Opinion
24A-CR-383
09-30-2024
Joseph Washington, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Gregory L. Fumarolo ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Katherine A. Cornelius 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case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 Allen Circuit Court The Honorable Jesus R. Trevino, Magistrate Trial Court Cause No. 02C01-2012-F6-1471
ATTORNEY FOR APPELLANT Gregory L. Fumarolo
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Katherine A. Cornelius Deputy Attorney General
MEMORANDUM DECISION
PYLE, JUDGE.
Statement of the Case
[¶1] Joseph Washington ("Washington") appeals, following a guilty plea, the four year and one hundred and eighty-three day sentence imposed for his Level 6 felony operating while intoxicated conviction and his habitual vehicle substance offender enhancement. Washington argues that his sentence is inappropriate. Concluding that his sentence is not inappropriate, we affirm the trial court's judgment.
I.C. § 9-30-15.5.2.
[¶2] We affirm.
Issue
Whether Washington's sentence is inappropriate.
The record does not contain a copy of Washington's guilty plea hearing. Both parties rely on the probable cause affidavit to support their facts and analysis of the nature of the offense. Because an inappropriate sentence analysis requires us to examine the nature of the offense, we, like the parties, will rely on the probable cause affidavit.
[¶3] On November 28, 2020 around 2:00 a.m., Fort Wayne Police Department officers observed a car driven by Washington veer off of the road, over a curb, and into a yard. The car's headlights were not on despite the fact that it was around 2:00 a.m. Officers observed that Washington had bloodshot eyes and smelled of alcohol. Additionally, Washington was angry and argumentative. Inside Washington's car, officers found multiple bottles of alcohol, including a bottle of beer, an open can of Smirnoff, a nearly empty bottle of Hennessy, and a half-empty bottle of gin. Washington refused both field sobriety and chemical testing. At that time, Washington was on probation from a Level 6 felony domestic battery conviction.
[¶4] In December 2020, the State charged Washington with Level 6 felony operating while intoxicated, which was divided into three parts. In Part I, the State alleged that Washington had operated a vehicle while intoxicated. In Part II, the State also alleged that Washington had a prior conviction for operating while intoxicated. In Part III, the State alleged that Washington was an habitual vehicle substance offender. In May 2021, Washington pleaded guilty to Level 6 felony operating while intoxicated without a plea agreement in exchange for the opportunity to participate in the Allen County Drug Court Program ("the Drug Court Program"). Thereafter, the trial court transferred Washington into the Drug Court Program.
[¶5] As part of Washington's participation in the Drug Court Program, he agreed, among other terms, to: (1) attend and successfully complete all assigned education, treatment/intervention, and life skills development programs; (2) not illegally possess, ingest, use, sell or distribute any legend drug, narcotic drug, controlled substance or paraphernalia; (3) not possess, ingest, or use any alcoholic beverage or use any products containing alcohol; and (4) submit to random or scheduled chemical testing. Additionally, the agreement provided that the trial court could, at its discretion, terminate Washington from the Drug Court Program if it found that Washington had failed to comply with any of the terms of the program. In July 2021 and February 2022, the trial court ordered Washington to serve jail time as a sanction for violating the terms of the Drug Court Program.
[¶6] In July 2023, a Drug Court case manager filed a petition to terminate Washington from the Drug Court Program. In the petition, the Drug Court case manager alleged that Washington had: (1) been unsuccessfully discharged from the Potter's House on July 11, 2023; (2) failed to attend a scheduled treatment session at Headwaters Counseling on July 3, 2023; (3) failed to provide employment verification in July 2023 and had misrepresented continued employment through Forge Staffing beyond June 2023; (4) failed to submit to random chemical testing twice in July 2023; and (5) tested positive for cocaine in July 2023.
[¶7] In November 2023, the Drug Court case manager amended the petition to terminate. In the amendment, the Drug Court case manager further alleged that Washington had: (1) been arrested for false informing in November 2023; and (2) failed to appear in court in July 2023. Thereafter, the trial court held a hearing on the petition to terminate. At the hearing, Washington admitted to the allegations in the petition to terminate. The trial court ordered the probation department to prepare a pre-sentence investigation report ("PSI") and set Washington's sentencing hearing for January 2024.
[¶8] In January 2024, the trial court held a sentencing hearing. At the hearing, the trial court noted that Washington had four juvenile delinquency adjudications, fourteen misdemeanor convictions, and seven felony convictions. These convictions, among others, include: (1) a 2019 felony conviction for domestic battery; (2) a 2016 felony conviction for resisting law enforcement; (3) a 2011 felony conviction for possession of cocaine; and (4) a 2007 felony conviction for resisting law enforcement. The trial court found the following aggravating factors: (1) Washington had a significant criminal history; (2) Washington had committed the current operating while intoxicated offense while on probation in another case; and (3) Washington had committed a new misdemeanor offense while participating in the Drug Court Program. The trial court also noted that attempts at rehabilitating Washington had failed. As a mitigating circumstance, the trial court found that Washington had pleaded guilty and had accepted responsibility for his actions.
[¶9] The trial court sentenced Washington to one (1) year and one hundred and eighty-three (183) days in the Indiana Department of Correction ("the DOC") for his Level 6 felony operating while intoxicated conviction. The trial court sentenced Washington to three (3) years executed at the DOC for the habitual vehicle substance offender enhancement and ordered this portion of Washington's sentence to be served consecutively. Thus, the trial court sentenced Washington to an aggregate sentence of four (4) years and one hundred and eight-three (183) days executed at the DOC. Additionally, the trial court ordered that Washington participate in the Recovery While Incarcerated program ("RWI") and told Washington that it would consider a sentence modification if Washington successfully completed the program.
The trial court ordered the entire sentence from this cause to be served consecutively to another cause that is not a part of this appeal.
[¶10] Washington now appeals.
Decision
[¶11] Washington argues that his aggregate sentence is inappropriate. 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) (internal quotation marks omitted). Whether a sentence is inappropriate ultimately turns on "the culpability of the defendant, the severity of the crime, the damage done to others, and a myriad of other factors that come to light in a given case." Id. at 1224. "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.
[¶12] 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. 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." IND. CODE § 35-50-2-7(b). A trial court "shall sentence a person found to be a[n] habitual vehicle substance offender to an additional fixed term of at least one (1) year but not more than eight (8) years[.]" I.C. § 9-30-15.5.2(d). Washington pleaded guilty to Level 6 felony operating while intoxicated, to having a prior operating while intoxicated conviction, and to being an habitual vehicle substance offender. Here, the trial court sentenced Washington to an aggregate sentence of four (4) years and one hundred and eight-three (183) days, all of which was to be served at the DOC. This is less than the maximum sentence permitted by statute.
[¶13] Turning first to the nature of the offense, Washington, while intoxicated, drove his car at 2:00 a.m. without his headlights on and veered off the road, over a curb, and into a yard. Washington had multiple containers of alcohol in his car, had bloodshot eyes, smelled of alcohol, and had been angry and argumentative.
[¶14] Turning to Washington's character, we note his criminal history to be extensive. Washington has four juvenile delinquency adjudications, fourteen misdemeanor convictions, and seven felony convictions. Washington also committed this offense while on probation, and he committed another offense while participating in the Drug Court Program. It is clear that previous attempts to rehabilitate Washington have failed.
[¶15] Washington has not persuaded this Court that his aggregate four year and one hundred and eighty-three day sentence for his Level 6 felony operating while intoxicated conviction and his habitual vehicle substance offender enhancement is inappropriate. Therefore, we affirm the sentence imposed by the trial court.
[¶16] Affirmed.
May, J., and Brown, J., concur.