Michael Dunfee v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: February 22, 2012
• Docket: 79A03-1106-CR-279
• Status: Unpublished

Opinion

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 FILED Feb 22 2012, 9:11 am establishing the defense of res judicata, collateral estoppel, or the law of the CLERK of the supreme court, case. court of appeals and tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

BRUCE W. GRAHAM GREGORY F. ZOELLER Graham Law Firm P.C. Attorney General of Indiana Lafayette, Indiana ANGELA N. SANCHEZ Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

MICHAEL DUNFEE, ) ) Appellant-Defendant, ) ) vs. ) No. 79A03-1106-CR-279 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Thomas H. Busch, Judge Cause No. 79D02-1008-FC-00041

FEBRUARY 22, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BARTEAU, Senior Judge STATEMENT OF THE CASE

Michael Dunfee appeals his sentences for operating a motor vehicle while driving

privileges are forfeited for life, a Class C felony, Ind. Code § 9-30-10-17 (1993),

operating while intoxicated in a manner that endangers a person, a Class A misdemeanor,

Ind. Code § 9-30-5-2 (2001), and being a habitual substance offender, Ind. Code § 35-50-

2-10 (2006). We affirm in part and reverse in part.

ISSUES

Dunfee raises three issues, which we restate as:

I. Whether the trial court abused its discretion by imposing consecutive sentences.

II. Whether Dunfee’s sentence is inappropriate in light of the nature of the offense and the character of the offender.

III. Whether the trial court abused its discretion by ordering Dunfee to pay restitution.

FACTS AND PROCEDURAL HISTORY

On the afternoon of June 12, 2010, Dunfee and Tonya King returned to

Tippecanoe County, Indiana, from a trip to North Carolina. King is Dunfee’s ex-

girlfriend and the mother of his child, and she had driven her mother’s car on the trip.

Upon their arrival in Tippecanoe County, they went to a bar and consumed alcohol before

going to Dunfee’s residence. While at his residence, Dunfee and King engaged in a

verbal argument that escalated into a physical conflict. Dunfee removed King from his

residence by pulling her outside. Shortly thereafter, Dunfee believed that King had his

cellular phone, so he approached the passenger side of King’s car as she sat in the

2 driver’s seat. King attempted to back up the car, and, as she did so, the car’s passenger

side door scraped against a bush. Dunfee came around to the driver’s side of the car, and

King moved over to the passenger side seat. Dunfee got behind the wheel, grabbed King

as she tried to get out of the car, and drove away with King’s legs hanging out of the

passenger side door. Witnesses observed the altercation and called the police.

Dunfee drove to King’s residence. The police arrived, and the officer who

interviewed Dunfee noted that he had an odor of alcoholic beverages on his person,

slurred speech, and red and watery eyes. Dunfee refused to take a breath test, so the

police obtained a search warrant for blood and urine samples, which was executed later

that evening. Testing revealed that Dunfee had an alcohol concentration equivalent to .20

grams of alcohol per 100 milliliters of blood.

The State charged Dunfee with operating a motor vehicle while driving privileges

are forfeited for life, a Class C felony, operating while intoxicated, a Class A

misdemeanor, operating a vehicle with at least 0.15 grams of alcohol per one hundred

milliliters of blood, a Class A misdemeanor, Ind. Code § 9-30-5-1 (2001), and being a

habitual substance offender. Dunfee pleaded guilty without a plea agreement.

The trial court accepted Dunfee’s guilty plea and sentenced him to eight years for

operating a motor vehicle while driving privileges are forfeited for life and one year for

operating while intoxicated. The trial court declined to enter a sentence on the charge of

operating a vehicle with at least 0.15 grams of alcohol per hundred milliliters of blood,

citing double jeopardy concerns. Next, the trial court enhanced Dunfee’s sentence for

operating while intoxicated by five years based on the habitual substance offender

3 enhancement, for a total sentence of six years on that charge. The trial court ordered

Dunfee to serve his sentences consecutively, for an aggregate sentence of fourteen years,

with six years suspended to probation. Finally, the trial court ordered Dunfee to pay

$2,274.45 to State Farm Insurance Company as restitution for damage to King’s mother’s

car. This appeal followed.

DISCUSSION AND DECISION

I. CONSECUTIVE SENTENCES

Dunfee argues that the trial court erred by ordering him to serve his sentence for

operating a motor vehicle while privileges are forfeited for life consecutively to his

sentence for operating while intoxicated in a manner endangering a person, which was

enhanced because he is a habitual substance offender. Specifically, Dunfee contends that

his sentence for operating a motor vehicle while privileges are forfeited for life is “akin to

a habitual offender enhancement,” Appellant’s Br. p. 7, and that trial courts may not

order defendants to serve two enhanced sentences consecutively.

