Opinion
Court of Appeals Case No. 20A-CR-1673
03-12-2021
Daniel ELLIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
Attorneys for Appellant: Marietto V. Massillamany, Erica Sawyer, Massillamany Jeter & Carson LLP, Fishers, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana
Attorneys for Appellant: Marietto V. Massillamany, Erica Sawyer, Massillamany Jeter & Carson LLP, Fishers, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana
MEMORANDUM DECISION
May, Judge.
[1] Daniel Ellis appeals following his conviction of Level 4 felony causing death when operating a motor vehicle with a schedule I or II controlled substance in his blood. He raises one issue, which we revise and restate as three issues: (1) whether the trial court abused its discretion in considering aggravating and mitigating factors at sentencing, (2) whether Ellis’ sentence is inappropriate given the nature of his offense and his character, and (3) whether the trial court improperly ordered Ellis to pay $38,000 in restitution. We affirm Ellis’ twelve-year sentence, but we reverse the restitution order and remand for further proceedings.
Facts and Procedural History
[2] On July 1, 2019, Ellis was driving south bound along a county road in rural Madison County, Indiana, when he fell asleep and his van veered over the center line. Danny Kinzer was riding his motorcycle north bound at the time. Kinzer applied his brakes but was unable to avoid colliding with Ellis’ vehicle. Emergency personnel arrived at the scene shortly after the crash, and an air ambulance transferred Kinzer to St. Vincent Hospital in Indianapolis. Kinzer was pronounced dead at the hospital. Ellis was transferred to Community Hospital in Anderson, and the State obtained a search warrant to perform a blood draw. The Indiana State Department of Toxicology analyzed Ellis’ blood sample and determined it contained methamphetamines or amphetamines, THC, and a metabolite for cocaine.
[3] On September 30, 2019, the State charged Ellis with Level 4 felony causing death when operating a motor vehicle with a schedule I or II controlled substance in the blood. Ellis pled guilty without the benefit of a plea agreement on June 15, 2020, and the trial court held a sentencing hearing on August 10, 2020. Kinzer's daughter testified at the hearing regarding the pain her father's death caused her and her family. Following her testimony, the trial court asked the State if it had any additional evidence to present, and the following exchanged occurred:
[State:] Yes, Judge, I think we may have, by way of proffer and agreement ... [Kinzer's wife] submitted some documents with respect to restitution and I clarified with her that she had had insurance payments, but the only thing was a Lifeline bill of thirty-eight thousand dollars ($38,000.00). Um, and I spoke with [Defense Counsel] and notified him of that. I think we are in agreement that that would be the sole restitution the State would be asking for.
* * * * *
[State:] If I could just, for the record, is the defense okay with that situation?
[Defense Counsel:] Well, Judge, we're not objecting to the admission of that amount into the record.
(Tr. Vol. I at 40-41.) The State did not enter the Lifeline bill into evidence or produce testimony regarding what portion of the bill the Kinzers had paid. The State also asked the trial court to take judicial notice of a probable cause affidavit filed in a previous case against Ellis. The probable cause affidavit indicated that Ellis drove under the influence of alcohol and crashed his vehicle while three children were in the car with him. Ellis did not put forth any evidence at the sentencing hearing, but he did make a statement to the trial court in which he said, "I am very sorry, and I never ever meant for anything to happen like this." (Id. at 43.) During argument prior to the court imposing sentence, Ellis’ counsel stated:
I would just ask the court to consider there's an outstanding Lifeline bill for thirty-eight thousand dollars ($38,000.00) that hasn't been paid and ordering restitution does make them hold [sic], that they are yet to be out the money to pay the bill. Judge, I think that the amount that is being requested, because of its amount, Judge, the forum for them to make that request might be um, more well suited for a wrongful death action and they could make that request there, Judge. I would just ask the court to consider that today.
(Id. at 48.)
[4] The trial court found Kinzer's advanced age at the time of his death to be an aggravating circumstance. The trial court also found Ellis’ three previous convictions of operating a vehicle while intoxicated and his continued criminal behavior after those judicial interventions to be aggravating circumstances. The trial court did find as mitigating circumstances Ellis’ expression of remorse and his decision to plead guilty. The trial court sentenced Ellis to twelve years in the Indiana Department of Correction and ordered Ellis to pay $38,000 in restitution.
Discussion and Decision
I. Abuse of Discretion
[5] We separately analyze claims related to the trial court's discretionary imposition of a sentence and claims that a sentence is inappropriate under Indiana Appellate Rule 7(B). Crouse v. State , 158 N.E.3d 388, 394 (Ind. Ct. App. 2020). We trust sentencing decisions to the sound discretion of the trial court, and we review such decisions for an abuse of discretion. Id. at 393. An abuse of discretion occurs if the trial court's 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." Hudson v. State , 135 N.E.3d 973, 979 (Ind. Ct. App. 2019). A trial court may abuse its discretion at sentencing by:
(1) failing to enter a sentencing statement at all; (2) entering a sentencing statement that includes aggravating and mitigating factors that are unsupported by the record; (3) entering a sentencing statement that omits reasons that are clearly supported by the record; or (4) entering a sentencing statement that includes reasons that are improper as a matter of law.
