Opinion
24A-CR-1767
12-11-2024
Michael Dean Neville, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Benjamin Loheide Law Office of Benjamin Loheide Columbus, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Michelle Hawk Kazmierczak Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Jennings Superior Court The Honorable Gary L. Smith, Judge Trial Court Cause No. 40D01-2309-F6-205
ATTORNEY FOR APPELLANT Benjamin Loheide Law Office of Benjamin Loheide Columbus, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Michelle Hawk Kazmierczak Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
PYLE, JUDGE.
Statement of the Case
[¶1] Michael Dean Neville ("Neville"), appeals, following his guilty plea, his sentence for Level 6 felony operating a vehicle with an ACE of .08 or more with a prior conviction that was enhanced by his habitual vehicular substance offender ("HVSO") adjudication. Neville argues that his sentence is inappropriate. Concluding that Neville has failed to show that his sentence is inappropriate, we affirm the trial court's judgment.
I.C. § 9-30-15.5-2.
[¶2] We affirm.
Issue
Whether Neville's sentence is inappropriate.
The record on appeal does not contain a copy of Neville's guilty plea transcript. Therefore, the facts of Neville's offenses are taken from his recounting of the offense in his presentence investigation report ("PSI") and from the probable cause affidavit, upon which the parties rely to recount the facts of Neville's offenses.
[¶3] On September 23, 2023, sixty-one-year-old Neville, who had a suspended driver's license, drank some strong beer, smoked marijuana, and then decided to drive his adult son to work. A North Vernon Police Department officer saw Neville run a red light at the intersection of State Route 7 and U.S. Highway 50 in Jennings County, and the officer initiated a traffic stop. Neville was unable to produce a driver's license, and the officer learned that Neville's license had been indefinitely suspended. The officer smelled the odor of alcohol emanating from Neville, and a later chemical breath test revealed that Neville had a 0.142 BAC.
[¶4] The State charged Neville with Count 1, Level 6 felony operating a vehicle with an ACE of .08 or more with a prior conviction; Count 2, Class C misdemeanor operating a vehicle with an ACE of .08 or more; Count 3, Class A misdemeanor driving while suspended. The State also alleged that Neville was an HVSO.
[¶5] A few months later, in May 2024, Neville entered into a plea agreement. Neville agreed to plead guilty to the Level 6 felony operating a vehicle with an ACE of .08 or more with a prior conviction charge and to admit to the HVSO allegation in exchange for the State's dismissal of the remaining two charges. The parties agreed that Neville's sentence on the Level 6 felony would be open to the trial court's discretion and that his HVSO sentencing enhancement would be capped at four years executed. Neville's plea agreement contained various provisions regarding waiving a challenge to sentencing. Specifically, the plea agreement contained a provision that, "[i]f [Neville was] agreeing to [his] sentence," then he would "give up the right to appeal [his] sentence[.]" (App. Vol. 2 at 31). Additionally, Neville's plea agreement contained a sentenceappeal waiver, which provided that Neville "waive[d] the right to appeal any sentence imposed by the [trial] [c]ourt, including the right to seek appellate review of the sentence, pursuant to Indiana Appellate Rule 7(B), so long as the [trial] [c]ourt sentences [Neville] within the terms of the plea agreement." (App. Vol. 2 at 32).
[¶6] At the time of Neville's sentencing hearing, sixty-two-year-old Neville had a criminal history that spanned forty years and included eight felony convictions and six misdemeanor convictions. Specifically, Neville's felony convictions included three felony convictions for operating a vehicle while intoxicated, a conviction for operating while suspended as an habitual traffic violator, a conviction for criminal recklessness while armed with a deadly weapon, a theft conviction, a conviction for operating a vehicle while intoxicated with a prior conviction, and a possession of a narcotic drug conviction. Neville's misdemeanor convictions included two convictions for public intoxication, an operating a vehicle while intoxicated conviction, a conviction for operating a vehicle with an ACE of at least .08, and a conviction for driving while suspended with a prior conviction within ten years.
[¶7] The PSI revealed that, during Neville's presentence interview, he indicated that he had a history of using alcohol and drugs, including cocaine, heroin, acid, and marijuana, during his lifetime. Neville also admitted that he overconsumed his prescription medication over the past thirty years. Additionally, the PSI revealed that Neville had told the probation department that alcohol was "not a problem" for him. (App. Vol. 2 at 48, 49). Neville told the probation department that he would be willing to participate in services if necessary but that he did not really want to go to treatment again.
