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 Dec 31 2013, 9:16 am establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CARLOS I. CARRILLO GREGORY F. ZOELLER Ball Eggleston PC Attorney General of Indiana Lafayette, Indiana GEORGE P. SHERMAN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
TONYA WILLIAMS, ) ) Appellant-Defendant, ) ) vs. ) No. 79A04-1303-CR-151 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Randy J. Williams, Judge Cause No. 79D01-1211-FC-42, 79DO1-1104-FC-23
December 31, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge Tonya Williams was convicted of Class C felony operating a vehicle while her driving
privileges were forfeited for life1 and was sentenced to eight years. She argues the court
should have found two additional mitigators and her sentence is inappropriate in light of her
character and offense. We affirm.
FACTS AND PROCEDURAL HISTORY
On November 6, 2012, while her driving privileges were forfeited for life, Williams
drove a car that was involved in a collision with another vehicle. Police arrested Williams
after discovering the status of her driving privileges. The State charged her with Class C
felony operating while her driving privileges were forfeited for life, and Williams pled guilty.
The offense carries a fixed term of two to eight years, with an advisory sentence of four
years. Ind. Code § 35-50-2-6.
The sentencing court found aggravating factors in Williams’ criminal history, in four
true findings of prior probation violations, and in the fact Williams was on felony probation
in two cases when she committed the instant crime. As mitigators, the court acknowledged
Williams’ guilty plea, the undue hardship her incarceration would cause on a dependent, and
Williams’ mental health issues. The court found the aggravators outweighed the mitigators
and imposed the following sentence:
Eight years Indiana Department of Corrections [sic]. Four years executed. Two [years in] Department of Corrections [sic], [and] two years [in] Community Corrections. Four years suspended. Three years supervised [probation], [and] one year unsupervised [probation].
1 Ind. Code § 9-30-10-17.
2 (Tr. at 49-50.)
DISCUSSION AND DECISION
1. Finding of Mitigators
Williams argues the trial court abused its discretion when sentencing her because it
did not consider all mitigating factors. Sentencing decisions rest within the sound discretion
of the trial court and will be disturbed only on a showing of abuse of discretion. Anderson v.
State, 989 N.E.2d 823, 826 (Ind. Ct. App. 2013), trans. denied. An abuse of discretion
occurs when the decision is clearly against the logic and effect of the evidence before the
court or the reasonable inferences to be drawn therefrom. Id.
An appellant has the burden of showing a mitigating factor was offered to the trial
court and is both significant and clearly supported by the record. Anglemyer v. State, 868
N.E.2d 482, 493 (Ind. 2007), modified on reh’g on other grounds 875 N.E.2d 218 (Ind.
2007). A trial court is not required to accept a defendant’s argument as to what constitutes a
mitigating factor or to provide mitigating factors the weight asserted by a defendant. Conley
v. State, 972 N.E.2d 864, 873 (Ind. 2012). It is not error to decline to find a mitigating factor
that is “highly disputable in nature, weight, or significance.” Healey v. State, 969 N.E.2d
607, 616 (Ind. Ct. App. 2012) (citation omitted), trans. denied. Nor is a trial court required
to explain why it did not find a factor significantly mitigating. Creekmore v. State, 853
N.E.2d 523, 530 (Ind. Ct. App. 2006). A trial court’s consideration of factors may be
evidenced either in the written order or in an oral sentencing statement. Gleason v. State, 965
N.E.2d 702, 711 (Ind. Ct. App. 2012).
3 Williams asserts the trial court should have found mitigators in the fact that she was
driving to visit her husband in the hospital and the fact that she would have only limited
access to medical care while incarcerated. We cannot agree.
At the sentencing hearing, Williams requested leniency to deal with her medical
issues. The court said:
Let’s see, August 28th, 2011, circumstances you wish the Court to consider. Also, please consider my medical problems. Furthermore, please just allow me to not be incarcerated to jail or prison so that I may get the help I so desperately need and that I be here for my family. And you go[t] three years at Community Corrections and three years suspended. That’s what I did November of 2011. March 11, 2013, circumstances you wish the Court to consider. Let’s see, please I would like to not be punished with jail time so that I may get the mental and physical treatment I need. It’s the same story.
(Tr. at 46-47.) As for the alleged unavailability of medical treatment, we note the trial court
asked about medical records that would substantiate Williams’ brain tumor, and counsel said,
“I don’t think we have medical records.” (Id. at 42.) As there was no such evidence the
sentencing court was not obliged to accept Williams’ assertion that treatment would be
unavailable while she was in the DOC. The court did not abuse its discretion by overlooking
a mitigator that was both significant and clearly supported. See Cardwell v. State, 895
N.E.2d 1219, 1226 (Ind. 2008) (no abuse of discretion in rejection of vision problems as a
proposed mitigator when court had “noted its skepticism”).
