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 establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEVEN KNECHT GREGORY F. ZOELLER Vonderheide & Knecht, P.C. Attorney General of Indiana Lafayette, Indiana KARL M. SCHARNBERG Deputy Attorney General Indianapolis, Indiana FILED Jan 19 2012, 9:34 am
IN THE CLERK COURT OF APPEALS OF INDIANA of the supreme court, court of appeals and tax court
STACEY L. CERTAIN, ) ) Appellant-Defendant, ) ) vs. ) No. 91A02-1106-CR-546 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE WHITE SUPERIOR COURT The Honorable Robert B. Mrzlack, Judge Cause No. 91D01-1011-FC-142
January 19, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge Stacey L. Certain appeals his sentence for operating a motor vehicle after
forfeiture of license for life as a class C felony. Certain raises one issue, which we restate
as whether his sentence is inappropriate. We reverse and remand.
The relevant facts follow. On November 15, 2010, Deputy David Rozzi stopped a
vehicle driven by Certain for failure to signal a turn. Deputy Rozzi checked the records
of the Bureau of Motor Vehicles (the “BMV”) and discovered that Certain’s license was
suspended as a habitual traffic violator for life.
On November 17, 2010, the State charged Certain with operating a motor vehicle
after forfeiture of license for life as a class C felony. On February 17, 2011, Certain pled
guilty as charged.1 At the sentencing hearing, Certain testified that he would have lost
his job if he had not gone to work on November 15, 2010, and that he drove because his
sister, mother, and mother’s companion could not give him a ride. At the time of the
offense, Certain lived in Monticello, Indiana, and worked in Dayton, Indiana. Certain
testified that he did not live closer to where he was employed because he had just been
released from prison and could not yet afford to do so. In his version of the offense
attached to the presentence investigation report (the “PSI”), Certain states that he did not
have a ride to work on November 15, 2010, that he had called everyone he knew for a
ride and no one could do it, that he had recently obtained custody of his daughter, that he
really needed the work to support his daughter, that he did not want to lose the only work
he was getting at the time, that he “broke down and drove to work,” and that he was 1 The February 17, 2011 entry in the chronological case summary and court’s order dated February 17, 2011, indicate that Certain pled guilty pursuant to a plea agreement. The transcript of the February 17, 2011 hearing indicates that “there is no agreement” and that “the Court shall have complete discretion.” Transcript at 4.
2 stopped on his way home. Appellant’s Appendix at 40. Certain further states that, since
he obtained custody of his daughter, his daughter is attending school and is receiving
considerably higher grades.
The court found as aggravating circumstances Certain’s criminal history, the fact
that Certain was on probation at the time of the offense, and that attempts at probation
and community corrections failed to change Certain’s attitude and behavior toward
criminal activity. The court also noted that Certain was over $40,000 in arrears in child
support and that most of that amount can probably be attributed to his prior criminal
record and incarceration. The court found as mitigating circumstances the facts that
Certain pled guilty without the benefit of a written plea agreement and that he expressed
a willingness to change his life and behavior and do the right thing for his daughter. The
court noted that there were no indications of drug use or abuse for the last couple of
years. The court also noted that in 1996 a conviction for operating as a habitual traffic
violator was reduced from a D felony to a class A misdemeanor, which is typically done
to avoid a lifetime license suspension, but that he received another conviction for
operating while a habitual traffic violator in 2001 which led to a lifetime license
suspension by the BMV. The court found that the aggravating circumstances outweighed
the mitigating circumstances and sentenced Certain to five years to be served in the
Indiana Department of Correction.
The issue is whether Certain’s sentence is inappropriate. Indiana Appellate Rule
7(B) provides that this court “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
3 light of the nature of the offense and the character of the offender.” Under this rule, the
burden is on the defendant to persuade the appellate court that his or her sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
Certain argues that the offense to which he pled guilty occurred as he was driving
home from work and that he generally arranged a ride to work from a family member but
that none were available that day. Certain argues that he was cooperative and polite
when stopped by Deputy Rozzi. Certain argues that “[n]o traffic accident occurred as a
result of [his] driving, so no one was hurt” and that “[t]his is far from being the worst
offense.” Appellant’s Brief at 11. Certain further maintains that three of his six prior
felony convictions involved drug possession and that due to the convictions he spent
some time in jail which has made it difficult for him to stay current on his child support
obligation. Certain asserts that he recognizes that he needs to become a more responsible
parent, that he had been making progress, that he recently gained custody of his daughter,
and that her school attendance and grades improved markedly after she moved in with
him. Certain asserts that he has not used drugs or alcohol since May 2008 and that he has
been employed on and off for at least ten years by a contractor who had informed the trial
court that he would hire Certain again. Certain argues that although he has a lengthy
criminal history, the crimes are not egregious and that he has been putting his life on the
right track. Certain requests that his sentence be reduced to the advisory term of four
years.
