Toni McClellan v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 28, 2019
• Docket: 19A-CR-11
• 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 Aug 28 2019, 9:18 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ellen M. O’Connor Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Courtney L. Staton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Toni McClellan, August 28, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-11 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Elizabeth A. Christ, Appellee-Plaintiff. Judge Trial Court Cause No. 49G24-1805-F6-16615

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-11 | August 28, 2019 Page 1 of 6 Case Summary [1] Toni McClellan (“McClellan”) pleaded guilty to Operating a Vehicle While

Intoxicated, Endangering a Person, With a Prior Conviction, a Level 6 felony. 1

On appeal, she presents the issue of whether her sentence is inappropriate. We

affirm.

Facts and Procedural History [2] On May 7, 2018, Indiana State Police Trooper Cameron Bottema responded to

a report of a single vehicle crash near Franklin and Indian Creek Roads in

Marion County. McClellan was the sole occupant of the vehicle. She

submitted to a chemical blood alcohol test and was found to have a blood

alcohol content of 0.241 grams of alcohol per 210 liters of breath.

[3] On December 5, 2018, McClellan pleaded guilty to Operating a Vehicle While

Intoxicated, Endangering a Person, with a Prior Conviction. Pursuant to the

plea agreement, the State moved to dismiss a charge of Driving While

Intoxicated, with a blood alcohol content of 0.15 or greater, and agreed to forgo

filing a habitual substance offender allegation against McClellan.

[4] On the same date, McClellan received a sentence of two and one-half years

(910 days). She was ordered to serve 180 days at the Marion County Jail and

1 Ind. Code §§ 9-30-5-2 - 3.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-11 | August 28, 2019 Page 2 of 6 185 days in Marion County Community Corrections Home Detention, with

545 days suspended to probation. Additionally, the trial court advised

McClellan that, upon successful completion of her probationary term,

alternative minimum sentencing might be implemented. McClellan now

appeals.

Discussion and Decision [5] Pursuant to Indiana Code Section 35-50-2-7, a person who commits a Level 6

felony shall be imprisoned for a fixed term of between six months and two and

one-half years, with an advisory sentence of one year. Finding McClellan’s

criminal history to be an aggravating factor, the trial court imposed the

maximum sentence of two and one-half years, but then suspended 545 days to

probation.2 The prior history consisted of one forgery conviction and four

driving while intoxicated convictions. McClellan contends that her sentence is

inappropriate, because she is allegedly a survivor of domestic abuse and no-one

was injured in the single vehicle accident.

[6] Under Indiana Appellate Rule 7(B), 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.” In performing our review, we assess “the

2 The trial court stated that it had given consideration to the fact that McClellan had a difficult and painful divorce the prior year.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-11 | August 28, 2019 Page 3 of 6 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 principal role of such review is

an “attempt to leaven the outliers.” Id. at 1225. Appellate courts thus “reserve

our 7(B) authority for exceptional circumstances.” Taylor v. State, 86 N.E.3d

157, 165 (Ind. 2017).

[7] The “considerable deference” given to the trial court’s sentencing judgment

“should prevail unless overcome by compelling evidence portraying in a

positive light the nature of the offense (such as accompanied by restraint,

regard, and lack of brutality) and the defendant’s character (such as substantial

virtuous traits or persistent examples of good character).” Stephenson v. State, 29

N.E.3d 111, 122 (Ind. 2015) (citing Cardwell, 895 N.E.2d at 1222). In our

review, we can consider whether a portion of the sentence was suspended or

otherwise crafted to provide leniency. Davidson v. State, 926 N.E.2d 1023, 1025

(Ind. 2010).

[8] The nature of the offense involves the details and circumstances of the crime

and the defendant’s participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App.

2017). Here, McClellan operated a vehicle with a blood alcohol content three

times the legal limit.3 She swerved to avoid traffic and her vehicle left the

roadway, endangering herself and potentially other motorists. As she observes,

3 See Ind. Code § 9-30-5-1.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-11 | August 28, 2019 Page 4 of 6 no injuries were reported from the single vehicle accident. Notably, however,

McClellan was not charged with, or sentenced for, an offense having an

element of bodily injury.

[9] The character of the offender is found in what courts learn of the offender’s life

and conduct. Id. McClellan’s decision to plead guilty indicates some

acceptance of responsibility for her actions; however, she also received a

significant benefit when one charge was dismissed and the State agreed to forgo

a habitual substance offender allegation. McClellan advised the trial court that

she had been harassed and abused by a former spouse, and the harassment had

ceased upon the former spouse’s remarriage. But McClellan had been offered

rehabilitative services in the past, without success. She was barely released

from probation on her fourth driving while intoxicated conviction when she

committed the instant fifth offense. This was her third such conviction in two

years. Even so, she was afforded additional leniency in the structure of the

sentence, which includes home detention and probation.

[10] Having reviewed the matter, we conclude that the trial court did not impose an

inappropriate sentence under Appellate Rule 7(B), and the sentence does not

warrant appellate revision. Accordingly, we decline to disturb the sentence

imposed by the trial court.

Conclusion [11] The sentence imposed upon McClellan is not inappropriate.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-11 | August 28, 2019 Page 5 of 6 [12] Affirmed.

Najam, J., and May, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-11 | August 28, 2019 Page 6 of 6