MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 26 2020, 10:41 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 ATTORNEY FOR APPELLEE Leanna Weissmann Tiffany A. McCoy Lawrenceburg, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Joseph Bradford Reed, May 26, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-68 v. Appeal from the Ripley Circuit Court State of Indiana, The Honorable Ryan J. King, Appellee-Plaintiff. Judge Trial Court Cause No. 69C01-1805-F5-21
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-68 | May 26, 2020 Page 1 of 7 [1] Joseph Bradford Reed appeals his sentence for operating a vehicle as an
habitual traffic violator suspended for life as a level 5 felony. We affirm.
Facts and Procedural History
[2] On April 8, 2018, Reed operated a motor vehicle on a public road after his
driving privileges had been forfeited for life. On May 14, 2018, the State
charged Reed under cause number 69C01-1805-F5-21 (“Cause No. 21”) with
Count I, operating a vehicle as an habitual traffic violator suspended for life as a
level 5 felony, and Count II, operating a vehicle as an habitual traffic violator as
a level 6 felony.
[3] On August 1, 2018, Reed and the State filed a Joint Motion in Tender of
Conditional Negotiated Plea pursuant to which Reed agreed to plead guilty to
Count I and the State agreed to dismiss Count II. The plea agreement stated
that Reed would be sentenced to six years with three years suspended to
probation, and that the sentence would be served consecutive to the sentence of
six years with four years suspended to probation for operating a vehicle as an
habitual traffic violator suspended for life as a level 5 felony under cause
number 69C01-1601-F5-6 (“Cause No. 6”). On the same day, the court entered
an order rejecting the plea agreement and scheduling a jury trial.
[4] On December 16, 2019, the court held a hearing. Reed pled guilty to Count I
and the State agreed to dismiss Count II. Reed testified that, when he was
incarcerated, “it came to me that my poor decisions have been negatively
affecting my life as well as others around me, so I didn’t have any option but to
Court of Appeals of Indiana | Memorandum Decision 20A-CR-68 | May 26, 2020 Page 2 of 7 try and make change in my life.” Transcript Volume II at 12. He testified that
he entered the RWI Program, spent ten months in-patient, attended NA
meetings, and took numerous electives such as parenting classes, coping skills
electives, and anger management. He stated: “I’ve learned to humble myself
and look out for other inmates and be a positive peer.” Id. at 13. He stated:
“I’d get behind a wheel and I’d drive a car to support myself and others and
that would be on impulse and I’m very – was very impulsive and I’m trying to
change that.” Id. at 14. He testified that, when he “originally got to
Branchville,” he was written up for the unauthorized possession of a “clicky ink
pen,” which was the only write up he had. Id. at 15. He stated: “I’m trying to
hold myself accountable for my past and come in here today and hold myself
accountable for this and, uh, so to speak, close the door to, uh, hopefully open a
new perspective.” Id. at 16. He testified that he was driving to Milan, Indiana,
to park the car and “catch a reliable ride to work.” Id. at 17. He further stated:
“No one was hurt, the car was legal, insurance was on the vehicle, I had a
seatbelt on, there was no alcohol, no drugs involved. I was simply trying to, uh,
function and make money.” Id. at 17.
[5] In its sentencing order, the court found Reed’s lengthy criminal history and his
significant history of violating probation as substantial aggravating factors. The
court did not find any mitigating factors but noted it did “take the following
factors into consideration”: the nature of the offense and that Reed was
currently serving a five and one-half-year sentence in Cause No. 6. Appellant’s
Appendix Volume II at 99. At the hearing, the court also mentioned that Reed
Court of Appeals of Indiana | Memorandum Decision 20A-CR-68 | May 26, 2020 Page 3 of 7 was using his time relatively well in the Department of Correction (“DOC”).
The court sentenced Reed to five and one-half years in the DOC and suspended
two and one-half years to probation.
Discussion
[6] Reed argues that his sentence is inappropriate and requests to be resentenced to
a fully suspended sentence. He argues that his offense was a victimless and
non-violent traffic offense, he was only driving to work, and his actions in
prison show redemptive character.
[7] Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, [we find] that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender.” Under this rule, the burden is on the defendant to persuade
the appellate court that his or her sentence is inappropriate. Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006).
[8] Ind. Code § 35-50-2-6 provides that a person who commits a level 5 felony shall
be imprisoned for a fixed term between one and six years, with the advisory
sentence being three years.
[9] Our review of the nature of the offense reveals that Reed operated a motor
vehicle on a public road after his driving privileges had been forfeited for life.
Reed stated he was driving to Milan to eventually go to work.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-68 | May 26, 2020 Page 4 of 7 [10] Our review of the character of the offender reveals that Reed pled guilty to
operating a vehicle as an habitual traffic violator suspended for life as a level 5
felony. At the hearing, Reed stated he had improved himself while
incarcerated. The presentence investigation report (“PSI”) indicates that Reed
reported being employed as a laborer/operator in Milan prior to his
incarceration. Reed reported having two biological children and that a DCS
case had been opened on them. He reported that he last consumed alcohol in
2009, smoked marijuana on and off for several years until 2009, experimented
with cocaine, LSD, and methamphetamine, last used methamphetamine in
September 2016, had no substance abuse treatment or counseling, attended
CMHC for an evaluation, and attended AA meetings after being convicted for
his DUIs.