The State argues that Certain’s offense “is not terribly egregious as it is a typical
operating a motor vehicle after forfeiture of license for life” but that, nevertheless,
4 Certain’s “character demands the imposition of an enhanced sentence, given [Certain’s]
lengthy criminal history, pattern of similar offenses and continuous failure to
rehabilitate.” Appellee’s Brief at 5. The State asserts that Certain has an extensive
criminal history over twenty-two years, which includes multiple convictions involving
the operation of a motor vehicle. The State maintains that Certain “has failed to show
that he can live in society and follow the rules when given opportunities.” Id. at 6. The
State argues that Certain has had his probation revoked four times, that there is a class D
felony theft charge pending in Tippecanoe County, and that the Indiana Judicial Center’s
Risk Assessment indicates Certain needs a high level of supervision. The State further
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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 establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEVEN KNECHT GREGORY F. ZOELLER Vonderheide & Knecht, P.C. Attorney General of Indiana Lafayette, Indiana KARL M. SCHARNBERG Deputy Attorney General Indianapolis, Indiana FILED Jan 19 2012, 9:34 am
IN THE CLERK COURT OF APPEALS OF INDIANA of the supreme court, court of appeals and tax court
STACEY L. CERTAIN, ) ) Appellant-Defendant, ) ) vs. ) No. 91A02-1106-CR-546 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE WHITE SUPERIOR COURT The Honorable Robert B. Mrzlack, Judge Cause No. 91D01-1011-FC-142
January 19, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge Stacey L. Certain appeals his sentence for operating a motor vehicle after
forfeiture of license for life as a class C felony. Certain raises one issue, which we restate
as whether his sentence is inappropriate. We reverse and remand.
The relevant facts follow. On November 15, 2010, Deputy David Rozzi stopped a
vehicle driven by Certain for failure to signal a turn. Deputy Rozzi checked the records
of the Bureau of Motor Vehicles (the “BMV”) and discovered that Certain’s license was
suspended as a habitual traffic violator for life.
On November 17, 2010, the State charged Certain with operating a motor vehicle
after forfeiture of license for life as a class C felony. On February 17, 2011, Certain pled
guilty as charged.1 At the sentencing hearing, Certain testified that he would have lost
his job if he had not gone to work on November 15, 2010, and that he drove because his
sister, mother, and mother’s companion could not give him a ride. At the time of the
offense, Certain lived in Monticello, Indiana, and worked in Dayton, Indiana. Certain
testified that he did not live closer to where he was employed because he had just been
released from prison and could not yet afford to do so. In his version of the offense
attached to the presentence investigation report (the “PSI”), Certain states that he did not
have a ride to work on November 15, 2010, that he had called everyone he knew for a
ride and no one could do it, that he had recently obtained custody of his daughter, that he
really needed the work to support his daughter, that he did not want to lose the only work
he was getting at the time, that he “broke down and drove to work,” and that he was 1 The February 17, 2011 entry in the chronological case summary and court’s order dated February 17, 2011, indicate that Certain pled guilty pursuant to a plea agreement. The transcript of the February 17, 2011 hearing indicates that “there is no agreement” and that “the Court shall have complete discretion.” Transcript at 4.
2 stopped on his way home. Appellant’s Appendix at 40. Certain further states that, since
he obtained custody of his daughter, his daughter is attending school and is receiving
considerably higher grades.
The court found as aggravating circumstances Certain’s criminal history, the fact
that Certain was on probation at the time of the offense, and that attempts at probation
and community corrections failed to change Certain’s attitude and behavior toward
criminal activity. The court also noted that Certain was over $40,000 in arrears in child
support and that most of that amount can probably be attributed to his prior criminal
record and incarceration. The court found as mitigating circumstances the facts that
Certain pled guilty without the benefit of a written plea agreement and that he expressed
a willingness to change his life and behavior and do the right thing for his daughter. The
court noted that there were no indications of drug use or abuse for the last couple of
years. The court also noted that in 1996 a conviction for operating as a habitual traffic
violator was reduced from a D felony to a class A misdemeanor, which is typically done
to avoid a lifetime license suspension, but that he received another conviction for
operating while a habitual traffic violator in 2001 which led to a lifetime license
suspension by the BMV. The court found that the aggravating circumstances outweighed
the mitigating circumstances and sentenced Certain to five years to be served in the
Indiana Department of Correction.
