MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 12 2019, 7:19 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 R. Patrick Magrath Curtis T. Hill, Jr. Madison, Indiana Attorney General of Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Phillip Struble, June 12, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2851 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Jonathan N. Appellee-Plaintiff. Cleary, Judge Trial Court Cause No. 15D01-1703-F6-84
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2851 | June 12, 2019 Page 1 of 7 Case Summary [1] Phillip J. Struble appeals his sentence, received pursuant to his guilty plea, for
operating a vehicle as a habitual traffic violator, a Level 6 felony. We affirm.
Issue [2] Struble raises one issue, which we restate as whether his sentence is
inappropriate in light of the nature of his offense and his character.
Facts 1 [3] On October 15, 2016, Struble was on work release at the Dearborn County Jail
serving a sentence on an unrelated case. A community corrections officer at the
Dearborn County Jail called law enforcement and reported that Struble left the
jail for work and was operating a vehicle without a license. A law enforcement
officer conducted a traffic stop and determined that Struble’s license was
suspended for being a habitual traffic violator. Struble was then placed into
custody. The officer impounded the vehicle and conducted an inventory search
of the vehicle. During the inventory, the officer found a plastic bag with white
powder residue that tested positive for hydrocodone.
[4] The State charged Struble with Count I, operating a vehicle as a habitual traffic
violator; and Count II, possession of a narcotic, both Level 6 felonies. On
1 Struble did not obtain the guilty plea hearing transcript for this appeal, and it appears that Struble and the State cite to the probable cause affidavit for the statement of facts in their briefs. We, therefore, will do the same.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2851 | June 12, 2019 Page 2 of 7 October 25, 2017, Struble pleaded guilty to operating a vehicle as a habitual
traffic violator, a Level 6 felony. The remaining count was dismissed.
[5] At sentencing, Struble admitted that, on October 15, 2016, he drove a short
distance from the jail to Ivy Tech Community College. Struble’s fiancée
attended class at Ivy Tech and typically drove Struble to work. Struble’s
intention was to move the vehicle to his fiancée’s location so she could take him
to work.
[6] The trial court sentenced Struble to two years, fully executed. In imposing the
sentence, the trial court found:
As far as the nature of the criminal offense, it’s undisputed that on October fifteenth of two-thousand sixteen, M[r.] Struble was on work release at the Dearborn County Jail serving a sentence on a [sic]. . . unrelated case. The community corrections officers observed him [ ] driving, he was charged with operating as a habitual traffic violator. There was also a white powder in a bag located inside [the] car, that was tested for hydrocodone, a schedule two controlled substance. The Court does note that the State dismissed the drug charge. The Court finds that the culpability of M[r.] Struble is high. To be on work on [sic] release and to be committing a felony while he’s on work release, and the severity of that crime, with his criminal history to be given the opportunity to keep his job and do work release, and to be out committing another felony. The Court does find that the severity of the crime is high. As far as mitigating factors, the Court does consider that he has plead [sic] open to the Court, the dependent children that he does have, and also the mental and physical health that his counsel has shared here this morning. The Court is required to consider the criminal history under Indiana Law. It began as a juvenile history. . . . There was then the adult history . . . . So, there’s been, as stated previously, the Court of Appeals of Indiana | Memorandum Decision 18A-CR-2851 | June 12, 2019 Page 3 of 7 criminal history is extensive. Based upon the extensive criminal history, combined with M[r.] Struble not appearing in Court for a period of nine months on a failure to appear warrant for sentencing, the Court does accept the State’s recommendation, seven hundred and thirty day sentence, none of that time is suspended . . . .
Tr. Vol. I pp. 15-19. Struble now appeals.
Analysis [7] Struble asks that we review and revise his sentence pursuant to Indiana
Appellate Rule 7(B), which 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.” The defendant bears the burden to persuade this court that his
or her sentence is inappropriate. Wilson v. State, 966 N.E.2d 1259, 1266 (Ind.
Ct. App. 2012) (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)),
trans. denied.
[8] In Indiana, trial courts can tailor an appropriate sentence to the circumstances
presented; the trial court’s judgment receives “considerable deference.” Sanders
v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017) (quoting Cardwell v. State, 895
N.E.2d 1219, 1222 (Ind. Ct. App. 2008)), trans. denied. In conducting our
review, we do not look to see whether the defendant’s sentence is appropriate or
“if another sentence might be more appropriate; rather, the question is whether
the sentence imposed is inappropriate.” Sanders, 71 N.E.3d at 844 (citing King
v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008)).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2851 | June 12, 2019 Page 4 of 7 [9] We look to the statutory range established for the classification of the offense.
