                                                                      FILED
                                                                  Jun 29 2018, 8:26 am

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Donald R. Shuler                                           Curtis T. Hill, Jr.
Barkes, Kolbus, Rife & Shuler, LLP                         Attorney General of Indiana
Goshen, Indiana
                                                           Monika Prekopa Talbot
                                                           Supervising Deputy Attorney
                                                           General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Alonzo R. Weekly,                                          June 29, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           20A03-1712-CR-2922
        v.                                                 Appeal from the Elkhart Superior
                                                           Court
State of Indiana,                                          The Honorable Gretchen S. Lund,
Appellee-Plaintiff.                                        Judge
                                                           The Honorable Kristine A.
                                                           Osterday, Magistrate
                                                           Trial Court Cause No.
                                                           20D04-1703-F6-392



Najam, Judge.




Court of Appeals of Indiana | Opinion 20A03-1712-CR-2922 | June 29, 2018                  Page 1 of 13
                                        Statement of the Case
[1]   Alonzo R. Weekly appeals his convictions and sentence following a jury trial

      for operating a vehicle while intoxicated with a previous conviction, as a Level

      6 felony, and a habitual vehicular substance offender (“HVSO”) enhancement.

      He presents two issues for our review:


              1.       Whether the trial court abused its discretion when it
                       admitted into evidence the result of a chemical breath test
                       and the testimony of two officers.

              2.       Whether his sentence is inappropriate in light of the nature
                       of the offense and his character.


[2]   We affirm in part, reverse in part, and remand with instructions.


                                  Facts and Procedural History
[3]   At 12:41 a.m. on March 11, 2017, Officer Kevin Corona and Corporal Lee

      Brooks with the Elkhart Police Department observed Weekly driving a

      motorized scooter through an intersection “at what appeared to be a high rate

      of speed.” Tr. Vol. II at 85. The officers, who were in a marked police vehicle,

      began to follow Weekly, and they witnessed Weekly fail to stop at two stop

      signs. Accordingly, the officers initiated a traffic stop.


[4]   When Officer Corona and Corporal Brooks approached Weekly, they both

      observed that he had slurred speech and bloodshot, glassy eyes. They could

      also smell an odor of alcohol on Weekly’s breath. Based on those observations,

      Officer Corona conducted three standardized field sobriety tests on Weekly.

      Court of Appeals of Indiana | Opinion 20A03-1712-CR-2922 | June 29, 2018       Page 2 of 13
      Weekly failed the first test, and he did not complete the other two tests. Officer

      Corona then asked Weekly to submit to a certified chemical breath test at the

      police station. Weekly agreed to take the test. At that point, the officers

      transported Weekly to the police station, and Corporal Brooks performed the

      certified breath test. The results of the breath test showed that Weekly had an

      alcohol concentration of 0.207 gram of alcohol per 210 liters of breath.


[5]   The State charged Weekly with one count of operating a vehicle while

      intoxicated in a manner that endangers a person, as a Class A misdemeanor

      (Count I), and one count of operating a vehicle with an alcohol concentration

      equivalent to at least 0.15 gram of alcohol per 210 liters of breath, as a Class A

      misdemeanor (Count II). The State later added one count of operating a

      vehicle while intoxicated with a previous conviction, as a Level 6 felony, and

      alleged that Weekly was an HVSO. Prior to trial, Weekly filed a motion to

      suppress evidence alleging that the evidence against him was obtained illegally

      because “the stop was unjustified without reasonable suspicion or probable

      cause.” Appellant’s App. Vol. II at 34. The trial court denied that motion after

      a hearing.


[6]   The trial court held a bifurcated jury trial on October 23, 2017. During the first

      phase of the trial, both Officer Corona and Corporal Brooks testified to their

      observations of Weekly during the traffic stop, including the results of the field

      sobriety tests, without objection from Weekly. The State also presented as




      Court of Appeals of Indiana | Opinion 20A03-1712-CR-2922 | June 29, 2018   Page 3 of 13
      evidence, without objection, the video recording of the traffic stop. 1 And the

      State presented the results of Weekly’s chemical breath test, which the trial

      court admitted over Weekly’s objection.


[7]   At the conclusion of the first phase of his trial, the jury found Weekly guilty of

      Counts I and II. In phase two of the trial, Weekly pleaded guilty to operating a

      vehicle while intoxicated with a previous conviction, as a Level 6 felony, and he

      admitted to being an HVSO. The trial court merged the guilty verdicts for

      Counts I and II and entered judgment of conviction on the Level 6 felony and

      the HVSO enhancement. The trial court sentenced Weekly to two years with

      the Department of Correction for operating a vehicle while intoxicated with a

      previous conviction, as a Level 6 felony. And, for the HVSO enhancement, the

      trial court imposed “an additional three (3) years at the Indiana Department of

      Correction, consecutive to the sentence” for the Level 6 felony.2 Appellant’s

      App. Vol. II at 124. This appeal ensued.