Our Supreme Court has stated, “So long as the sentence is within the statutory

range, it is subject to review only for abuse of discretion.” Anglemyer v. State, 868

N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). 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. The legislature prescribes penalties for crimes, and the trial court’s

discretion does not extend beyond the statutory limits. Ratliff v. State, 741 N.E.2d 424,

431 (Ind. Ct. App. 2000), trans. denied.

4 When sentencing a defendant for multiple convictions, “the court shall determine

whether terms of imprisonment shall be served concurrently or consecutively.” Ind.

Code § 35-50-1-2(c) (2008). Dunfee is correct that a trial court cannot order consecutive

habitual offender sentences. Breaston v. State, 907 N.E.2d 992, 994 (Ind. 2009).

However, we reject Dunfee’s claim that his conviction for operating a motor vehicle

while privileges are forfeited for life is similar to a habitual offender determination. Our

Supreme Court has distinguished the general habitual offender enhancement, which is

governed by Indiana Code section 35-50-2-8 (2005), from “progressive penalty statutes,”

in which the seriousness of a particular charge can be elevated “if the person charged has

been convicted of a particular offense.” Beldon v. State, 926 N.E.2d 480, 482 (Ind.

2010). In Beldon, our Supreme Court specifically identified the offense of operating a

motor vehicle while privileges are forfeited for life as an example of a progressive

penalty offense. See id. at 482-83 (citing Ind. Code § 9-30-10-17). Consequently,

Dunfee’s claim is without merit, and the trial court did not abuse its discretion by

imposing consecutive sentences upon him.

II. APPROPRIATENESS OF SENTENCE

Dunfee asks this Court to decrease his sentences and to impose concurrent rather

than consecutive sentences. His request is governed by Indiana Appellate Rule 7(B),

which provides, in relevant part, “The 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.” In

making this determination, we may look to any factors appearing in the record. Calvert

5 v. State, 930 N.E.2d 633, 643 (Ind. Ct. App. 2010). Furthermore, we give due

consideration to the trial court’s decision and its more direct knowledge of the offense

and the offender. See Wilkes v. State, 917 N.E.2d 675, 693 (Ind. 2009) (stating, “As in all

sentencing, . . . we give considerable deference to the ruling of the trial court.”). A

defendant must persuade the appellate court that his or her sentence meets the

inappropriateness standard of review. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

2006).

To assess the appropriateness of the sentence, we look first to the statutory ranges

established for the classes of the offenses. Here, the advisory sentence for a Class C

felony is four years, the shortest sentence is two years, and the longest sentence is eight

years. Ind. Code § 35-50-2-6 (2005). Furthermore, a person convicted of a Class A

misdemeanor may not be sentenced to a term longer than one year. Ind. Code § 35-50-3-

2 (1977). Finally, for a defendant found to be a habitual substance offender, the trial

court may enhance a sentence by no less than three years and no more than eight years.

Ind. Code § 35-50-2-10. Dunfee received an aggregate sentence of fourteen years, with

six years suspended to probation.

Next, we look to the nature of the offense and the character of the offender. The

nature of the offense is found in the details and circumstances of the commission of the

offense and the defendant’s participation. See Treadway v. State, 924 N.E.2d 621, 642

(Ind. 2010) (noting that the defendant’s crimes were “horrific and brutal”). The character

of the offender is found in what we learn of the offender’s life and conduct. See Lindsey

v. State, 916 N.E.2d 230, 241-42 (Ind. Ct. App. 2009) (reviewing the defendant’s

6 criminal history, probation violations, and history of misconduct while incarcerated),

trans. denied.

Our review here of the nature of Dunfee’s crimes shows that he drove a car while

intoxicated at a level that was well over the legal limit. In addition, he acted callously

toward King during the commission of his crimes by forcing her to stay in the car and

driving away while her legs were dangling outside the passenger side door. Furthermore,

Dunfee drove at a high rate of speed, endangering himself, King, and other motorists.

Dunfee’s behavior demonstrates a complete disregard for those around him.