The sentence for a Level 6 felony ranges from six months to two-and-a-half
years, with an advisory sentence of one year. Ind. Code § 35-50-2-7. Here, the
trial court imposed a two-year fully executed sentence for operating a vehicle as
a habitual traffic violator, a Level 6 felony.
[10] “[T]he advisory sentence is the starting point the Legislature has selected as an
appropriate sentence.” Green v. State, 65 N.E.3d 620, 637-38 (Ind. Ct. App.
2016), trans. denied. A deviation from the advisory sentence, when determining
the appropriateness of a sentence, requires us to examine whether there is
anything more or less egregious about the offense committed by Struble that
“makes it different from the ‘typical’ offense accounted for by the legislature
when it set the advisory sentence.” See Holloway v.
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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 Jun 12 2019, 7:19 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 R. Patrick Magrath Curtis T. Hill, Jr. Madison, Indiana Attorney General of Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Phillip Struble, June 12, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2851 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Jonathan N. Appellee-Plaintiff. Cleary, Judge Trial Court Cause No. 15D01-1703-F6-84
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2851 | June 12, 2019 Page 1 of 7 Case Summary [1] Phillip J. Struble appeals his sentence, received pursuant to his guilty plea, for
operating a vehicle as a habitual traffic violator, a Level 6 felony. We affirm.
Issue [2] Struble raises one issue, which we restate as whether his sentence is
inappropriate in light of the nature of his offense and his character.
Facts 1 [3] On October 15, 2016, Struble was on work release at the Dearborn County Jail
serving a sentence on an unrelated case. A community corrections officer at the
Dearborn County Jail called law enforcement and reported that Struble left the
jail for work and was operating a vehicle without a license. A law enforcement
officer conducted a traffic stop and determined that Struble’s license was
suspended for being a habitual traffic violator. Struble was then placed into
custody. The officer impounded the vehicle and conducted an inventory search
of the vehicle. During the inventory, the officer found a plastic bag with white
powder residue that tested positive for hydrocodone.
[4] The State charged Struble with Count I, operating a vehicle as a habitual traffic
violator; and Count II, possession of a narcotic, both Level 6 felonies. On
1 Struble did not obtain the guilty plea hearing transcript for this appeal, and it appears that Struble and the State cite to the probable cause affidavit for the statement of facts in their briefs. We, therefore, will do the same.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2851 | June 12, 2019 Page 2 of 7 October 25, 2017, Struble pleaded guilty to operating a vehicle as a habitual
traffic violator, a Level 6 felony. The remaining count was dismissed.
[5] At sentencing, Struble admitted that, on October 15, 2016, he drove a short
distance from the jail to Ivy Tech Community College. Struble’s fiancée
attended class at Ivy Tech and typically drove Struble to work. Struble’s
intention was to move the vehicle to his fiancée’s location so she could take him
to work.
[6] The trial court sentenced Struble to two years, fully executed. In imposing the
sentence, the trial court found:
As far as the nature of the criminal offense, it’s undisputed that on October fifteenth of two-thousand sixteen, M[r.] Struble was on work release at the Dearborn County Jail serving a sentence on a [sic]. . . unrelated case. The community corrections officers observed him [ ] driving, he was charged with operating as a habitual traffic violator. There was also a white powder in a bag located inside [the] car, that was tested for hydrocodone, a schedule two controlled substance. The Court does note that the State dismissed the drug charge. The Court finds that the culpability of M[r.] Struble is high. To be on work on [sic] release and to be committing a felony while he’s on work release, and the severity of that crime, with his criminal history to be given the opportunity to keep his job and do work release, and to be out committing another felony. The Court does find that the severity of the crime is high. As far as mitigating factors, the Court does consider that he has plead [sic] open to the Court, the dependent children that he does have, and also the mental and physical health that his counsel has shared here this morning. The Court is required to consider the criminal history under Indiana Law. It began as a juvenile history. . . . There was then the adult history . . . . So, there’s been, as stated previously, the Court of Appeals of Indiana | Memorandum Decision 18A-CR-2851 | June 12, 2019 Page 3 of 7 criminal history is extensive. Based upon the extensive criminal history, combined with M[r.] Struble not appearing in Court for a period of nine months on a failure to appear warrant for sentencing, the Court does accept the State’s recommendation, seven hundred and thirty day sentence, none of that time is suspended . . . .