[11] As a juvenile, Reed was alleged to have committed battery resulting in bodily
injury as a class A misdemeanor if committed as an adult and was placed on an
informal adjustment. He was also found delinquent for receiving stolen
property and battery resulting in bodily injury. As an adult, Reed was
convicted of minor consumption as a class B misdemeanor in 1998. He was
charged with minor consuming alcohol as a class C misdemeanor and driving
while suspended as a class A misdemeanor and was sentenced in 1999 to sixty
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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 26 2020, 10:41 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 ATTORNEY FOR APPELLEE Leanna Weissmann Tiffany A. McCoy Lawrenceburg, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Joseph Bradford Reed, May 26, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-68 v. Appeal from the Ripley Circuit Court State of Indiana, The Honorable Ryan J. King, Appellee-Plaintiff. Judge Trial Court Cause No. 69C01-1805-F5-21
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-68 | May 26, 2020 Page 1 of 7 [1] Joseph Bradford Reed appeals his sentence for operating a vehicle as an
habitual traffic violator suspended for life as a level 5 felony. We affirm.
Facts and Procedural History
[2] On April 8, 2018, Reed operated a motor vehicle on a public road after his
driving privileges had been forfeited for life. On May 14, 2018, the State
charged Reed under cause number 69C01-1805-F5-21 (“Cause No. 21”) with
Count I, operating a vehicle as an habitual traffic violator suspended for life as a
level 5 felony, and Count II, operating a vehicle as an habitual traffic violator as
a level 6 felony.
[3] On August 1, 2018, Reed and the State filed a Joint Motion in Tender of
Conditional Negotiated Plea pursuant to which Reed agreed to plead guilty to
Count I and the State agreed to dismiss Count II. The plea agreement stated
that Reed would be sentenced to six years with three years suspended to
probation, and that the sentence would be served consecutive to the sentence of
six years with four years suspended to probation for operating a vehicle as an
habitual traffic violator suspended for life as a level 5 felony under cause
number 69C01-1601-F5-6 (“Cause No. 6”). On the same day, the court entered
an order rejecting the plea agreement and scheduling a jury trial.
[4] On December 16, 2019, the court held a hearing. Reed pled guilty to Count I
and the State agreed to dismiss Count II. Reed testified that, when he was
incarcerated, “it came to me that my poor decisions have been negatively
affecting my life as well as others around me, so I didn’t have any option but to
Court of Appeals of Indiana | Memorandum Decision 20A-CR-68 | May 26, 2020 Page 2 of 7 try and make change in my life.” Transcript Volume II at 12. He testified that
he entered the RWI Program, spent ten months in-patient, attended NA
meetings, and took numerous electives such as parenting classes, coping skills
electives, and anger management. He stated: “I’ve learned to humble myself
and look out for other inmates and be a positive peer.” Id. at 13. He stated:
“I’d get behind a wheel and I’d drive a car to support myself and others and
that would be on impulse and I’m very – was very impulsive and I’m trying to
change that.” Id. at 14. He testified that, when he “originally got to
Branchville,” he was written up for the unauthorized possession of a “clicky ink
pen,” which was the only write up he had. Id. at 15. He stated: “I’m trying to
hold myself accountable for my past and come in here today and hold myself
accountable for this and, uh, so to speak, close the door to, uh, hopefully open a
new perspective.” Id. at 16. He testified that he was driving to Milan, Indiana,
to park the car and “catch a reliable ride to work.” Id. at 17. He further stated:
“No one was hurt, the car was legal, insurance was on the vehicle, I had a
seatbelt on, there was no alcohol, no drugs involved. I was simply trying to, uh,
function and make money.” Id. at 17.
[5] In its sentencing order, the court found Reed’s lengthy criminal history and his
significant history of violating probation as substantial aggravating factors. The
court did not find any mitigating factors but noted it did “take the following
factors into consideration”: the nature of the offense and that Reed was
currently serving a five and one-half-year sentence in Cause No. 6. Appellant’s
Appendix Volume II at 99. At the hearing, the court also mentioned that Reed
Court of Appeals of Indiana | Memorandum Decision 20A-CR-68 | May 26, 2020 Page 3 of 7 was using his time relatively well in the Department of Correction (“DOC”).
The court sentenced Reed to five and one-half years in the DOC and suspended
two and one-half years to probation.
Discussion
[6] Reed argues that his sentence is inappropriate and requests to be resentenced to
a fully suspended sentence. He argues that his offense was a victimless and
non-violent traffic offense, he was only driving to work, and his actions in
prison show redemptive character.
