Nick Adams v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 30, 2015
• Docket: 49A02-1506-CR-535
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Dec 30 2015, 6:19 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kimmerly A. Klee Gregory F. Zoeller Greenwood, Indiana Attorney General of Indiana Karl Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Nick Adams, December 30, 2015 Appellant-Defendant, Court of Appeals Case No. 49A02-1506-CR-535 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Jeffrey Marchal, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G06-1502-F5-6560

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-535 | December 30, 2015 Page 1 of 6 Case Summary and Issue [1] Following a jury trial, Nick Adams was convicted of operating a vehicle while

privileges are forfeited for life, a Level 5 felony. The trial court sentenced him

to four years executed in the Department of Correction. Adams appeals,

raising the sole issue of whether his sentence is inappropriate in light of the

nature of the offense and his character. Concluding Adams’ sentence is not

inappropriate, we affirm.

Facts and Procedural History [2] On February 23, 2015, Jeremy Heidrich was driving in Indianapolis,

northbound on I-65, when he observed a burgundy Ford Taurus traveling at a

high rate of speed in the same direction. As the Taurus approached a curve, the

driver of the Taurus lost control of the car and struck the rear end of a red

Chevy pickup truck driven by Ed Woods. The impact caused the pickup truck

to spin out and hit the retaining wall.

[3] The Taurus did not stop and continued northbound away from the accident.

Heidrich followed the Taurus and eventually pulled alongside it. Heidrich

yelled for the driver of the Taurus to pull over and attempted to photograph the

driver. The male driver noticed Heidrich’s attempt and obscured his face, but

Heidrich was still able to photograph the car and its license plate. Eventually,

the Taurus exited on the Washington Street ramp and turned right. Heidrich

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-535 | December 30, 2015 Page 2 of 6 also exited at Washington Street but immediately reentered I-65 to return to the

scene of the accident.

[4] When Heidrich arrived at the scene of the accident, he exited his vehicle to

speak with Woods. A few minutes later, Indiana State Police Trooper Michael

Meinczinger pulled in behind Woods’ pickup truck. After speaking with

Woods, Trooper Meinczinger spoke with Heidrich. Heidrich relayed his

observations and showed Trooper Meinczinger the photos of the Taurus.

Trooper Meinczinger ran the license plate number and discovered the Taurus

was registered to Theresa Russell. During their conversation, roughly fifteen

minutes after the accident, the Taurus pulled in behind Trooper Meinczinger’s

patrol car. An elderly woman was driving the Taurus.

[5] Adams exited the Taurus, approached Trooper Meinczinger, and identified the

driver as his mother, Theresa Russell. Adams stated his mother was driving the

Taurus at the time of the accident. Trooper Meinczinger walked over to the

Taurus to speak with Russell. At some point, Adams interrupted their

conversation and admitted he was an habitual traffic violator.

[6] Trooper Meinczinger arrested Adams, and the State charged Adams with

operating a vehicle while privileges are forfeited for life, a Level 5 felony. A

jury trial was held on May 6, 2015. The jury found Adams guilty as charged,

and the trial court sentenced him to four years executed in the Department of

Correction. This appeal followed.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-535 | December 30, 2015 Page 3 of 6 Discussion and Decision I. Standard of Review [7] Adams contends his sentence is inappropriate in light of the nature of the

offense and his character. He argues the trial court “levied a ‘trial tax’” against

him because the imposed sentence “surpassed the harshest executed sentence

proposed by the State” during plea negotiations. Brief of Appellant at 6-7.1

[8] Indiana Appellate Rule 7(B) provides, “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.” Whether we regard a sentence as

inappropriate turns on “the culpability of the defendant, the severity of the

crime, the damage done to others, and myriad other factors that come to light

in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The

defendant bears the burden of persuading this court that his or her sentence is

inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

II. Inappropriate Sentence [9] As to the nature of the offense, the advisory sentence is the starting point the

legislature has selected as an appropriate sentence for the crime committed. Id.

at 1081. Adams was convicted of operating a vehicle while privileges are

1 Prior to trial, the trial court asked the prosecutor to explain Adams’ “options.” Transcript at 4. In doing so, the prosecutor recounted the terms of the four different plea offers extended to Adams.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-535 | December 30, 2015 Page 4 of 6 forfeited for life, a Level 5 felony. A Level 5 felony carries a possible sentence

of one to six years, with an advisory sentence of three years. Ind. Code § 35-50-

2-6(b). Here, the trial court sentenced Adams to four years executed in the

Department of Correction.

[10] We conclude the nature of the offense supports the sentence imposed. In

addition to driving when he was prohibited from doing so, Adams caused an

accident, fled the scene of the accident, and attempted to evade prosecution by

shifting the blame to his mother, who was undergoing treatment for cancer. See

Tr. at 115.

[11] As to Adams’ character, his criminal history includes ten felony and nine

misdemeanor convictions as an adult, as well as five true findings as a juvenile.

He has prior felony convictions for operating a vehicle while privileges are

forfeited for life, operating a vehicle while suspended as an habitual traffic

violator, and operating a vehicle while intoxicated. Adams’ Bureau of Motor

Vehicles Record reveals his driver’s license has been suspended thirty-five times

since 1990. See Appellant’s Appendix at 16-22. In short, Adams has repeatedly

demonstrated he cannot operate a vehicle safely and in compliance with the

law, but he continues to drive and endanger the public.

[12] Both the nature of the offense and Adams’ character support the sentence

imposed by the trial court. And the fact that Adams may have received a

shorter sentence had he pleaded guilty does not show the trial court penalized

Adams for going to trial. See Pauley v. State, 668 N.E.2d 1212, 1213 (Ind. 1996)

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-535 | December 30, 2015 Page 5 of 6 (noting leniency in sentencing is a constitutionally permissible incentive for a

defendant to enter a plea agreement). To the extent Adams argues the trial

court imposed a harsher sentence because he exercised his right to a jury trial,

we find no support for this contention in the record. See Corcoran v. State, 739

N.E.2d 649, 654 (Ind. 2000) (requiring a specific showing that a sentence was

improperly influenced by a defendant’s exercise of his right to a jury trial).

Conclusion [13] Adams’ sentence is not inappropriate in light of the nature of the offense and

his character. We therefore affirm his sentence of four years executed in the

[14] Affirmed.

Barnes, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-535 | December 30, 2015 Page 6 of 6