MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 31 2019, 9:33 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Caroline B. Briggs Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana Matthew Michaloski Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeffery Newton Higman, May 31, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2687 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff. Judge Trial Court Cause No. 79D02-1803-F5-49
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2687 | May 31, 2019 Page 1 of 7 Statement of the Case [1] Jeffery Higman (“Higman”) appeals the six-year sentence imposed after he
pleaded guilty to Level 5 felony operating a motor vehicle while driving
privileges are forfeited for life1 and Class A misdemeanor operating a vehicle
with an alcohol concentration equivalent to at least .15.2 He argues that the
trial court abused its discretion in sentencing him. Concluding that the trial
court did not abuse its discretion, we affirm Higman’s sentence.
[2] We affirm.
Issue Whether the trial court abused its discretion in sentencing Higman.
Facts [1] In September 2018, fifty-three-year-old Higman pled guilty pursuant to a plea
agreement to Level 5 felony operating a motor vehicle while his driving
privileges were suspended for life and Class A misdemeanor operating a vehicle
with an alcohol concentration equivalent to at least .15. At the guilty plea
hearing, the trial court explained to Higman that it could choose to order his
sentences to run “consecutive, that means the Court could order that you first
1 IND. CODE § 9-30-10-17. 2 I.C. § 9-30-5-1.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2687 | May 31, 2019 Page 2 of 7 do a sentence for Count one, followed by the sentence for Count two,
consecutive, which means one after another,” and Higman stated that he
understood. (Tr. Vol. 2 at 12).
[2] The following month, the trial court held a sentencing hearing. The
presentence investigation report included seven pages detailing Higman’s
extensive criminal history. Specifically, Higman has multiple misdemeanor
convictions, including three for operating while intoxicated, two for resisting
law enforcement, and one each for possession of a firearm, operating a vehicle
with a Schedule 1or 2 controlled substance or its metabolite, battery and public
intoxication. Higman also has multiple felony convictions, including three for
operating while intoxicated with a prior conviction, three for being an habitual
traffic violator, two for receiving stolen property, and one each for criminal
recklessness while armed with a deadly weapon, obstruction of
justice/destroying evidence, resisting law enforcement, and possession of
methamphetamine. Higman has twice been adjudicated to be an habitual
substance offender and once adjudicated to be an habitual offender. He has had
ten probation violation petitions filed against him, and while he was out on
bond in the current case, he committed another felony.
[3] Also at the hearing, Higman asked the trial court to consider the following
mitigating factors: (1) his guilty plea and acceptance of responsibility in this
case; (2) his history of mental health issues and physical problems relating to an
assault over ten years ago; and (3) his cooperation with law enforcement when
arrested in this case. The State argued that “the big aggravator in this case
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2687 | May 31, 2019 Page 3 of 7 [was] the criminal history.” (Tr. Vol. 2 at 32). The State further pointed out
that the police had reported that Higman’s attitude was hostile during the arrest
in this case and that although he said he had only drunk two beers, his blood
alcohol level was .176, which is twice the legal limit.
[4] After hearing Higman’s and the State’s arguments, the trial court found the
following aggravating factors: (1) Higman’s criminal history, which did not
“speak well . . . of [his] conduct or [his] attitude toward probation or [his]
willingness to follow the rules[;]” and (2) the danger to the community when
Higman was driving while under the influence of alcohol. (Tr. Vol. 2 at 39).
The trial court also found Higman’s guilty plea and mental health to be
mitigating factors. The trial court sentenced Higman to five (5) years for the
Level 5 felony and one (1) year for the Class A misdemeanor. The trial court
further ordered the sentences to run consecutively to each other for a total
sentence of six (6) years, with four (4) years executed and two (2) years on
probation.
Decision [5] Higman argues that the trial court abused its discretion in sentencing him.
Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). So long as the sentence is
in the statutory range, it is subject to review only for an abuse of discretion. Id.
An abuse of discretion occurs if the decision is clearly against the logic and
effect of the facts and circumstances before the court or the reasonable,
probable, and actual deductions to be drawn therefrom. Id. at 491. A trial Court of Appeals of Indiana | Memorandum Decision 18A-CR-2687 | May 31, 2019 Page 4 of 7 court may abuse its discretion in a number of ways, including: (1) failing to
enter a sentencing statement at all; (2) entering a sentencing statement that
includes aggravating and mitigating factors that are unsupported by the record;
(3) entering a sentencing statement that omits reasons that are clearly supported
by the record; or (4) entering a sentencing statement that includes reasons that
are improper as a matter of law. Id. at 490-91.
