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 Jan 16 2015, 9:58 am establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KATHIE A. PERRY GREGORY F. ZOELLER Sovich Minch, LLP Attorney General of Indiana Indianapolis, Indiana GRAHAM T. YOUNGS Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JAMES LEE ATWOOD, ) ) Appellant-Defendant, ) ) vs. ) No. 73A04-1406-CR-293 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE SHELBY SUPERIOR COURT The Honorable David N. Riggins, Judge Cause No. 73D02-1307-FD-264
January 16, 2015
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Judge Case Summary and Issue
James Atwood pled guilty to resisting law enforcement, a Class D felony, and was
sentenced to three years with 540 days to be executed in the Indiana Department of
Correction (“DOC”) and the remainder suspended to probation. He now raises one issue
for our review: whether his placement in the DOC rather than a community corrections
program makes his sentence inappropriate in light of the nature of his offense and his
character. Concluding that Atwood’s sentence is not inappropriate, we affirm.
Facts and Procedural History
On July 20, 2013, Atwood was riding his moped down a road in Shelby County
when he swerved across both lanes of traffic and nearly struck another moped. Nearby
police officers who observed the incident stepped into the road in order to speak with
Atwood and check him for intoxication. Although the police officers identified
themselves, waved, and told him to stop, Atwood turned sharply into an alley, attempting
to get away. He did not want to stop, because he had been drinking. Atwood was soon
apprehended.
The State charged Atwood with resisting law enforcement as a Class D felony for
use of a vehicle in committing the offense; resisting law enforcement as a Class A
misdemeanor; and failure to stop at the scene of an accident resulting in non-vehicle
property damage, a Class B misdemeanor. Pursuant to a plea agreement, Atwood pled
guilty to resisting law enforcement as a Class D felony in exchange for dismissal of the
remaining counts. The parties agreed to a three-year sentence, with no more than two years
executed, subject to the trial court’s discretion in choosing the placement location.
2 In sentencing Atwood, the trial court considered the nature of Atwood’s offense and
his criminal history as aggravating factors and considered Atwood’s guilty plea as a
mitigating factor. It then sentenced Atwood to three years, consisting of 540 days executed
in the DOC and the remainder suspended to probation. Atwood now appeals his sentence.
Discussion and Decision
I. Standard of Review
“[T]he Indiana Constitution authorizes independent appellate review and revision
of a trial court’s sentencing decision,” Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014), including
“[t]he place that a sentence is to be served,” Biddinger v. State, 868 N.E.2d 407, 414 (Ind.
2007). 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.” Ind. Appellate Rule 7(B). “[T]he
question under Appellate Rule 7(B) is not whether another sentence is more appropriate;
rather, the question is whether the sentence imposed is inappropriate. A defendant
challenging the placement of a sentence must convince us that the given placement is itself
inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (citations omitted)
(emphasis in original).
II. Atwood’s Sentence
Atwood was convicted of resisting law enforcement as a Class D felony. See Ind.
Code § 35-44.1-3-1(a)(3), (b)(1)(A) (2013) (resisting law enforcement using a vehicle is a
Class D felony). At the time of Atwood’s offense, Class D felonies had a sentencing range
between six months and three years with an advisory sentence of one and one-half years.
3 Ind. Code § 35-50-2-7(a) (2013). Atwood was sentenced to three years, of which
approximately one and one-half years were to be executed in the DOC. Atwood argues
that several mitigating factors were presented to the trial court which make his placement
in the DOC rather than a community corrections program to serve his executed term
inappropriate in light of the nature of his offense and his character as laid out in Appellate
Rule 7(B).
Our review of the nature of Atwood’s offense reveals that Atwood used poor
judgment in trying to evade the police on a moped. Although his actions could have caused
injury to himself and others, his failure to stop for the police was not particularly egregious,
as he was apprehended quickly and no injuries were inflicted on others.
Our review of Atwood’s character reveals that he has not been a law-abiding citizen.