      1
        Weekly affirmatively stated that he had “no objection” to the admission of the video exhibit as evidence.
      Tr. Vol. II at 98. However, Weekly did object to the publication of the video. The trial court granted the
      State’s motion to publish over Weekly’s objection.
      2
        Weekly was also on probation for two prior offenses at the time of his sentencing hearing. Accordingly,
      the trial court revoked Weekly’s probation and imposed his previously suspended sentence for one offense
      and ordered Weekly back to reporting probation for the second offense. The trial court ordered both of those
      sentences to run consecutive to the sentence imposed for the instant offense.

      Court of Appeals of Indiana | Opinion 20A03-1712-CR-2922 | June 29, 2018                         Page 4 of 13
                                        Discussion and Decision
                                     Issue One: Admission of Evidence

[8]   Weekly first contends that the trial court abused its discretion when it admitted

      into evidence the results of the chemical breath test and the officers’ testimony,

      which included their observations of Weekly following the traffic stop and the

      results of the field sobriety tests. Weekly initially challenged the admission of

      this evidence through a motion to suppress but now appeals following a

      completed trial.3 Thus, the issue is appropriately framed as whether the trial

      court abused its discretion by admitting the evidence at trial. Lanham v. State,

      937 N.E.2d 419, 421-22 (Ind. Ct. App. 2010). This court has previously held

      that


               [o]ur review of rulings on the admissibility of evidence is
               essentially the same whether the challenge is made by a pre-trial
               motion to suppress or by trial objection. [Lundquist v. State, 834
               N.E.2d 1061, 1067 (Ind. Ct. App. 2005).] We do not reweigh the
               evidence, and we consider conflicting evidence most favorable to
               the trial court’s ruling. Id. However, we must also consider the
               uncontested evidence favorable to the defendant. Id.


      Harbaugh v. State, 96 N.E.3d 102, 106 (Ind. Ct. App. 2018).




      3
        Throughout his brief on appeal, Weekly also contends that the trial court erred when it denied his motion
      to suppress. However, because Weekly appeals after a completed trial, “the question of whether the trial
      court erred in denying his motion to suppress is no longer viable.” Reinhart v. State, 930 N.E.2d 42, 45 (Ind.
      Ct. App. 2010).

      Court of Appeals of Indiana | Opinion 20A03-1712-CR-2922 | June 29, 2018                           Page 5 of 13
[9]    Weekly specifically contends that the trial court abused its discretion when it

       admitted the results of the chemical breath test over his objection and that,

       without that evidence, “there would be no remaining probative evidence

       sufficient to convict [Weekly] of Operating While Intoxicated or Operating with

       an ACE of 0.15 or greater.” Appellant’s Br. at 18. He also contends that the

       trial court committed fundamental error when it admitted into evidence the

       officers’ testimony, including their observations of Weekly during the traffic

       stop and the results of the field sobriety tests.4


[10]   Weekly asserts that the trial court should not have admitted the evidence

       because the officers did not have reasonable suspicion to stop him and,

       therefore, the stop violated his Fourth Amendment rights.5 The Fourth

       Amendment to the United States Constitution protects citizens from

       unreasonable searches and seizures. U.S. Const. amend. IV.


[11]   Our Supreme Court has held that


                [o]ur jurisprudence reflects two types of police encounters that
                implicate Fourth Amendment protection: the investigatory stop
                and the custodial arrest. Clark v. State, 994 N.E.2d 252, 261 (Ind.
                2013). An investigatory stop is generally brief in duration and is
                constitutionally permissible so long as the law enforcement
                officer “has a reasonable suspicion supported by articulable facts



       4
         Weekly alleges that the trial court committed fundamental error when it admitted the officers’ testimony
       because he did not object at trial.
       5
         While Weekly makes one reference in his brief to Article I, Section 11 of Indiana Constitution, he has not
       developed a separate argument on appeal based upon the Indiana Constitution. Accordingly, we will only
       review whether the traffic stop violated his rights under the federal constitution.

       Court of Appeals of Indiana | Opinion 20A03-1712-CR-2922 | June 29, 2018                         Page 6 of 13
                that criminal activity ‘may be afoot.’” United States v. Sokolow,
                490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting
                Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889
                (1968)). The custodial arrest constitutes a greater restriction
                upon the subject’s liberty and requires a commensurately greater
                justification: probable cause. Clark, 994 N.E.2d at 261.