The issue is whether Certain’s sentence is inappropriate. Indiana Appellate Rule
7(B) provides that this court “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
3 light of the nature of the offense and the character of the offender.” Under this rule, the
burden is on the defendant to persuade the appellate court that his or her sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
Certain argues that the offense to which he pled guilty occurred as he was driving
home from work and that he generally arranged a ride to work from a family member but
that none were available that day. Certain argues that he was cooperative and polite
when stopped by Deputy Rozzi. Certain argues that “[n]o traffic accident occurred as a
result of [his] driving, so no one was hurt” and that “[t]his is far from being the worst
offense.” Appellant’s Brief at 11. Certain further maintains that three of his six prior
felony convictions involved drug possession and that due to the convictions he spent
some time in jail which has made it difficult for him to stay current on his child support
obligation. Certain asserts that he recognizes that he needs to become a more responsible
parent, that he had been making progress, that he recently gained custody of his daughter,
and that her school attendance and grades improved markedly after she moved in with
him. Certain asserts that he has not used drugs or alcohol since May 2008 and that he has
been employed on and off for at least ten years by a contractor who had informed the trial
court that he would hire Certain again. Certain argues that although he has a lengthy
criminal history, the crimes are not egregious and that he has been putting his life on the
right track. Certain requests that his sentence be reduced to the advisory term of four
years.
The State argues that Certain’s offense “is not terribly egregious as it is a typical
operating a motor vehicle after forfeiture of license for life” but that, nevertheless,
4 Certain’s “character demands the imposition of an enhanced sentence, given [Certain’s]
lengthy criminal history, pattern of similar offenses and continuous failure to
rehabilitate.” Appellee’s Brief at 5. The State asserts that Certain has an extensive
criminal history over twenty-two years, which includes multiple convictions involving
the operation of a motor vehicle. The State maintains that Certain “has failed to show
that he can live in society and follow the rules when given opportunities.” Id. at 6. The
State argues that Certain has had his probation revoked four times, that there is a class D
felony theft charge pending in Tippecanoe County, and that the Indiana Judicial Center’s
Risk Assessment indicates Certain needs a high level of supervision. The State further
argues that the probation department determined that Certain is unqualified for work
release privileges and monitored home detention because of his lack of acceptable full-
time employment, lack of transportation, inability to meet his financial obligations, and
pending legal issues in Noble, Benton and Tippecanoe Counties.
Our review of the nature of the offense reveals that Certain was stopped by Deputy
Rozzi in November 2010 for failure to signal and that at the time his license was
suspended as a habitual traffic violator for life. Certain was stopped on his way home
from work in Dayton, Indiana, to Monticello, Indiana. According to Certain, he did not
have a ride to work, had called everyone he knew for a ride and no one could help him,
and would have lost his job if he had not gone to work on November 15, 2010. Deputy
Rozzi noted in his report that Certain was very cooperative and polite.
Our review of the character of the offender reveals that, in addition to several
misdemeanor offenses, Certain’s criminal history includes six felony offenses, which
5 consists of possession of marijuana with a prior conviction as a class D felony in 1997,
possession of a schedule IV controlled substance as a class D felony in 1998, operating a
vehicle after being adjudged as a habitual traffic violator as a class D felony in 2001,
escape as a class D felony in 2002, non-support of dependent child as a class C felony in
2007, and possession of cocaine as a class D felony in 2008. Certain previously violated
the terms of his probation and was on probation at the time of the offense in this case.
However, we note, as the trial court observed, that since 2008 Certain has not been
charged with any drug-related offenses and that he pled guilty without the benefit of a
plea agreement. Further, Certain had recently obtained custody of his daughter and, since
the time his daughter moved in with him, she is attending school and receiving
considerably higher grades. Certain also testified that he did not live closer to where he
was employed because he had just been released from prison and could not yet afford to
do so.
After due consideration, we conclude that Certain has met his burden of
establishing that his enhanced five year sentence is inappropriate in light of the nature of
the offense and his character. Pursuant to Appellate Rule 7(B), we exercise our authority
to revise Certain’s sentence to the advisory sentence of four years and remand with
instructions to resentence him accordingly.
Reversed and remanded.
MAY, J., and CRONE, J., concur.