At the time of Atwood’s offense, he had an extensive criminal history. Atwood’s criminal
history spans over a period of a decade and includes the following: three convictions of
battery; intimidation; failure to return to lawful detention; theft; two convictions of
possession of marijuana; public intoxication; two convictions of operating a vehicle while
intoxicated; operating a vehicle without ever receiving a license; failure to stop after
accident resulting in serious bodily injury; two convictions of operating a vehicle as an
habitual traffic violator; and, two convictions of resisting law enforcement. See Wells v.
State, 2 N.E.3d 123, 131 (Ind. Ct. App. 2014) (when considering the character of an
offender, the significance of a defendant’s criminal history is a factor, and it is dependent
on the gravity, nature, and number of prior offenses as they relate to the current offense),
trans. denied. Atwood’s criminal history shows that he has particular problems with
4 substance abuse, abiding by this State’s motor vehicle laws, and respecting authority, all
of which concern his current conviction and are an indication that he has not learned from
his previous offenses.
Atwood entered a plea of guilty with the understanding that he would serve no more
than two years of his three year sentence as executed time. Atwood did this knowing that
the trial court had the discretion to place him in the DOC rather than a community
corrections program, and Atwood’s plea provided him with a substantial benefit in that two
additional counts were dismissed. See Powell v. State, 895 N.E.2d 1259, 1262-63 (Ind. Ct.
App. 2008) (“[A] guilty plea does not rise to the level of significant mitigation where the
defendant has received a substantial benefit from the plea or where the evidence against
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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 Jan 16 2015, 9:58 am establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KATHIE A. PERRY GREGORY F. ZOELLER Sovich Minch, LLP Attorney General of Indiana Indianapolis, Indiana GRAHAM T. YOUNGS Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JAMES LEE ATWOOD, ) ) Appellant-Defendant, ) ) vs. ) No. 73A04-1406-CR-293 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE SHELBY SUPERIOR COURT The Honorable David N. Riggins, Judge Cause No. 73D02-1307-FD-264
January 16, 2015
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Judge Case Summary and Issue
James Atwood pled guilty to resisting law enforcement, a Class D felony, and was
sentenced to three years with 540 days to be executed in the Indiana Department of
Correction (“DOC”) and the remainder suspended to probation. He now raises one issue
for our review: whether his placement in the DOC rather than a community corrections
program makes his sentence inappropriate in light of the nature of his offense and his
character. Concluding that Atwood’s sentence is not inappropriate, we affirm.
Facts and Procedural History
On July 20, 2013, Atwood was riding his moped down a road in Shelby County
when he swerved across both lanes of traffic and nearly struck another moped. Nearby
police officers who observed the incident stepped into the road in order to speak with
Atwood and check him for intoxication. Although the police officers identified
themselves, waved, and told him to stop, Atwood turned sharply into an alley, attempting
to get away. He did not want to stop, because he had been drinking. Atwood was soon
apprehended.
The State charged Atwood with resisting law enforcement as a Class D felony for
use of a vehicle in committing the offense; resisting law enforcement as a Class A
misdemeanor; and failure to stop at the scene of an accident resulting in non-vehicle
property damage, a Class B misdemeanor. Pursuant to a plea agreement, Atwood pled
guilty to resisting law enforcement as a Class D felony in exchange for dismissal of the
remaining counts. The parties agreed to a three-year sentence, with no more than two years
executed, subject to the trial court’s discretion in choosing the placement location.
2 In sentencing Atwood, the trial court considered the nature of Atwood’s offense and
his criminal history as aggravating factors and considered Atwood’s guilty plea as a
mitigating factor. It then sentenced Atwood to three years, consisting of 540 days executed
in the DOC and the remainder suspended to probation. Atwood now appeals his sentence.
Discussion and Decision
I. Standard of Review
“[T]he Indiana Constitution authorizes independent appellate review and revision
of a trial court’s sentencing decision,” Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014), including
“[t]he place that a sentence is to be served,” Biddinger v. State, 868 N.E.2d 407, 414 (Ind.