Our review here of Dunfee’s character shows that he has a lengthy criminal

history. He has accrued nine felony convictions, including leaving the scene of an

accident involving injury, operating a motor vehicle with a suspended license, two

convictions for operating a vehicle while intoxicated with a prior conviction, operating a

vehicle after being adjudged a habitual traffic offender, escape, and three counts of

forgery. He has two prior misdemeanor convictions of operating a vehicle while

intoxicated. In addition, in 2002 Dunfee was convicted of being a habitual substance

offender. Furthermore, he has had his probation revoked three times. Dunfee argues that

his current habitual substance offender enhancement and his conviction for operating a

motor vehicle while driving privileges are forfeited for life are based on some of his prior

convictions, and that his criminal history is “somewhat tempered” as a result.

Appellant’s Br. p. 10. We disagree. For purposes of our review of the appropriateness of

Dunfee’s sentence, it reflects very poorly upon him that he continues to commit the same

crimes or related crimes over and over again.

7 Dunfee notes that he received the maximum possible sentence for his Class C

felony conviction and asserts that he is not among “the worst class of offenders.” Id. at

11. In stating that maximum sentences are ordinarily appropriate for the worst offenders,

we refer generally to the class of offenses and offenders that warrant the maximum

punishment. Abbott v. State, 950 N.E.2d 357, 364 (Ind. Ct. App. 2011). This designation

encompasses a considerable variety of offenses and offenders. Id. We concentrate less

on comparing the facts of this case to others, whether real or hypothetical, and more on

focusing on the nature, extent, and depravity of the offense for which the defendant is

being sentenced and what it reveals about his or her character. Id.

In this case, Dunfee has not benefitted from lesser sentences and has repeatedly

violated the terms of probation. In addition, as discussed above, the manner in which

Dunfee committed his current crimes demonstrates disregard for others. Furthermore,

although Dunfee pleaded guilty without the benefit of a plea agreement, during his

sentencing hearing he attempted to shift some of the blame for his criminal conduct to

King. Specifically, he stated that their altercation began when she threw his cellular

phone at him and then subsequently refused to return it. Dunfee further stated that he

drove King to her home because she “was acting insanely irrational,” and King’s mother

and boyfriend “needed to do something about her.” Tr. p. 54. Dunfee’s refusal to accept

full responsibility for his crimes demonstrates that he has failed to learn from his prior

encounters with the criminal justice system. He has failed to persuade us that his

enhanced sentence is inappropriate.

8 III. RESTITUTION

Dunfee argues that there is insufficient evidence to support the trial court’s

restitution order for damage done to King’s mother’s car. The statute that governs

restitution provides, in relevant part:

In addition to any sentence imposed under this article for a felony or misdemeanor, the court may, as a condition of probation or without placing the person on probation, order the person to make restitution to the victim of the crime, the victim’s estate, or the family of a victim who is deceased. The court shall base its restitution order upon a consideration of . . . property damages of the victim incurred as a result of the crime, based on the actual cost of repair . . . .

Ind. Code § 35-50-5-3(a) (2006).

Restitution is a means of impressing upon a criminal defendant the magnitude of

the loss he or she has caused. Lang v. State, 911 N.E.2d 131, 135 (Ind. Ct. App. 2009).

A restitution order must be supported by sufficient evidence of actual loss sustained by

the victim or victims of a crime. Rich v. State, 890 N.E.2d 44, 49 (Ind. Ct. App. 2008),

trans. denied. The loss must come as a direct and immediate result of the criminal acts of

a defendant. Id. at 51. Generally, an order of restitution is within the trial court’s

discretion, and it will be reversed only upon a finding of an abuse of discretion. Lang,

911 N.E.2d at 135.

Here, the insurer of the car at issue submitted a claim for damage to the car,

supported by a mechanic’s estimate. However, the car sustained its damage before

Dunfee drove it. King scraped the right side of the car against a bush as Dunfee stood

near the car, after which Dunfee got into the car and drove off. There is no evidence that

the car sustained any damage while Dunfee was driving. Upon a review of the record, we

9 cannot conclude that the damage to the car was a direct and immediate result of the

crimes with which Dunfee was charged and to which he pleaded guilty. Therefore, the

trial court abused its discretion by ordering Dunfee to pay restitution,

We do not hold that Dunfee is blameless for the damage to King’s mother’s car.

We simply hold that the damage was not the result of the crimes for which he was

convicted. As a result, restitution is inappropriate in this case, and we reverse that

portion of the trial court’s judgment.

CONCLUSION

For the reasons stated above, we affirm the judgment of the trial court in part but

reverse the trial court’s order of restitution.

Affirmed in part and reversed in part.

MATHIAS, J., and BARNES, J., concur.