Id. The trial court is not required to accept a defendant's arguments regarding what constitutes a mitigating circumstance, nor is the trial court required to give proposed mitigating circumstances the same level of importance as the defendant does. Comer v. State , 839 N.E.2d 721, 728 (Ind. Ct. App. 2005), trans. denied.
[6] Ellis argues the trial court improperly considered the impact Ellis’ crime had on the victim's family as an aggravating circumstance. He explains:
[D]eath was an essential element of the charged offense, and it is improper to consider the impact of the victim's death on his family. The trial court does not directly state that it was an aggravating factor, however, the record is clear that it was considered and given heavy weight.[ ]
Elsewhere in his brief, Ellis contends "the trial court failed to give proper weight to the mitigating factors in this case." (Am. Appellant's Br. at 9.) However, a defendant cannot argue on appeal that a trial court failed to "properly weigh" aggravating and mitigating circumstances because the trial court is not required to weigh the aggravating and mitigating circumstances against each other. Anglemyer v. State , 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh'g 875 N.E.2d 218 (Ind. 2007).
(Am. Appellant's Br. at 8.) We disagree. The trial court specifically listed as aggravating circumstances Kinzer's age, Ellis’ criminal history involving similar offenses, and past attempts at intervention through means other than imprisonment had failed to curb Ellis’ criminal behavior. Ellis does not argue that any of these aggravating circumstances were improper as a matter of law or not supported by the record. See Hale v. State , 128 N.E.3d 456, 464 (Ind. Ct. App. 2019) (holding trial court did not consider improper aggravating circumstance), trans. denied.
[7] Ellis also contends the trial court failed to consider the impact a long period of incarceration will have on his family as a mitigating circumstance. Ellis mentioned his family during his statement of allocution, but he mentioned them in the context of explaining how his life changed because of his crime. (See Tr. Vol. I at 43 ("My life has been flipped upside down just as well as [the victim's family members’ lives] have and I wish I could've had some of my family members here to speak of that, but I didn't, I just can't, I can't even explain anything that happened.").) While the Pre-Sentence Investigation Report indicates Ellis has "ample support" from his siblings, mother, and stepfather, Ellis reported only "occasional contact with family," and he did not report having any dependent children. (App. Vol. II at 42.) Thus, we hold the trial court did not abuse its discretion in failing to consider the impact his incarceration will have on his family as a mitigating circumstance at sentencing. See Reese v. State , 939 N.E.2d 695, 703 (Ind. Ct. App. 2011) (holding trial court did not abuse its discretion in assigning minimal weight to impact defendant's incarceration would have on his children), trans. denied.
II. Inappropriateness of Sentence
[8] We may revise a sentence if it "is inappropriate in light of the nature of the offense and the character of the offender." Williams v. State , 891 N.E.2d 621, 633 (Ind. Ct. App. 2008) (citing Ind. Appellate Rule 7(B) ). We consider the aggravators and mitigators found by the trial court and any other factors appearing in the record. Baumholser v. State , 62 N.E.3d 411, 417 (Ind. Ct. App. 2016), trans. denied. Our determination of inappropriateness "turns on our sense of the 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 appellant must demonstrate his sentence is inappropriate. Baumholser , 62 N.E.3d at 418.
[9] Ellis argues that his maximum sentence is inappropriate because he is not one of the "worst offenders." See Buchanan v. State , 767 N.E.2d 967, 973 (Ind. 2002) ("We have observed that ‘the maximum possible sentences are generally most appropriate for the worst offenders.’ ") (quoting Evans v. State , 725 N.E.2d 850, 851 (Ind. 2000) ). However, the test is not whether a worse offender could be imagined, but whether the defendant belongs to the class of offenses and offenders who deserve the maximum punishment. Id.
[10] When considering the nature of the offense, the advisory sentence is the starting point to determine the appropriateness of a sentence. Anglemyer v. State , 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh'g 875 N.E.2d 218 (Ind. 2007). A Level 4 felony is punishable by a fine up to $10,000 and a term of imprisonment between two and twelve years, with an advisory sentence of six years. Ind. Code § 35-50-2-5.5. The trial court deviated from the advisory sentence and sentenced Ellis to the maximum term of imprisonment available. Thus, we look to whether there is anything about Ellis’ offense that makes it more or less egregious than "the ‘typical’ offense accounted for by the legislature when it set the advisory sentence." Holloway v. State , 950 N.E.2d 803, 807 (Ind. Ct. App. 2011).
