Opinion
24A-CR-1336
12-19-2024
Matthew D. Walro, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Jennifer A. Joas Madison ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Andrew M. Sweet Deputy Attorney General
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Jefferson Superior Court The Honorable Blaine S. Goode, Judge Trial Court Cause No. 39D01-2307-CM-954 Memorandum Decision by Judge Tavitas Judges May and DeBoer concur.
ATTORNEY FOR APPELLANT Jennifer A. Joas Madison
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Andrew M. Sweet Deputy Attorney General
MEMORANDUM DECISION
Tavitas, Judge.
Case Summary
[¶1] Matthew Walro pleaded guilty to operating a vehicle while intoxicated ("OVWI") endangering a person, a Class A misdemeanor, and possession of marijuana, a Class B misdemeanor. The trial court sentenced Walro to an aggregate term of 335 days of incarceration. Walro appeals and argues that his sentence is inappropriate. We disagree and, accordingly, affirm.
Issue
[¶2] Walro presents one issue for our review: whether his 335-day sentence is inappropriate in light of the nature of Walro's offenses and Walro's character.
Facts
[¶3] On July 23, 2023, Walro drove his vehicle into the oncoming lane of traffic and struck a parked car. Walro told the responding officer that he had fallen asleep while driving. The officer suspected that Walro was intoxicated, and Walro admitted to having recently used methamphetamine. When searching Walro incident to his arrest, the officer found a bag of marijuana in Walro's pocket. Subsequent chemical testing of Walro's blood revealed the presence of THC and methamphetamine in his system.
[¶4] The next day, the State charged Walro with OVWI endangering a person, a Class A misdemeanor, and possession of marijuana, a Class B misdemeanor. On May 8, 2024, Walro pleaded guilty to both charges pursuant to an unwritten agreement with the State. The only terms of the agreement were that Walro would plead guilty as charged and that his sentences would be served concurrently. The trial court accepted Walro's plea and sentenced him to 335 days of incarceration on the OVWI conviction and a concurrent term of 180 days on the possession charge. Walro now appeals.
Discussion and Decision
[¶5] Walro argues only that his sentence is inappropriate. We recently summarized our standard of review on such claims as follows:
The Indiana Constitution authorizes independent appellate review and revision of a trial court's sentencing decision. Our Supreme Court has implemented this authority through Indiana Appellate Rule 7(B), which allows this Court to revise a sentence when it is "inappropriate in light of the nature of the offense and the character of the offender." Our review of a sentence under Appellate Rule 7(B) is not an act of second guessing the trial court's sentence; rather, [o]ur posture on appeal is [] deferential to the trial court. We exercise our authority under Appellate Rule 7(B) only in exceptional cases, and its exercise boils down to our collective sense of what is appropriate.
The principal role of appellate review is to attempt to leaven the outliers. The point is not to achieve a perceived correct sentence. Whether a sentence should be deemed inappropriate 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. Deference to the trial court's sentence should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as [being] accompanied by restraint, regard, and lack of brutality)
and the defendant's character (such as substantial virtuous traits or persistent examples of good character).Dean v. State, 222 N.E.3d 976, 989-90 (Ind.Ct.App. 2023) (citations and internal quotations omitted), trans. denied.
[¶6] Here, Walro was convicted of one Class A misdemeanor and one Class B misdemeanor. A person who commits a Class A misdemeanor shall be imprisoned for a fixed term of not more than one (1) year ...." Ind. Code § 35-50-3-2. And "[a] person who commits a Class B misdemeanor shall be imprisoned for a fixed term of not more than one hundred eighty (180) days . . . ." Ind. Code § 35-50-3-3. The terms of Walro's plea agreement required that his sentences be served concurrently. Thus, Walro could not be imprisoned for more than one year. Here, the trial court ordered Walro to serve 335 days in jail.
A. Nature of the Offense
[¶7] We first consider the nature of Walro's offenses. "Our analysis of the 'nature of the offense' requires us to look at the nature, extent, heinousness, and brutality of the offense." Dean, 222 N.E.3d at 990 (quoting Brown v. State, 10 N.E.3d 1, 5 (Ind. 2014)). As noted, we should defer to the trial court's sentencing unless the defendant presents compelling evidence portraying the nature of his offense in a positive light. Dean, 222 N.E.3d at 990. Here, we perceive no such compelling evidence. Walro drove his vehicle while intoxicated, despite having four prior convictions for the same offense. He drove in the wrong lane and struck a parked car. We agree with the State that only good fortune prevented Walro from causing more damage or even injuries.
[¶8] Walro claims that he had only low levels of THC and methamphetamine in his blood. But this is supported only by his counsel's statements at the sentencing hearing, and statements by counsel are not evidence. Fouts v. State, 207 N.E.3d 1257, 1267 (Ind.Ct.App. 2023), trans. denied. Walro also claims that he merely fell asleep at the wheel. The trial court was not required to believe this claim, and even if it did, it could reasonably conclude that this was related to the intoxicants in Walro's blood. In short, nothing about the nature of Walro's offense convinces us that his 335-day sentence is inappropriate.
B. Character of the Offender
[¶9] Our analysis of the character of the offender involves a broad consideration of a defendant's qualities, including the defendant's age, criminal history, background, past rehabilitative efforts, and remorse. Dean, 222 N.E.3d at 990. The significance of a defendant's criminal history in assessing his character varies based on the gravity, nature, proximity, and number of prior offenses in relation to the current offense. Id. Still, "'[e]ven a minor criminal history is a poor reflection of a defendant's character.'" Id. (quoting Prince v. State, 148 N.E.3d 1171, 1174 (Ind.Ct.App. 2020)).
[¶10] Walro notes that he was employed. We have noted before, however, that "most people are gainfully employed, and this does not weigh in favor of a lesser sentence." Pritcher v. State, 208 N.E.3d 656, 669 (Ind.Ct.App. 2023) (citing Hale v. State, 128 N.E.3d 456, 465 (Ind.Ct.App. 2019)). Walro also notes that he cared for his elderly parents. But this fact, while admirable, does not necessarily require that we find his sentence to be inappropriate. Cf. Zavala v. State, 138 N.E.3d 291, 302 (Ind.Ct.App. 2019) (holding that hardship to dependents does not weigh in favor of a lesser sentence absent circumstances showing an excessive undue hardship) (citing Benefield v. State, 904 N.E.2d 239, 247 (Ind.Ct.App. 2009)), trans. denied.
[¶11] Walro also claims that it reflects well on his character that he had not had a criminal conviction since 2015. Walro, however, has four prior convictions for OVWI. Walro was given the grace of probation and home detention in the past, but he violated his probation. He even has a prior conviction for "possession of a device or substance used to cheat a drug or alcohol screen while he was on probation." Tr. Vol. II pp. 37-38. Walro also has a prior conviction for operating a vehicle as an habitual traffic violator. Given the gravity, nature, and number of prior offenses in relation to the current offense, Walro's prior criminal history reflects very poorly on his character.
[¶12] Walro also claims that he is an addict who is working on his addiction issues. Although Walro successfully weaned himself off suboxone, he continued to use illicit substances, as evidenced by his current offenses. And Walro failed to explain how he has sought to address his claimed mental health issues, other than to abuse illicit drugs. In summary, we cannot say that Walro's 335-day sentence is inappropriate in light of the nature of his offenses or his character.
Conclusion
[¶13] After giving due consideration to the trial court's decision, we cannot say that Walro's 335-day sentence is inappropriate in light of the nature of Walro's offenses or Walro's character. Accordingly, we affirm the trial court's judgment.
[¶14] Affirmed.
May, J., and DeBoer, J., concur.