As for Williams’s assertion that the court should have found a mitigator in the fact she
was driving to the hospital to visit her husband, the court said:
A year and a half ago [when she was convicted of driving without a license], it was right around the tenth anniversary of your mother’s death and here something else triggered it. Now, I’ll acknowledge, if this had been the---that 4 you were driving to the hospital to take your husband to the hospital because of his condition or immediately thereafter I’d look at it probably differently. But it’s not. You’d been there. You’d come back. You had opportunity, you had all kind of support here. All kinds of people that could put you, could have helped you. You are a danger . . . to others.
(Tr. at 47.) We cannot hold the court abused its discretion in rejecting this proposed
mitigator. See, e.g., Cardwell, 895 N.E.2d at 1226 (affirming rejection of proposed mitigator
because court was permitted to judge credibility of the witnesses).
2. Inappropriateness of Sentence
Under Indiana Appellate Rule 7(B), we 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.”
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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 Dec 31 2013, 9:16 am establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CARLOS I. CARRILLO GREGORY F. ZOELLER Ball Eggleston PC Attorney General of Indiana Lafayette, Indiana GEORGE P. SHERMAN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
TONYA WILLIAMS, ) ) Appellant-Defendant, ) ) vs. ) No. 79A04-1303-CR-151 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Randy J. Williams, Judge Cause No. 79D01-1211-FC-42, 79DO1-1104-FC-23
December 31, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge Tonya Williams was convicted of Class C felony operating a vehicle while her driving
privileges were forfeited for life1 and was sentenced to eight years. She argues the court
should have found two additional mitigators and her sentence is inappropriate in light of her
character and offense. We affirm.
FACTS AND PROCEDURAL HISTORY
On November 6, 2012, while her driving privileges were forfeited for life, Williams
drove a car that was involved in a collision with another vehicle. Police arrested Williams
after discovering the status of her driving privileges. The State charged her with Class C
felony operating while her driving privileges were forfeited for life, and Williams pled guilty.
The offense carries a fixed term of two to eight years, with an advisory sentence of four
years. Ind. Code § 35-50-2-6.
The sentencing court found aggravating factors in Williams’ criminal history, in four
true findings of prior probation violations, and in the fact Williams was on felony probation
in two cases when she committed the instant crime. As mitigators, the court acknowledged
Williams’ guilty plea, the undue hardship her incarceration would cause on a dependent, and
Williams’ mental health issues. The court found the aggravators outweighed the mitigators
and imposed the following sentence:
Eight years Indiana Department of Corrections [sic]. Four years executed. Two [years in] Department of Corrections [sic], [and] two years [in] Community Corrections. Four years suspended. Three years supervised [probation], [and] one year unsupervised [probation].
1 Ind. Code § 9-30-10-17.
2 (Tr. at 49-50.)
DISCUSSION AND DECISION
1. Finding of Mitigators
Williams argues the trial court abused its discretion when sentencing her because it
did not consider all mitigating factors. Sentencing decisions rest within the sound discretion
of the trial court and will be disturbed only on a showing of abuse of discretion. Anderson v.
State, 989 N.E.2d 823, 826 (Ind. Ct. App. 2013), trans. denied. An abuse of discretion
occurs when the decision is clearly against the logic and effect of the evidence before the
court or the reasonable inferences to be drawn therefrom. Id.
An appellant has the burden of showing a mitigating factor was offered to the trial
court and is both significant and clearly supported by the record. Anglemyer v. State, 868
N.E.2d 482, 493 (Ind. 2007), modified on reh’g on other grounds 875 N.E.2d 218 (Ind.
2007). A trial court is not required to accept a defendant’s argument as to what constitutes a
mitigating factor or to provide mitigating factors the weight asserted by a defendant. Conley
v. State, 972 N.E.2d 864, 873 (Ind. 2012). It is not error to decline to find a mitigating factor
that is “highly disputable in nature, weight, or significance.” Healey v. State, 969 N.E.2d
607, 616 (Ind. Ct. App. 2012) (citation omitted), trans. denied. Nor is a trial court required
to explain why it did not find a factor significantly mitigating. Creekmore v. State, 853
N.E.2d 523, 530 (Ind. Ct. App. 2006). A trial court’s consideration of factors may be
evidenced either in the written order or in an oral sentencing statement. Gleason v. State, 965
N.E.2d 702, 711 (Ind. Ct. App. 2012).
3 Williams asserts the trial court should have found mitigators in the fact that she was
driving to visit her husband in the hospital and the fact that she would have only limited
access to medical care while incarcerated. We cannot agree.