       State v. Keck, 4 N.E.3d 1180, 1184 (Ind. 2014).


[12]   Here, the question is whether the police had reasonable suspicion to support a

       brief investigatory stop, i.e., a “Terry stop,” of Weekly’s motorized scooter.

       “When determining whether an officer had reasonable suspicion for a Terry

       stop, we consider whether ‘the totality of the circumstances’ presented ‘a

       particularized and objective basis’ for the officer’s belief that the subject was

       engaged in criminal activity.” Id. (quoting Sellmer v. State, 842 N.E.2d 358, 360

       (Ind. 2006)).


[13]   It is well-settled that “[i]f an officer observes a driver commit a traffic violation,

       he has probable cause—and thus also the lesser included reasonable suspicion—

       to stop that driver.” Id. And, here, both Officer Corona and Corporal Brooks

       testified that they witnessed Weekly fail to stop at two stop signs. Thus, the

       officers observed Weekly commit two traffic violations and, as such, the officers

       had probable cause to stop Weekly.6 See, e.g., Staten v. State, 946 N.E.2d 80, 83



       6
         Weekly contends that the officers did not have reasonable suspicion to stop him because “neither officer
       can testify to what the relevant speed limit was to establish that [Weekly] committed the traffic violation of
       speeding.” Appellant’s Br. at 15-16. But, while both officers testified that Weekly’s high rate of speed is
       what drew the attention of the officers, the affidavit for probable cause states that the reason for the traffic
       stop was only because Weekly had “disregarded stop signs[.]” Appellant’s App. Vol. II at 15.

       Court of Appeals of Indiana | Opinion 20A03-1712-CR-2922 | June 29, 2018                              Page 7 of 13
       (Ind. Ct. App. 2011). And as soon as Officer Corona and Corporal Brooks

       approached Weekly, they noticed that his speech was slurred, his eyes were

       bloodshot, and his breath smelled of alcohol. Weekly then attempted to

       perform three field sobriety tests, but he failed one and did not complete the

       other two. Finally, Weekly consented to a chemical breath test. The traffic

       stop and subsequent investigation did not violate Weekly’s Fourth Amendment

       rights. Weekly’s argument on appeal is simply a request for this court to

       reweigh the evidence, which we will not do. The trial court did not abuse its

       discretion when it admitted into evidence the results of the breath test that

       followed the traffic stop. See id. And the trial court did not commit any error,

       let alone fundamental error, when it admitted the testimony of the two officers.

       Accordingly, we affirm Weekly’s convictions.


                                             Issue Two: Sentencing

[14]   Weekly next contends that his sentence is inappropriate in light of the nature of

       the offense and his character. Indiana Appellate Rule 7(B) provides that “[t]he

       Court 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.” The

       Indiana Supreme Court has recently explained that:


               The principal role of appellate review should be to attempt to
               leaven the outliers . . . but not achieve a perceived “correct”
               result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). Defendant has the burden to persuade us that the
               sentence imposed by the trial court is inappropriate. Anglemyer v.

       Court of Appeals of Indiana | Opinion 20A03-1712-CR-2922 | June 29, 2018   Page 8 of 13
               State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007),
               decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).


       Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).


[15]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we

       regard a sentence as inappropriate at the end of the day 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.” Id. at 1224.

       The question is not whether another sentence is more appropriate, but rather

       whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless

       overcome by compelling evidence portraying in a positive light the nature of the

       offense (such as accompanied by restraint, regard, and lack of brutality) and the

       defendant’s character (such as substantial virtuous traits or persistent examples

       of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

       Further, the location where a sentence is to be served is an appropriate focus for

       application of our review and revise authority. See Biddinger v. State, 868 N.E.2d

       407, 414 (Ind. 2007).


[16]   Weekly was convicted of one count of operating a vehicle while intoxicated

       with a previous conviction, as a Level 6 felony, and he was found to be an

       HVSO. The sentencing range for a Level 6 felony is six months to two and one-

       half years, with an advisory sentence of one year. Ind. Code § 35-50-2-7(b)
       Court of Appeals of Indiana | Opinion 20A03-1712-CR-2922 | June 29, 2018   Page 9 of 13
       (2018). And the court shall sentence a person found to be an HVSO to an

       additional term of one to eight years of imprisonment. I.C. § 9-30-15.5-2(d).


[17]   Here, the trial court identified as mitigating factors the fact that Weekly has an

       outstanding child support obligation and that Weekly’s imprisonment will place

       a hardship on his children. The trial court also acknowledged the fact that

       Weekly’s Indiana Risk Assessment System score reflected a low risk to

       reoffend. But the trial court found the following aggravating circumstances:

       Weekly’s criminal history; that Weekly has a history of violating conditions of

       probation and community corrections; and that previous sanctions have not

       been successful in keeping Weekly from engaging in criminal activity.

