of the availability, costs, and entrance requirements of community
corrections placements in their jurisdictions. Id.
Burgess has not carried his burden of convincing us that his placement in the
Tippecanoe County Jail is inappropriate. The trial court noted that even if it was inclined to
place Burgess in community corrections, Burgess was ineligible for the program because he
owed nearly $2,500 in back fees from previous placements. Thus, placement in community
corrections was simply not an option for Burgess. Burgess argues that his placement “ought
not be dependent on economic issues.” Appellant’s Brief at 9. Burgess does not, however,
make any argument that the trial court had the authority to compel Tippecanoe County
Community Corrections to accept Burgess into its program notwithstanding his arrearage.
Moreover, even if Burgess was eligible for community corrections, he has not
4 established that placement in the county jail was inappropriate. Burgess notes that because
he was convicted of a misdemeanor, which was enhanced based on his habitual substance
offender status, he is faced with the somewhat unusual circumstance of serving a relatively
lengthy sentence in a county jail rather than the Department of Correction. See Ind. Code
Ann. § 35-38-3-3 (West, Westlaw current with all 2013 legislation) (providing that a person
convicted of a misdemeanor may not be committed to the Department of Correction except in
certain limited circumstances). According to Burgess, “[a]necdotal evidence, and common
sense, would dictate that service of that length of a sentence in a county jail would constitute
a harsher punishment, [sic] than service of four years in the Indiana Department of
Corrections.” Appellant’s Brief at 7-8. Even assuming the accuracy of this assertion, we
remain unconvinced that Burgess’s placement is inappropriate.
Considering the nature of the offense, we note that Burgess was driving with a blood-
alcohol content of .196, and that he was so intoxicated that he fell out of his vehicle. The
vehicle kept moving, causing property damage. Considering the character of the offender,
we note that Burgess’s lengthy criminal history includes two prior convictions for operating a
vehicle while intoxicated and multiple drug- and alcohol-related misdemeanors. Burgess
also has felony convictions for resisting law enforcement, auto theft, and theft, and he was
previously found to be a habitual offender. While out on bond in this case, Burgess was
convicted of class C felony carrying a handgun without a license. Burgess points out that he
accepted responsibility for his crimes by pleading guilty, but the mitigating weight of his
guilty plea is tempered by the fact that multiple charges were dismissed as part of the plea
5 agreement. Finally, and perhaps most importantly in this case, the record establishes that
Burgess has not fared well when offered alternatives to incarceration. Burgess has a long
history of violating the conditions of probation, home detention, and work release, and he has
also failed to appear numerous times. For all of these reasons, we cannot conclude that
Burgess’s placement in county jail rather than community corrections is inappropriate.
Judgment affirmed.
MATHIAS, J., and PYLE, J., concur.