Mouhamadou M. Sow v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 19, 2017
• Docket: 32A05-1707-CR-1692
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Dec 19 2017, 10:17 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Mouhamadou M. Sow, December 19, 2017 Appellant-Defendant, Court of Appeals Case No. 32A05-1707-CR-1692 v. Appeal from the Hendricks Superior Court State of Indiana, The Honorable Rhett M. Stuard, Appellee-Plaintiff. Judge Trial Court Cause No. 32D02-1604-F3-20

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 32A05-1707-CR-1692 | December 19, 2017 Page 1 of 10 Statement of the Case [1] Mouhamadou Sow (“Sow”) appeals his convictions, entered following a guilty

plea, for Level 3 felony operating a motor vehicle while intoxicated (“OVWI”)

causing serious bodily injury and leaving the scene 1 and two counts of Level 6

felony OVWI causing serious bodily injury.2 On appeal, he argues that the trial

court abused its discretion by failing to consider a mitigating factor and that his

sentence was inappropriate. Because we find that the trial court did not abuse

its discretion and that Sow’s sentence was not inappropriate, we affirm the trial

court’s decision.

[2] We affirm.

Issues 1. Whether the trial court abused its discretion when it sentenced Sow.

2. Whether Sow’s sentence was inappropriate.

Facts [3] Around 8 a.m. on April 16, 2016, Sow was driving westbound on U.S. 40 near

Plainfield when he crossed the double yellow line into oncoming traffic. Nikki

Shoultz (“Shoultz”) was driving eastbound in the lane that Sow entered and

1 IND. CODE § 9-26-1-1.1(a)(2). 2 I.C. § 9-30-5-4(a)(1).

Court of Appeals of Indiana | Memorandum Decision 32A05-1707-CR-1692 | December 19, 2017 Page 2 of 10 was unable to avoid his car as there were cars in the lane next to her. As a

result, Sow collided into Shoultz’s car, head-on and going full speed.

[4] Shoultz’s thirteen-year-old daughter and her daughter’s thirteen-year-old friend,

Brooke (“Brooke”), were in the backseat of Shoultz’s car at the time of the

crash. After the crash, Shoultz exited the car to check on both of the teenagers

and saw that Brooke’s face was covered in blood. Brooke’s face had hit the side

of the arm rest in the back seat, and she had lost two of her front, permanent

teeth. However, both teenagers were able to walk, and Shoultz took them to

the side of the road where Sow was already sitting.

[5] A witness who had seen the crash called 9-1-1. When police and ambulance

personnel started to arrive, Sow got up and started “walking briskly” up a

nearby hill. (Tr. Vol. 2 at 18). He then hid from police officers until he was

finally intercepted by a K-9 officer and surrendered himself.

[6] Once Sow was in police custody, Corporal Zach Gadawski (“Corporal

Gadawski”) with the Plainfield Police Department detected an “odor of

marijuana about him.” (Tr. Vol. 2 at 29). Corporal Gadawski conducted a pat

down search and discovered a small bag of a “green leafy substance” that later

tested positive for marijuana in Sow’s front pocket. (Tr. Vol. 2 at 30). Officers

also discovered several Budweiser beer cans in the back of Sow’s vehicle and

noticed that Sow had “red and watery eyes” and “slurred speech.” (Tr. Vol. 2

at 30). Corporal Gadawski took Sow for a blood draw, and the blood draw

showed that Sow had marijuana in his system and a blood alcohol content of

Court of Appeals of Indiana | Memorandum Decision 32A05-1707-CR-1692 | December 19, 2017 Page 3 of 10 0.148. Sow told Corproal Gadawski that he had run from the police because he

supported his family and could not go to jail. In addition, at no point did Sow

ask how Shoultz or the children were or express any concern for them.

[7] Shoultz and the children were taken to the hospital, where it was determined

that Brooke had lost her two front teeth. An orthodontic specialist later told

Brooke that she would not be able to replace her missing teeth with implants

until she reached the approximate age of eighteen and stopped growing.

Shoultz sustained bruising along her abdomen and chest that took three to four

months to heal, as well as bruises to the bone marrow of her left leg.

[8] On April 18, 2016, the State charged Sow with Level 3 felony OVWI causing

serious bodily injury and leaving the scene of the accident; Class A

misdemeanor OVWI; Class B misdemeanor public intoxication and

endangering another person; and three traffic infractions. On December 2,

2016, the State amended the charging information and charged Sow with the

following additional counts: two counts of Level 6 felony OVWI causing

serious bodily injury; two counts of Level 6 felony operating per se (drugs)

causing serious bodily injury; and Class B misdemeanor possession of

marijuana.