[6] Here, Higman first contends that the trial court abused its discretion when it
ordered his two sentences to run consecutively to each other. At the outset, we
note that Higman understood the possibility of consecutive sentences. We now
turn to the substance of Higman’s argument that he “should not receive
consecutive sentences for a single act.” (Higman’s Br. 13). Higman, however,
committed two separate and distinct crimes involving conduct prohibited by
two different statutes. First, Higman violated INDIANA CODE § 9-30-10-17
when he operated a motor vehicle after his driving privileges had been forfeited
for life. He also violated INDIANA CODE § 9-30-5-1 when he operated a vehicle
with an alcohol concentration equivalent to at least .15. “The basis for the
gross impact that consecutive sentences may have is the moral principle that
each separate and distinct criminal act deserves a separately experienced
punishment.” Hart v. State, 829 N.E.2d 541, 545 (Ind. Ct. App. 2005). The trial
court did not abuse its discretion in ordering Higman’s two sentences to run
consecutively to each other.
[7] Higman further contends that the trial court abused its discretion because it
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 31 2019, 9:33 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Caroline B. Briggs Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana Matthew Michaloski Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeffery Newton Higman, May 31, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2687 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff. Judge Trial Court Cause No. 79D02-1803-F5-49
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2687 | May 31, 2019 Page 1 of 7 Statement of the Case [1] Jeffery Higman (“Higman”) appeals the six-year sentence imposed after he
pleaded guilty to Level 5 felony operating a motor vehicle while driving
privileges are forfeited for life1 and Class A misdemeanor operating a vehicle
with an alcohol concentration equivalent to at least .15.2 He argues that the
trial court abused its discretion in sentencing him. Concluding that the trial
court did not abuse its discretion, we affirm Higman’s sentence.
[2] We affirm.
Issue Whether the trial court abused its discretion in sentencing Higman.
Facts [1] In September 2018, fifty-three-year-old Higman pled guilty pursuant to a plea
agreement to Level 5 felony operating a motor vehicle while his driving
privileges were suspended for life and Class A misdemeanor operating a vehicle
with an alcohol concentration equivalent to at least .15. At the guilty plea
hearing, the trial court explained to Higman that it could choose to order his
sentences to run “consecutive, that means the Court could order that you first
1 IND. CODE § 9-30-10-17. 2 I.C. § 9-30-5-1.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2687 | May 31, 2019 Page 2 of 7 do a sentence for Count one, followed by the sentence for Count two,
consecutive, which means one after another,” and Higman stated that he
understood. (Tr. Vol. 2 at 12).
[2] The following month, the trial court held a sentencing hearing. The
presentence investigation report included seven pages detailing Higman’s
extensive criminal history. Specifically, Higman has multiple misdemeanor
convictions, including three for operating while intoxicated, two for resisting
law enforcement, and one each for possession of a firearm, operating a vehicle
with a Schedule 1or 2 controlled substance or its metabolite, battery and public
intoxication. Higman also has multiple felony convictions, including three for
operating while intoxicated with a prior conviction, three for being an habitual
traffic violator, two for receiving stolen property, and one each for criminal
recklessness while armed with a deadly weapon, obstruction of
justice/destroying evidence, resisting law enforcement, and possession of
methamphetamine. Higman has twice been adjudicated to be an habitual
substance offender and once adjudicated to be an habitual offender. He has had
ten probation violation petitions filed against him, and while he was out on
bond in the current case, he committed another felony.
[3] Also at the hearing, Higman asked the trial court to consider the following
mitigating factors: (1) his guilty plea and acceptance of responsibility in this
case; (2) his history of mental health issues and physical problems relating to an
assault over ten years ago; and (3) his cooperation with law enforcement when
arrested in this case. The State argued that “the big aggravator in this case
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2687 | May 31, 2019 Page 3 of 7 [was] the criminal history.” (Tr. Vol. 2 at 32). The State further pointed out
that the police had reported that Higman’s attitude was hostile during the arrest
in this case and that although he said he had only drunk two beers, his blood
alcohol level was .176, which is twice the legal limit.