       Accordingly, the trial court sentenced Weekly to an aggregate term of five years

       in the Department of Correction.


[18]   Weekly maintains that his sentence is inappropriate in light of the nature of the

       offense because “the actual actions by [Weekly] in the present case are the bare

       elements of an offense that is a Class A misdemeanor” and that his offense was

       only elevated to a Level 6 felony because of a prior offense. Appellant’s Br. at

       24. He further contends that the nature of his offense is “unremarkable” and

       that he “was cooperative with the police during the traffic stop and during his

       arrest[.]” Id. Be that as it may, we consider both the nature of the offense and

       Weekly’s character in our review. See Williams v. State, 891 N.E.2d 621, 633

       (Ind. Ct. App. 2008). And Weekly’s character persuades us that his sentence is

       not inappropriate.



       Court of Appeals of Indiana | Opinion 20A03-1712-CR-2922 | June 29, 2018   Page 10 of 13
[19]   At the time of the instant offense, Weekly’s criminal history included three

       felony convictions and four misdemeanor convictions, and three of those

       convictions were for operating a vehicle while intoxicated. And Weekly has

       had his probation revoked on one previous occasion. Further, Weekly was on

       probation for two prior instances of operating a vehicle while intoxicated when

       he committed the current offense. As such, we cannot say that Weekly’s five-

       year sentence is inappropriate in light of his character.


[20]   Weekly also asserts that his placement in the Department of Correction is

       inappropriate because his incarceration would result in a hardship on his

       children and because “there were more appropriate options to simply

       warehousing a defendant in the Department of Corrections [sic] for the entirety

       of a sentence.” Appellant’s Br. at 27. But, as the trial court found, Weekly

       “has a history of violating conditions of probation and community corrections”

       and “other sanctions previously imposed have not been successful in keeping

       [Weekly] from engaging in criminal activity.” Appellant’s App. Vol. II at 123.

       Accordingly, Weekly has not demonstrated that his placement in the

       Department of Correction is inappropriate. Weekly’s five-year sentence

       executed in the Department of Correction is not inappropriate and we affirm

       his sentence.


[21]   However, we also address the State’s contention that the trial court erred when

       it ordered the HVSO portion of Weekly’s sentence to be consecutive to the

       sentence for the felony conviction. The State contends that “the habitual

       portion should be an enhancement of the sentence for the Level 6 felony”

       Court of Appeals of Indiana | Opinion 20A03-1712-CR-2922 | June 29, 2018   Page 11 of 13
       pursuant to Indiana Code Section 9-30-15.5-2. Appellee’s Br. at 5 n.1. We

       agree.


[22]   Indiana Code Section 9-30-15.5-2 provides, in relevant part, that “[t]he court

       shall sentence a person found to be a habitual vehicular substance offender to

       an additional fixed term of at least one (1) year but not more than eight (8)

       years of imprisonment, to be added to the term of imprisonment imposed under

       IC 35-50-2 or IC 35-50-3.” I.C. § 9-30-15.5-2(d) (emphasis added).


[23]   We hold that the “to be added” language in the HVSO statute is equivalent to

       the “attach” language in Indiana’s habitual offender statute, which provides, in

       relevant part:


                Habitual offender is a status that results in an enhanced sentence.
                It is not a separate crime and does not result in a consecutive
                sentence. The court shall attach the habitual offender
                enhancement to the felony conviction with the highest sentence
                imposed and specify which felony count is being enhanced.


       I.C. 35-50-2-8(j) (emphasis added).


[24]   And it is well-settled that “‘[a] habitual offender finding does not constitute a

       separate crime nor result in a separate sentence, but rather results in a sentence

       enhancement imposed upon the conviction of a subsequent felony.’” Kilgore v.

       State, 922 N.E.2d 114, 120 (Ind. Ct. App. 2010) (quoting Greer v. State, 680

       N.E.2d 526, 527 (Ind. 1997)). Accordingly, we hold that an HVSO finding

       does not constitute a separate crime nor result in a separate sentence but is an

       enhancement to an underlying felony conviction. The trial court erred when it

       Court of Appeals of Indiana | Opinion 20A03-1712-CR-2922 | June 29, 2018   Page 12 of 13
       ordered the HVSO sentence to run as a separate, consecutive sentence. We

       reverse that portion of the sentencing order and remand to the trial court with

       instructions to resentence Weekly in accordance with this opinion. See id.


[25]   Affirmed in part, reversed in part, and remanded with instructions.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 20A03-1712-CR-2922 | June 29, 2018   Page 13 of 13