[9] On June 23, 2017, Sow pled guilty to Level 3 felony OVWI causing serious

bodily injury and leaving the scene and two counts of Level 6 felony OVWI

causing serious bodily injury. In exchange, the State dismissed the remaining

charges and agreed that Sow would have a sentencing cap of nine (9) years for

Court of Appeals of Indiana | Memorandum Decision 32A05-1707-CR-1692 | December 19, 2017 Page 4 of 10 his Level 3 felony and two and one half (2½) years each for his Level 6 felonies,

with all sentences to be served concurrently.

[10] Subsequently, the trial court accepted the plea agreement and held a sentencing

hearing. At the hearing, Shoultz testified that Brooke had undergone a number

of procedures as a result of her injuries. According to Shoultz, Brooke now

wears temporary teeth and has a speech impediment. Shoultz also testified that

her daughter gets “very very upset” when she sees accidents and remembers the

“trauma of that day . . . .” (Tr. Vol. 2 at 26).

[11] Next, Sow spoke at the sentencing hearing and explained that he is an

immigrant from Senegal who has lived in the United States since 2013. His

wife, who is an American citizen, had separated from him in 2014 as a result of

his drinking problems. At the time of the sentencing hearing, according to Sow,

he was “just short of being able to obtain citizenship,” in terms of his time in

the United States, but was no longer going to be able to obtain citizenship

because of his convictions. (Tr. Vol. 2 at 46). Sow testified that it was his

understanding that he was instead going to be deported.

[12] With respect to his criminal history, Sow acknowledged that he had previously

been charged with disorderly conduct and public intoxication in another cause.

In October 2015, he had entered into a pre-trial diversion agreement, and that

agreement had been pending when he committed the current offenses.

[13] Sow’s Alcoholics Anonymous (“AA”) sponsor also testified at the sentencing

hearing and said that Sow had been attending AA meetings twice a week since

Court of Appeals of Indiana | Memorandum Decision 32A05-1707-CR-1692 | December 19, 2017 Page 5 of 10 October of 2016. During this time, the sponsor had seen Sow show “a real

desire to stay sober.” (Tr. Vol. 2 at 39). He also noted that Sow had not

relapsed at all during that time.

[14] At the conclusion of the sentencing hearing, the trial court sentenced Sow to an

executed term of four (4) years for his Level 3 felony OVWI causing serious

bodily injury and leaving the scene conviction and to two and one half (2½)

years for each of his Level 6 felony OVWI causing serious bodily injury

convictions. The trial court also ordered the sentences to be served

concurrently. Thus, the trial court imposed an aggregate sentence of four (4)

years, which was less than the term allowed by Sow’s plea agreement.

[15] In support of this sentence, the court found as aggravating factors that: (1) the

injuries sustained by the victims were greater than necessary to prove the

offenses, including “a very severe injury to a thirteen-year-old girl;” (2) Sow had

a pending pre-trial diversion agreement at the time of his offense; and (3) Sow

had a recent criminal history at the time of the offense. As mitigating factors,

the trial court found that Sow had: (1) “[led] primarily a law-abiding life;” (2)

was likely to respond to probation and short-term imprisonment; and (3) was

remorseful for his actions. (Tr. Vol. 2 at 62). The trial court also noted,

the taxpayers in the State of Indiana are going to house Mr. Sow, [] pay for his food and clothing, shelter and all that, [] depending on how long [] I [choose] to sentence him for. And then as a result of that he’s going to be deported back to Senegal and it, . . . there’s a part of me that says . . . why should the taxpayers foot that bill if he’s going to be leaving the United States[?]

Court of Appeals of Indiana | Memorandum Decision 32A05-1707-CR-1692 | December 19, 2017 Page 6 of 10 (Tr. Vol. 2 at 61). Sow now appeals his sentence.

Decision [16] On appeal, Sow argues that: (1) the trial court abused its discretion when it

sentenced him because it failed to consider one of his proffered mitigating

factors; and (2) his sentence was inappropriate in light of the nature of his

offenses and his character. We will address each of these issues in turn.

1. Mitigating Factors

[17] First, Sow argues that the trial court abused its discretion when it sentenced him

because it failed to identify his inevitable deportation as a mitigating factor as

he had requested. Sentencing decisions rest within the sound discretion of the

trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g

875 N.E.2d 218 (Ind. 2007). So long as the sentence is within the statutory

range, it is subject to review only for an abuse of discretion. Id. We will find an

abuse of discretion where 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. A trial 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.