Tr. Vol. I pp. 15-19. Struble now appeals.
Analysis [7] Struble asks that we review and revise his sentence pursuant to Indiana
Appellate Rule 7(B), which 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.” The defendant bears the burden to persuade this court that his
or her sentence is inappropriate. Wilson v. State, 966 N.E.2d 1259, 1266 (Ind.
Ct. App. 2012) (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)),
trans. denied.
[8] In Indiana, trial courts can tailor an appropriate sentence to the circumstances
presented; the trial court’s judgment receives “considerable deference.” Sanders
v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017) (quoting Cardwell v. State, 895
N.E.2d 1219, 1222 (Ind. Ct. App. 2008)), trans. denied. In conducting our
review, we do not look to see whether the defendant’s sentence is appropriate or
“if another sentence might be more appropriate; rather, the question is whether
the sentence imposed is inappropriate.” Sanders, 71 N.E.3d at 844 (citing King
v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008)).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2851 | June 12, 2019 Page 4 of 7 [9] We look to the statutory range established for the classification of the offense.
The sentence for a Level 6 felony ranges from six months to two-and-a-half
years, with an advisory sentence of one year. Ind. Code § 35-50-2-7. Here, the
trial court imposed a two-year fully executed sentence for operating a vehicle as
a habitual traffic violator, a Level 6 felony.
[10] “[T]he advisory sentence is the starting point the Legislature has selected as an
appropriate sentence.” Green v. State, 65 N.E.3d 620, 637-38 (Ind. Ct. App.
2016), trans. denied. A deviation from the advisory sentence, when determining
the appropriateness of a sentence, requires us to examine whether there is
anything more or less egregious about the offense committed by Struble that
“makes it different from the ‘typical’ offense accounted for by the legislature
when it set the advisory sentence.” See Holloway v. State, 950 N.E.2d 803, 807
(Ind. Ct. App. 2011) (quoting Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App.
2008), trans. denied).
[11] Pursuant to Indiana Appellate Rule 7(B), we first review the nature of Struble’s
offense. As the trial court observed:
To be on work on [sic] release and to be committing a felony while he’s on work release, and the severity of that crime, with his criminal history to be given the opportunity to keep his job and do work release, and to be out committing another felony. The Court does find that the severity of the crime is high.
Tr. Vol. I p. 16. Regardless of his assertion that he drove only a short distance,
Struble was an inmate on work release when he drove away from jail, knowing
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2851 | June 12, 2019 Page 5 of 7 that he was a habitual traffic violator without a valid license. Upon searching
the vehicle, officers found a plastic bag with white powder residue that tested
positive for hydrocodone.
[12] Next, we consider Struble’s character. “When considering the character of the
offender, one relevant fact is the defendant’s criminal history.” Garcia v. State,
47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied. Struble has a lengthy
criminal history that began in 1992, which does not reflect well upon his
character. As a juvenile, Struble was adjudicated as a delinquent for acts that
would be considered: (1) criminal mischief, (2) operating a vehicle without ever
receiving a license, (3) two counts of illegal consumption of alcohol by a minor,
(4) theft, and (5) possession of marijuana, if committed by an adult. Struble
also has an extensive adult criminal record, which includes fifteen convictions
in Indiana and Ohio. As of the date of the presentence investigation report,
Struble had six pending causes in Ohio. He has failed to conform his actions in
response to more lenient sentencing options, with multiple probation
revocations and work release violations. In the instant case, Struble was serving
a work release sentence when he committed the instant felony. Additionally,
Struble had an outstanding failure to appear warrant for nine months for
sentencing in the present case.
[13] Struble’s criminal history demonstrates a substantial disregard for the criminal
justice system. While Struble’s entry of a guilty plea may reflect well upon his
character, and the trial court noted Struble’s dependent children and his mental
and physical health as mitigating factors, these factors do not outweigh his
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2851 | June 12, 2019 Page 6 of 7 extensive criminal history. Struble has not convinced us that his two-year
sentence is inappropriate in light of the nature of his offense and his character.
Conclusion [14] Struble has failed to demonstrate that his sentence is inappropriate in light of
the nature of his offense and his character. We affirm.
[15] Affirmed.
Crone, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2851 | June 12, 2019 Page 7 of 7