[¶8] When sentencing Neville, the trial court noted that it had reviewed Neville's PSI and his criminal history. The trial court found Neville's guilty plea and his prior military service to be mitigating circumstances. The trial court noted, however, that Neville had been "given less than [an] honorable discharge based upon [his] behavior while [he had been] in the military." (Tr. Vol. 2 at 16). Specifically, the PSI revealed that Neville had been discharged for possession of heroin. When reviewing aggravating circumstances, the trial court pointed to the following: (1) Neville's criminal history; (2) his license suspension at the time of his offense; (3) his multiple failures to complete drug and alcohol programs, house arrest, and community service; (4) his multiple prior failures to appear in court; and (5) his five prior probation revocation petitions. Neville had also failed prior attempts in a Veteran's Treatment Court Program. The trial court noted that Neville had been given "chance after chance after chance" and that he had "repeatedly violated and violated and violated." (Tr. Vol. 2 at 16). Additionally, the trial court noted that "multiple times [Neville had been] given [an] opportunity to change [his] behavior" and that he had "consistently failed." (Tr. Vol. 2 at 16). The trial court imposed a two and one-half (2%) year sentence for Neville's conviction of Level 6 felony operating a vehicle with an ACE of .08 or more with a prior conviction and enhanced that sentence by four (4) years for his HVSO adjudication. Thus, the trial court imposed an aggregate sentence of six and one-half (6%) years to be executed at the Indiana Department of Correction.
[¶9] Neville now appeals.
Decision
[¶10] Neville argues that his six-and-one-half-year sentence is inappropriate. We disagree.
[¶11] We first note that Neville's plea agreement contained various provisions regarding waiving a challenge to sentencing. Specifically, the plea agreement contained a provision that, "[i]f [Neville was] agreeing to [his] sentence," then he would "give up the right to appeal [his] sentence[.]" (App. Vol. 2 at 31). Additionally, Neville's plea agreement contained another provision, which provided that Neville "waive[d] the right to appeal any sentence imposed by the [trial] [c]ourt, including the right to seek appellate review of the sentence, pursuant to Indiana Appellate Rule 7(B), so long as the [trial] [c]ourt sentences [Neville] within the terms of the plea agreement." (App. Vol. 2 at 32).
[¶12] The parties agreed that Neville's HVSO sentencing enhancement would be capped at four years executed, and the trial court, pursuant to the plea agreement, imposed a four-year executed HVSO sentencing enhancement. Because the trial court sentenced Neville within the terms of his plea agreement on his HVSO sentencing enhancement, we conclude that Neville has waived his right to appeal the enhancement part of his sentence. See Davis v. State, 217 N.E.3d 1229, 1235 (Ind. 2023), 217 N.E.3d at 1235 (dismissing the defendant's appeal where his written plea agreement "unambiguously waived his right to appeal his sentence"), as modified on reh'g.; Creech v. State, 887 N.E.2d 73, 74-75 (Ind. 2008) (holding that the defendant had waived his right to appeal his sentence pursuant to the express language in his written plea agreement). Therefore, we review only Neville's challenge to his two-and-one-half-year sentence for his Level 6 felony conviction.
[¶13] We may revise a sentence if it is inappropriate in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B). The defendant has the burden of persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a Rule 7(B) 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 v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). "Appellate Rule 7(B) analysis is not to determine whether another sentence is more appropriate but rather whether the sentence imposed is inappropriate." Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted), reh'g denied.
[¶14] When determining whether a sentence is inappropriate, we acknowledge that the advisory sentence "is the starting point the Legislature has selected as an appropriate sentence for the crime committed." Childress, 848 N.E.2d at 1081. Neville pled guilty and was convicted of Level 6 felony operating a vehicle with an ACE of .08 or more with a prior conviction. A person who commits a Level 6 felony "shall be imprisoned for a fixed term of between six (6) months and two and one-half (2%) years, with the advisory sentence being one (1) year." I.C. § 35-50-2-7(b).
[¶15] Turning first to the nature of Neville's offense, we note that Neville drank strong beer, smoked marijuana, and then decided to drive a car. Neville, who had a 0.142 BAC level and a suspended license, ran a red light at the intersection of State Route 7 and U.S. Highway 50 in Jennings County. Fortunately, a police officer saw Neville run the red light and initiated a traffic stop before Neville drove any further and injured anyone.
[¶16] In reviewing Neville's character, we note that he has a criminal history that spans multiple decades and includes multiple convictions for driving while under the influence of alcohol. Neville has eight felony convictions and five misdemeanor convictions. Additionally, Neville's license was suspended at the time of his offense, and he had multiple failures to complete drug and alcohol programs, house arrest, and community service. Moreover, Neville had multiple prior failures to appear in court, five prior probation revocation petitions, and failed prior attempts in a Veteran's Treatment Court Program. As the trial court noted, the courts had previously provided Neville with opportunities to change his behavior, but Neville squandered those opportunities and had "consistently failed." (Tr. Vol. 2 at 16).
[¶17] After a full review of the record on appeal, we conclude that Neville has not persuaded us that his sentence for his conviction of Level 6 felony operating a vehicle with an ACE of .08 or more with a prior conviction is inappropriate. Therefore, we affirm the sentence imposed by the trial court.
[¶18] Affirmed.