Court of Appeals of Indiana | Memorandum Decision 32A05-1707-CR-1692 | December 19, 2017 Page 7 of 10 [18] Although a sentencing court must consider all evidence of mitigating factors

offered by a defendant, the finding of mitigating factors rests within the court’s

discretion. Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002). A trial court is

neither required to find the presence of mitigating factors, Fugate v. State, 608

N.E.2d 1370, 1374 (Ind. 1993), nor obligated to explain why it did not find a

factor to be significantly mitigating. Sherwood v. State, 749 N.E.2d 36, 38 (Ind.

2001). A defendant who claims that the trial court failed to find a mitigating

factor must establish that the mitigative evidence was both significant and

clearly supported by the record. Anglemyer, 868 N.E.2d at 493.

[19] Here, the trial court acknowledged the potential that Sow would be deported

but did not find that potential to be a mitigating circumstance. Sow argues that

this decision was an abuse of discretion, but we have previously held that a trial

court is not required to find a defendant’s potential deportation to be a

mitigating factor. See Mendoza v. State, 737 N.E.2d 784, 788 (Ind. Ct. App.

2000) (finding that the trial court did not abuse its discretion when it did not

find that the defendant’s potential deportation was a mitigating factor), reh’g

denied. See also Hunter v. State, 72 N.E.3d 928, 935 (Ind. Ct. App. 2017) (“[T]he

court is neither obligated to accept the defendant’s arguments as to what

constitutes a mitigating factor nor required to give the same weight to a

proposed mitigating factor as does the defendant.”), trans. denied. Because the

trial court was not required to consider Sow’s deportation a mitigating factor,

we conclude that the trial court did not abuse its discretion.

2. Inappropriate Sentence

Court of Appeals of Indiana | Memorandum Decision 32A05-1707-CR-1692 | December 19, 2017 Page 8 of 10 [20] Next, Sow argues that his aggregate four-year executed sentence was

inappropriate in light of the nature of his offenses and his character. Under

Indiana Appellate Rule 7(B), we may revise a sentence if it is inappropriate in

light of the nature of the offense and the character of the offender. The

defendant has the burden of persuading us that his sentence is inappropriate.

Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a

Rule 7(B) review “should be to attempt to leaven the outliers, and identify some

guiding principles for trial courts and those charged with improvement of the

sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “Appellate Rule 7(B)

analysis is not to determine whether another sentence is more appropriate but

rather whether the sentence imposed is inappropriate.” Conley v. State, 972

N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted),

reh’g denied.

[21] When determining whether a sentence is inappropriate, we acknowledge that

the advisory sentence “is the starting point the Legislature has selected as an

appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.

Sow pled guilty to one Level 3 felony and two Level 6 felonies. A Level 3

felony carries a sentencing range of three (3) to sixteen (16) years, with an

advisory sentence of nine (9) years. I.C. § 35-50-2-5. A Level 6 felony carries a

sentencing range of six (6) months to two and one half (2½) years with an

advisory sentence of one (1) year. I.C. § 35-50-2-7. Here, the trial court

Court of Appeals of Indiana | Memorandum Decision 32A05-1707-CR-1692 | December 19, 2017 Page 9 of 10 sentenced Sow to an aggregate of four (4) years, which was five (5) years less

than the advisory term for his three concurrent sentences.

[22] The nature of Sow’s offense involved him driving intoxicated with a blood

alcohol level of 0.148 and marijuana in his system. He crashed into Shoultz’s

car, causing serious injuries to her and her daughter’s friend. Then, instead of

checking to see whether Shoultz and the two children were okay, he attempted

to escape from police.

[23] As for Sow’s character, the State had recently charged Sow with committing

two alcohol-related offenses (disorderly conduct and public intoxication), and

Sow had a pending pre-trial diversion agreement relating to those two charges

at the time of the instant offenses.

[24] In light of these factors, we conclude that the trial court’s sentence was not

inappropriate. Sow seems to suggest that his sentence should reflect evidence of

his good character in the record, including his attempts to seek treatment and

his decision to plead guilty. However, we find that the trial court’s sentence

took his assertion into account. Sow received five years less than the advisory

sentence for his Level 3 felony conviction, meaning that his aggregate sentence

was close to the minimum sentence he could receive. Such a sentence was not

inappropriate in light of the nature of his offenses and his character.

[25] Affirmed.

Kirsch, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 32A05-1707-CR-1692 | December 19, 2017 Page 10 of 10