At the sentencing hearing, Williams requested leniency to deal with her medical
issues. The court said:
Let’s see, August 28th, 2011, circumstances you wish the Court to consider. Also, please consider my medical problems. Furthermore, please just allow me to not be incarcerated to jail or prison so that I may get the help I so desperately need and that I be here for my family. And you go[t] three years at Community Corrections and three years suspended. That’s what I did November of 2011. March 11, 2013, circumstances you wish the Court to consider. Let’s see, please I would like to not be punished with jail time so that I may get the mental and physical treatment I need. It’s the same story.
(Tr. at 46-47.) As for the alleged unavailability of medical treatment, we note the trial court
asked about medical records that would substantiate Williams’ brain tumor, and counsel said,
“I don’t think we have medical records.” (Id. at 42.) As there was no such evidence the
sentencing court was not obliged to accept Williams’ assertion that treatment would be
unavailable while she was in the DOC. The court did not abuse its discretion by overlooking
a mitigator that was both significant and clearly supported. See Cardwell v. State, 895
N.E.2d 1219, 1226 (Ind. 2008) (no abuse of discretion in rejection of vision problems as a
proposed mitigator when court had “noted its skepticism”).
As for Williams’s assertion that the court should have found a mitigator in the fact she
was driving to the hospital to visit her husband, the court said:
A year and a half ago [when she was convicted of driving without a license], it was right around the tenth anniversary of your mother’s death and here something else triggered it. Now, I’ll acknowledge, if this had been the---that 4 you were driving to the hospital to take your husband to the hospital because of his condition or immediately thereafter I’d look at it probably differently. But it’s not. You’d been there. You’d come back. You had opportunity, you had all kind of support here. All kinds of people that could put you, could have helped you. You are a danger . . . to others.
(Tr. at 47.) We cannot hold the court abused its discretion in rejecting this proposed
mitigator. See, e.g., Cardwell, 895 N.E.2d at 1226 (affirming rejection of proposed mitigator
because court was permitted to judge credibility of the witnesses).
2. Inappropriateness of Sentence
Under Indiana Appellate Rule 7(B), we 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.”
Although we may review and revise a sentence, “[t]he principal role of appellate review
should be to attempt to leaven the outliers, and identify some guiding principles for trial
courts and those charged with improvement of the sentencing statutes, but not to achieve a
perceived ‘correct’ result in each case.” Cardwell, 895 N.E.2d at 1225. We must give
“deference to a trial court’s sentencing decision, both because Rule 7(B) requires us to give
due consideration to that decision and because we understand and recognize the unique
perspective a trial court brings to its sentencing decisions.” Trainor v. State, 950 N.E.2d 352,
355-56 (Ind. Ct. App. 2011) (quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App.
2007)) (internal quotation marks omitted), trans. denied.
When we review the appropriateness of a sentence, we consider “the culpability of the
defendant, the severity of the crime, the damage done to others, and myriad other factors that
5 come to light in a given case.” Cardwell, 895 N.E.2d at 1224. Before we may revise a
sentence, the appellant must demonstrate the sentence is “inappropriate in light of both the
nature of his offenses and his character.” Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct.
App. 2008) (emphasis added). The “nature of offense” compares the appellant’s actions with
the required showing to sustain a conviction under the charged offense, Anderson, 989
N.E.2d at 827, while the “character of the offender” permits for a broader consideration of
the appellant’s character. Id.
We cannot hold Williams’ sentence inappropriate in light of her character. An
extensive criminal history reflects poorly on an offender’s character. Schmidt v. State, 952
N.E.2d 249, 253 (Ind. Ct. App. 2011), trans. denied. The significance of a criminal history
when assessing the appropriateness of a sentence varies based on the gravity, nature, and
number of prior offenses in relation to the current offense. Stewart v. State, 866 N.E.2d 858,
866 (Ind. Ct. App. 2007). Williams had been convicted three times of misdemeanor driving
with a suspended license, once for misdemeanor operating a vehicle while intoxicated, once
for felony operating as a habitual traffic violator, and twice for felony operating after a
lifetime forfeiture. During periods of probation ordered for those crimes, the State filed six
petitions to revoke probation and the court found the State proved four probation violations.
The court noted that it had given Williams leniency in the past, but she continued to drive
when she was a danger to herself and others.
We see nothing inappropriate about the eight-year sentence imposed for Williams’
third conviction of Class C felony operating after a lifetime forfeiture of her driver’s license,
6 see Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013) (holding two consecutive
maximum sentences were not inappropriate in light of appellant’s criminal history), and
accordingly we affirm.
Affirmed.
BAILEY, J., and BRADFORD, J., concur.