[11] Ellis had numerous controlled substances in his blood at the time of the crash, and he was solely at fault for the accident. He fell asleep while driving and allowed his vehicle to completely cross the center line, causing a collision. Ellis also fell asleep while being interviewed by a police officer at the hospital following the crash. Kinzer was sixty-five-years-old at the time of his death, and the crime occurred on Kinzer's granddaughter's birthday, which resulted in additional hardship for the family. He was also a veteran who had recently retired from his job. Thus, we conclude that the nature of Ellis’ offense was more egregious than the typical driving while intoxicated causing death offense. See Pedigo v. State , 146 N.E.3d 1002, 1016 (Ind. Ct. App. 2020) (sentence not inappropriate in light of nature of the offense when defendant recklessly drove a loaded tow truck while under the influence of methamphetamine causing a chain reaction accident, resulting in the death of one person and serious injury to another), trans. denied.
[12] Ellis argues that his ability to remain free on bond during the pendency of the case without committing another crime, his remorse, and his decision to plead guilty render his sentence inappropriate. However, when we consider an offender's character, "one relevant fact is the defendant's criminal history." Johnson v. State , 986 N.E.2d 852, 857 (Ind. Ct. App. 2013). Prior to the instant offense, Ellis had been convicted of operating a vehicle while intoxicated three times. One of these prior offenses involved Ellis buying alcohol for a pair of teenagers, and then Ellis drove while under the influence of alcohol with the two teenagers and a third child in his car. Ellis crashed the vehicle, and the three children sustained facial injuries. In addition to his operating a vehicle while intoxicated convictions, Ellis was also convicted of Class A misdemeanor domestic battery. Ellis’ commission of the instant offense after multiple previous convictions for similar offenses reflects poorly on his character. Thus, we cannot say Ellis’ sentence is inappropriate given his character. See Williams v. State , 51 N.E.3d 1205, 1211-12 (Ind. Ct. App. 2016) (holding sentence not inappropriate where defendant had history of committing same type of offense).
Ind. Code § 35-42-2-1.3 (2012).
III. Restitution
[13] Ellis also challenges the trial court's restitution order. Restitution orders are meant to impress upon the defendant the gravity of his offense and to defray costs the victims incurred. Rich v. State , 890 N.E.2d 44, 50 (Ind. Ct. App. 2008), trans. denied. "An order of restitution is a matter within the trial court's sound discretion and will only be reversed upon a showing of abuse of discretion." Archer v. State , 81 N.E.3d 212, 215 (Ind. 2017). "An abuse of discretion occurs if the court's decision is clearly against the logic and effect of the facts and circumstances before it." Wolff v. State , 914 N.E.2d 299, 303 (Ind. Ct. App. 2009).
[14] Indiana Code section 35-50-5-3(a)(2) allows the court to order restitution for "medical and hospital costs incurred by the victim (before the date of sentencing) as a result of the crime[.]" However, the restitution order "must reflect only actual costs incurred by the victim and may not include recovery for duplicated medical charges." Little v. State , 839 N.E.2d 807, 810 (Ind. Ct. App. 2005) (holding restitution order that provided for duplicated recovery was an abuse of discretion) (internal citation and quotation marks omitted). Here, the State failed to put forth any evidence demonstrating the actual costs incurred by the Kinzers.
[15] In response, the State argues Ellis invited any such error by not challenging the deputy prosecutor's statement about the Lifeline bill at the sentencing hearing. The doctrine of invited error is "based on the legal principle of estoppel [and] forbids a party from taking ‘advantage of an error that she commits, invites, or which is the natural consequence of her own neglect or misconduct.’ " Durden v. State , 99 N.E.3d 645, 651 (Ind. 2018) (quoting Wright v. State , 828 N.E.2d 904, 907 (Ind. 2005) ). While Ellis did not object to the deputy prosecutor's statement regarding the amount of the Lifeline bill, he argued the amount could be greater than what the Kinzers had paid or owed. Thus, we decline to hold that Ellis invited any error regarding the restitution order. See Batchelor v. State , 119 N.E.3d 550, 559 (Ind. 2019) (holding defendant did not invite error). Therefore, we reverse the trial court's restitution order and remand the case back to the trial court with instructions for the trial court to conduct an evidentiary hearing as to the proper amount of restitution due. See Garcia v. State , 47 N.E.3d 1249, 1253 (Ind. Ct. App. 2015) (holding State failed to put forth reasonable evidence of loss and remanding for new restitution hearing), trans. denied.
We do not know what portion of the Lifeline bill the Kinzers paid because the State did not enter the Lifeline bill into evidence or produce testimony regarding the bill.
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Conclusion
[16] The trial court did not abuse its discretion in considering aggravating and mitigating circumstances at sentencing. Ellis’ twelve-year executed sentence is also not inappropriate given the egregious nature of his offense and his history of similar offenses. We thus affirm these portions of the trial court's sentencing order. Nonetheless, the trial court abused its discretion when it ordered Ellis to pay $38,000 in restitution without receiving evidence regarding the actual loss incurred by the victims. Therefore, we reverse the trial court's restitution order and remand the matter for a new restitution hearing.
[17] Affirmed part, reversed in part, and remanded.
Kirsch, J., and Bradford, C.J., concur.