2007). 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.” Ind. Appellate Rule 7(B). “[T]he
question under Appellate Rule 7(B) is not whether another sentence is more appropriate;
rather, the question is whether the sentence imposed is inappropriate. A defendant
challenging the placement of a sentence must convince us that the given placement is itself
inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (citations omitted)
(emphasis in original).
II. Atwood’s Sentence
Atwood was convicted of resisting law enforcement as a Class D felony. See Ind.
Code § 35-44.1-3-1(a)(3), (b)(1)(A) (2013) (resisting law enforcement using a vehicle is a
Class D felony). At the time of Atwood’s offense, Class D felonies had a sentencing range
between six months and three years with an advisory sentence of one and one-half years.
3 Ind. Code § 35-50-2-7(a) (2013). Atwood was sentenced to three years, of which
approximately one and one-half years were to be executed in the DOC. Atwood argues
that several mitigating factors were presented to the trial court which make his placement
in the DOC rather than a community corrections program to serve his executed term
inappropriate in light of the nature of his offense and his character as laid out in Appellate
Rule 7(B).
Our review of the nature of Atwood’s offense reveals that Atwood used poor
judgment in trying to evade the police on a moped. Although his actions could have caused
injury to himself and others, his failure to stop for the police was not particularly egregious,
as he was apprehended quickly and no injuries were inflicted on others.
Our review of Atwood’s character reveals that he has not been a law-abiding citizen.
At the time of Atwood’s offense, he had an extensive criminal history. Atwood’s criminal
history spans over a period of a decade and includes the following: three convictions of
battery; intimidation; failure to return to lawful detention; theft; two convictions of
possession of marijuana; public intoxication; two convictions of operating a vehicle while
intoxicated; operating a vehicle without ever receiving a license; failure to stop after
accident resulting in serious bodily injury; two convictions of operating a vehicle as an
habitual traffic violator; and, two convictions of resisting law enforcement. See Wells v.
State, 2 N.E.3d 123, 131 (Ind. Ct. App. 2014) (when considering the character of an
offender, the significance of a defendant’s criminal history is a factor, and it is dependent
on the gravity, nature, and number of prior offenses as they relate to the current offense),
trans. denied. Atwood’s criminal history shows that he has particular problems with
4 substance abuse, abiding by this State’s motor vehicle laws, and respecting authority, all
of which concern his current conviction and are an indication that he has not learned from
his previous offenses.
Atwood entered a plea of guilty with the understanding that he would serve no more
than two years of his three year sentence as executed time. Atwood did this knowing that
the trial court had the discretion to place him in the DOC rather than a community
corrections program, and Atwood’s plea provided him with a substantial benefit in that two
additional counts were dismissed. See Powell v. State, 895 N.E.2d 1259, 1262-63 (Ind. Ct.
App. 2008) (“[A] guilty plea does not rise to the level of significant mitigation where the
defendant has received a substantial benefit from the plea or where the evidence against
him is such that the decision to plead guilty is merely a pragmatic one.”), trans. denied.
Given that the plea’s two year limit on Atwood’s executed time was quite favorable and
that Atwood’s offense was witnessed by police officers, the decision to plead was merely
a pragmatic one.
Although Atwood was remorseful for his actions, accepted responsibility by
pleading guilty, and his incarceration could cause hardship on his daughter, those facts do
not make his placement in the DOC inappropriate. It is true that these facts may have
deserved some mitigating weight, and the trial court showed that by ordering 540 days of
executed time, which is less than the time allowed under his plea agreement. The trial
court could have placed Atwood in a community corrections facility if it found that
placement location to be appropriate, but it decided to place him in the DOC instead.
Atwood has not convinced us that his placement at the DOC is inappropriate. See King,
5 894 N.E.2d at 268 (“[T]he question under Appellate Rule 7(B) is not whether another
sentence is more appropriate; rather, the question is whether the sentence imposed is
inappropriate.”) (emphasis in original).
Conclusion
In light of the nature of Atwood’s offense and his character, we conclude that his
three-year sentence at the DOC is not inappropriate. The sentence is affirmed.
Affirmed. BAILEY, J., and BROWN, J., concur.