[7] Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, [we find] that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender.” Under this rule, the burden is on the defendant to persuade
the appellate court that his or her sentence is inappropriate. Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006).
[8] Ind. Code § 35-50-2-6 provides that a person who commits a level 5 felony shall
be imprisoned for a fixed term between one and six years, with the advisory
sentence being three years.
[9] Our review of the nature of the offense reveals that Reed operated a motor
vehicle on a public road after his driving privileges had been forfeited for life.
Reed stated he was driving to Milan to eventually go to work.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-68 | May 26, 2020 Page 4 of 7 [10] Our review of the character of the offender reveals that Reed pled guilty to
operating a vehicle as an habitual traffic violator suspended for life as a level 5
felony. At the hearing, Reed stated he had improved himself while
incarcerated. The presentence investigation report (“PSI”) indicates that Reed
reported being employed as a laborer/operator in Milan prior to his
incarceration. Reed reported having two biological children and that a DCS
case had been opened on them. He reported that he last consumed alcohol in
2009, smoked marijuana on and off for several years until 2009, experimented
with cocaine, LSD, and methamphetamine, last used methamphetamine in
September 2016, had no substance abuse treatment or counseling, attended
CMHC for an evaluation, and attended AA meetings after being convicted for
his DUIs.
[11] As a juvenile, Reed was alleged to have committed battery resulting in bodily
injury as a class A misdemeanor if committed as an adult and was placed on an
informal adjustment. He was also found delinquent for receiving stolen
property and battery resulting in bodily injury. As an adult, Reed was
convicted of minor consumption as a class B misdemeanor in 1998. He was
charged with minor consuming alcohol as a class C misdemeanor and driving
while suspended as a class A misdemeanor and was sentenced in 1999 to sixty
days with fifty days suspended and 180 days probation. In 1999, he was
charged with minor consumption as a class C misdemeanor and entered pre-
trial diversion. He was convicted of two counts of minor consuming alcohol as
class C misdemeanors in 1999; resisting law enforcement as a class A
Court of Appeals of Indiana | Memorandum Decision 20A-CR-68 | May 26, 2020 Page 5 of 7 misdemeanor and public intoxication as a class B misdemeanor in 2002;
domestic battery as a class A misdemeanor, public intoxication as a class B
misdemeanor, and two counts of criminal mischief as class A misdemeanors in
2004; operating while intoxicated endangering a person and possession of
paraphernalia as class A misdemeanors in 2005; operating a vehicle while
intoxicated and intimidation as class D felonies in 2006; domestic battery as a
class A misdemeanor in 2009; possession of chemical reagents or precursors
with intent to manufacture as a class C felony and two counts of operating a
vehicle as an habitual traffic violator as class D felonies in 2012; possession of a
device or substance used to interfere with drug or alcohol screening as a class B
misdemeanor in 2016; and operating a vehicle after forfeiture of license for life
as a level 5 felony under Cause No. 6 in 2018. The PSI also indicates Reed has
at least ten known misdemeanor convictions and at least six known felony
convictions, has been found in violation of probation at least ten times, had his
probation terminated on four occasions, and had two pending offenses in Ohio.
[12] The PSI further provides that Reed’s overall risk assessment score using the
Indiana Risk Assessment System places him in the high risk to reoffend
category. It states that a community corrections coordinator conducted a
Home Detention Eligibility Application on Reed and “[p]ursuant to Local
Presumptive Criteria, it was determined [Reed] is not eligible for Home
Detention due to having two active warrants out of Hamilton County Ohio.”
Appellant’s Appendix Volume II at 94.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-68 | May 26, 2020 Page 6 of 7 [13] After due consideration, we conclude that Reed has not sustained his burden of
establishing that his sentence of five and one-half years with two and one-half
years suspended to probation is inappropriate in light of the nature of the
offense and his character. 1
[14] For the foregoing reasons, we affirm Reed’s sentence.
[15] Affirmed.
Najam, J., and Kirsch, J., concur.
1 To the extent Reed argues the court abused its discretion in failing to find that he would respond positively to probation, he had changed his character and attitude, his acceptance of responsibility, and his guilty plea as mitigators, we need not address this issue because we find that his sentence is not inappropriate. See Chappell v. State, 966 N.E.2d 124, 134 n.10 (Ind. Ct. App. 2012) (noting that any error in failing to consider the defendant’s guilty plea as a mitigating factor is harmless if the sentence is not inappropriate) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that, in the absence of a proper sentencing order, Indiana appellate courts may either remand for resentencing or exercise their authority to review the sentence pursuant to Ind. Appellate Rule 7(B)), reh’g denied; Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007) (noting that, “even if the trial court is found to have abused its discretion in the process it used to sentence the defendant, the error is harmless if the sentence imposed was not inappropriate”), trans. denied), trans. denied. Even if we were to address Reed’s abuse of discretion argument, we would not find it persuasive in light of the record including his extensive criminal history and violations of probation.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-68 | May 26, 2020 Page 7 of 7