Phillip Epperly v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 22, 2020
• Docket: 19A-CR-170
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 22 2020, 8:43 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffrey W. Elftman Curtis T. Hill, Jr. Pauper Counsel Attorney General of Indiana Kokomo, Indiana Benjamin C. Wade Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Phillip Epperly, December 22, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-170 v. Appeal from the Tipton Circuit Court State of Indiana, The Honorable Thomas R. Lett, Appellee-Plaintiff. Judge Trial Court Cause No. 80C01-1505-F5-198

Weissmann, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-170 | December 22, 2020 Page 1 of 5 [2] Phillip Epperly argues he committed a typical reckless homicide, undeserving of

the maximum sentence. But he drove under the influence, totaled his car,

dragged his passenger’s lifeless body away from the wreckage, and attempted to

deflect blame onto her. Finding his six-year sentence is not inappropriate, we

affirm.

Facts [3] Phillip Epperly downed four beers and popped two painkillers. Then he took

his girlfriend, Karla Wolford, for a drive. Sometime before midnight, Epperly

drove through a stop sign, lost control of his vehicle, and hit a tree in his own

front yard. Epperly then dragged an unresponsive Wolford into his home.

When police arrived, Wolford was lying on the floor, covered in blood. She was

pronounced dead at the scene. Epperly initially told police Wolford had been

driving, but he later admitted responsibility for the crash.

[4] Four years after Wolford’s death, Epperly pleaded guilty to Level 5 felony

reckless homicide. The trial court sentenced him to the statutory maximum, six

years in the Department of Corrections. Epperly now appeals.

Discussion and Decision [5] Epperly argues the trial court abused its discretion in sentencing him to the

statutory maximum and that the sentence is inappropriate in light of his

character and the nature of the offense under Indiana Appellate Rule 7(B). We

address these arguments in turn.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-170 | December 22, 2020 Page 2 of 5 I. Abuse of Discretion [6] Sentencing is a discretionary function of the trial court, which we review only

for an abuse of discretion. Anglemeyer v. State, 868 N.E.2d 482, 490 (Ind. 2007).

A trial court abuses its discretion 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. (quoting K.S. v.

State, 849 N.E.2d 538, 544 (Ind. 2006)). To facilitate our review of sentencing,

the trial court must detail its rationale. Id.

[7] Epperly argues the trial court abused its discretion by improperly counting an

element of the crime as an aggravator in imposing his sentence. See Gomillia v.

State, 13 N.E.3d 846, 852-53 (Ind. 2014) (holding that it is improper as a matter

of law to impose a sentence greater than the advisory sentence because of

material elements of the offense). According to Epperly, the court based its

finding that “a reduced or suspended sentence would depreciate the seriousness

of the crime” on Wolford’s death, which is an element of reckless homicide.

Appellant’s App. Vol. II p. 78.

[8] Epperly paints the trial court’s order with too broad a brush. What makes his

crime exceptional is not that Wolford died but how it happened. Epperly

dragged Wolford’s lifeless body from the wreckage and briefly attempted to

blame her for her own death. The circumstances of the crime—not the resulting

death—are what render this reckless homicide particularly egregious. The trial

Court of Appeals of Indiana | Memorandum Decision 19A-CR-170 | December 22, 2020 Page 3 of 5 court did not use an element of the crime to aggravate Epperly’s sentence and

therefore we find no abuse of discretion.

II. Ind. App. R. 7(B) [9] Next, Epperly challenges his sentence under Indiana Appellate Rule 7(B). Even

when a trial court acts within its discretion in sentencing, independent appellate

review and revision is permitted. Anglemeyer, 868 N.E.2d at 491 (quoting

Childress, 848 N.E.2d 1073,1080 Ind. 2006)). This 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.” Ind. App. R. 7(B). We conduct this review

with “substantial deference” to the trial court because the “principal role of

[our] review is to attempt to leaven the outliers, and not to achieve a perceived

correct sentence.” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014) (quotations

and citations omitted).

[10] Epperly argues his commission of reckless homicide was not particularly

heinous and therefore undeserving of the maximum sentence. In doing so, he

disregards the tragic circumstances of Wolford’s death as detailed above. For

the reasons articulated in Part I of this opinion, we cannot find the trial court

erred in weighing of the nature of the offense.

[11] Epperly also argues the nature of his character supports a lighter sentence. He

points out that his prior convictions were ten and twenty years ago, and neither

resulted in injury to another person. But even a minor criminal history can

Court of Appeals of Indiana | Memorandum Decision 19A-CR-170 | December 22, 2020 Page 4 of 5 “speak poorly to [a defendant’s] character.” Quintanilla v. State, 146 N.E.3d 982,

989 (Ind. Ct. App. 2020). Additionally, Epperly’s prior convictions were both

related to substance abuse, which he failed to address. He cites his history of

drug abuse as a mitigating factor without acknowledging his failure to seek help

for his addiction. A trial court does not abuse its discretion in considering drug

abuse, especially drug abuse that is allowed to continue unabated, to be an

aggravator at sentencing. See, e.g., Mehringer v. State, 152 N.E.3d 667, 676 (Ind.

Ct. App. 2020) (observing that treatment for alcohol abuse is not necessarily

evidence of good character if it was only sought after letting the problem “get

out of control”). Though Epperly contends his unresolved addiction should be

considered mitigating, his drug use and his failure to address his addiction

contributed to his girlfriend’s death. In light of these considerations, Epperly

has failed to persuade us he has a redeeming character demanding of sentencing

relief.

[12] As the trial court did not abuse its discretion or enter an inappropriate sentence,

the trial court’s judgment is affirmed.

Mathias, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-170 | December 22, 2020 Page 5 of 5