[4] After hearing Higman’s and the State’s arguments, the trial court found the
following aggravating factors: (1) Higman’s criminal history, which did not
“speak well . . . of [his] conduct or [his] attitude toward probation or [his]
willingness to follow the rules[;]” and (2) the danger to the community when
Higman was driving while under the influence of alcohol. (Tr. Vol. 2 at 39).
The trial court also found Higman’s guilty plea and mental health to be
mitigating factors. The trial court sentenced Higman to five (5) years for the
Level 5 felony and one (1) year for the Class A misdemeanor. The trial court
further ordered the sentences to run consecutively to each other for a total
sentence of six (6) years, with four (4) years executed and two (2) years on
probation.
Decision [5] Higman argues that the trial court abused its discretion in sentencing him.
Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). So long as the sentence is
in the statutory range, it is subject to review only for an abuse of discretion. Id.
An abuse of discretion occurs if the decision is clearly against the logic and
effect of the facts and circumstances before the court or the reasonable,
probable, and actual deductions to be drawn therefrom. Id. at 491. A trial Court of Appeals of Indiana | Memorandum Decision 18A-CR-2687 | May 31, 2019 Page 4 of 7 court may abuse its discretion in a number of ways, including: (1) failing to
enter a sentencing statement at all; (2) entering a sentencing statement that
includes aggravating and mitigating factors that are unsupported by the record;
(3) entering a sentencing statement that omits reasons that are clearly supported
by the record; or (4) entering a sentencing statement that includes reasons that
are improper as a matter of law. Id. at 490-91.
[6] Here, Higman first contends that the trial court abused its discretion when it
ordered his two sentences to run consecutively to each other. At the outset, we
note that Higman understood the possibility of consecutive sentences. We now
turn to the substance of Higman’s argument that he “should not receive
consecutive sentences for a single act.” (Higman’s Br. 13). Higman, however,
committed two separate and distinct crimes involving conduct prohibited by
two different statutes. First, Higman violated INDIANA CODE § 9-30-10-17
when he operated a motor vehicle after his driving privileges had been forfeited
for life. He also violated INDIANA CODE § 9-30-5-1 when he operated a vehicle
with an alcohol concentration equivalent to at least .15. “The basis for the
gross impact that consecutive sentences may have is the moral principle that
each separate and distinct criminal act deserves a separately experienced
punishment.” Hart v. State, 829 N.E.2d 541, 545 (Ind. Ct. App. 2005). The trial
court did not abuse its discretion in ordering Higman’s two sentences to run
consecutively to each other.
[7] Higman further contends that the trial court abused its discretion because it
failed to find undue hardship to “his fiancé, who was significantly ill, with both
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2687 | May 31, 2019 Page 5 of 7 severe mental and physical disabilities” to be a mitigating factor. (Higman’s Br.
14). However, Higman has waived appellate review of this factor because he
failed to advance it for consideration in the trial court. See Simms v. State, 791
N.E.2d 225, 233 (Ind. Ct. App. 2003) (explaining that “[i]f the defendant fails
to advance a mitigating circumstance at sentencing, this court will presume that
the circumstance is not significant and the defendant is precluded from
advancing it as a mitigating circumstance for the first time on appeal.”)
[8] Waiver notwithstanding, a trial court has discretion to determine a factor is
mitigating, and it is not required to explain why it does not find the defendant’s
proffered factor to be mitigating. Haddock v. State, 800 N.E.2d 242, 245 (Ind.
Ct. App. 2003). A claim that the trial court failed to find a mitigating
circumstance requires the defendant to establish that the mitigating evidence is
both significant and clearly supported by the record. Anglemyer, 868 N.E.2d at
493. Higman has done neither. The trial court did not abuse its discretion in
sentencing Higman.3
3 Higman also appears to argue that his sentence is inappropriate. However, he has waived appellate review of this argument because his brief, conclusory reference to the word “inappropriate” in the conclusion of his appellate brief is supported neither by citation to authority nor cogent argument. See Smith v. State, 822 N.E.2d 193, 202-03 (Ind. Ct. App. 2005) (“Generally, a party waives any issue raised on appeal where the party fails to develop a cogent argument or provide adequate citation to authority and portions of the record.”), trans. denied. Waiver notwithstanding, Higman’s six-year sentence is not inappropriate.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2687 | May 31, 2019 Page 6 of 7 [9] Affirmed.
Riley, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2687 | May 31, 2019 Page 7 of 7