MEMORANDUM DECISION
                                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           Oct 31 2017, 10:39 am

regarded as precedent or cited before any                                            CLERK
                                                                                 Indiana Supreme Court
court except for the purpose of establishing                                        Court of Appeals
                                                                                      and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Patrick J. Smith                                         Curtis T. Hill, Jr.
Bedford, Indiana                                         Attorney General of Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Samuel G. Tuell,                                         October 31, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         59A04-1704-CR-963
        v.                                               Appeal from the Orange Circuit
                                                         Court
State of Indiana,                                        The Honorable Steven L. Owen,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         59C01-1509-F5-902



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 59A04-1704-CR-963 | October 31, 2017          Page 1 of 14
                                       Statement of the Case
[1]   Samuel G. Tuell (“Tuell”) appeals his aggregate six-year sentence imposed

      following his guilty plea to Level 5 felony operating a vehicle while privileges

      were forfeited for life1 and Class B misdemeanor leaving the scene of an

      accident.2 He argues that: (1) the trial court abused its discretion when it found

      that he had committed these offenses while out on bond for another offense in

      another county and then considered it as an aggravating circumstance; and (2)

      his aggregate six-year executed sentence is inappropriate.


[2]   In regard to the trial court’s consideration of the challenged aggravating

      circumstance, we agree with the State’s contention that the trial court

      incorrectly found that Tuell had committed the offenses in this cause while out

      on bond for another offense in another county. Instead, the record reveals that

      Tuell committed another offense in another county while out on bond in this

      cause, and that is a valid aggravating circumstance. We need not remand for

      resentencing because we can say with confidence that the trial court would have

      imposed the same sentence had it properly considered reasons that enjoy

      support in the record. Additionally, we conclude that Tuell’s aggregate

      sentence is not inappropriate, and we affirm his sentence.


[3]   We affirm.




      1
          IND. CODE § 9-30-10-17.
      2
          I.C. § 9-26-1-1.1.


      Court of Appeals of Indiana | Memorandum Decision 59A04-1704-CR-963 | October 31, 2017   Page 2 of 14
                                                       Issues
              1. Whether the trial court abused its discretion when sentencing
              Tuell.

              2. Whether Tuell’s sentence is inappropriate pursuant to Indiana
              Appellate Rule 7(B).

                                                        Facts
[4]   On September 17, 2015, Tuell, whose driving privileges had been forfeited for

      life in 1995, drove a car in Orange County. He drove the car off the road and

      into a ditch and then walked away from the scene of the accident. The State

      charged Tuell with Level 5 felony operating a vehicle while privileges were

      forfeited for life and Class B misdemeanor leaving the scene of an accident.

      Thereafter, the trial court released Tuell on bond.


[5]   On October 14, 2016, while Tuell was still out on bond in this cause, the State

      charged Tuell with Class A misdemeanor battery resulting in bodily injury

      based on the allegation that he had battered a woman in Lawrence County in

      August 2016. Thereafter, upon a petition filed by the State, the trial court

      revoked Tuell’s bond.


[6]   On February 27, 2017, the trial court held a final pretrial conference before the

      scheduled March 14, 2017 jury trial.3 During that conference, the trial court

      asked the parties if they had reached a plea agreement. After the parties replied




      3
       The record on appeal does not include a transcript of the February 27, 2017 conference; however, the trial
      court set forth a record of that conference during the March 10, 2017 pretrial hearing.

      Court of Appeals of Indiana | Memorandum Decision 59A04-1704-CR-963 | October 31, 2017           Page 3 of 14
      that there was no agreement, the trial court informed them that Tuell’s trial

      would be scheduled as a first setting.


[7]   A few days later, on March 3, 2017, the parties contacted the trial court via a

      telephonic conference and indicated that they had reached a plea agreement in

      which Tuell would plead guilty as charged and receive an aggregate sentence of

      three years to be served on home detention. The trial court informed the parties

      that the plea was too late, and it stated that, even if the plea agreement had been

      timely, it still would have rejected the proposed plea because it was not an

      appropriate plea agreement and sentence given Tuell’s criminal history and the

      nature of the offense. On March 6, 2017, Tuell filed a motion to reconsider the

      negotiated plea, and the trial court denied his motion.


[8]   On March 10, 2017, the trial court held a pretrial hearing. During the hearing,

      Tuell decided to plead guilty as charged without a plea agreement. The trial

      court accepted Tuell’s guilty plea and ordered the probation department to

      compile a presentence investigation report (“PSI”).


[9]   Subsequently, at Tuell’s sentencing hearing, the PSI revealed that Tuell, who

      was sixty-two years old at the time of sentencing, had an extensive criminal

      history. He had accumulated nineteen convictions from 1977 to 2016. Among

      his numerous convictions, he had multiple convictions relating to: (1) driving

      while having a suspended license (e.g., driving while suspended in 1993 and

      1994; operating a vehicle as an habitual traffic violator in 1995; and operating a

      vehicle after a lifetime suspension in 1997 and 2011); (2) alcohol and drug use


      Court of Appeals of Indiana | Memorandum Decision 59A04-1704-CR-963 | October 31, 2017   Page 4 of 14
       (e.g., public intoxication in 1992 and 2009; and possession of marijuana in

       1997); (3) drinking and driving (e.g., operating while intoxicated in 1983 in

       Ohio; driving under the influence in 1985 in Ohio; operating a vehicle while

       intoxicated in 1992 and 1993; and operating a vehicle with an ACE of .15 or

       more in 2001); and sex offenses (e.g., attempted rape in 1985 in Ohio; child

       molesting in 2007; and failure to register as a sex offender in 2009). These

       convictions included executed time in jail and the Indiana Department of

       Correction, probation, and court-ordered participation in drug treatment

       programs. During the hearing, the State also pointed out that Tuell’s bond had

       been revoked in this cause because he had been charged with committing

       battery in Lawrence County while out on bond.


[10]   Tuell’s counsel conceded that Tuell had a lengthy criminal history. His counsel

       acknowledged that Tuell, who had a lifetime suspension of his license, had

       driven his car into a ditch, but he attempted to minimize the offense by arguing

       that no people had been injured or property damaged. Tuell’s counsel asked

       the trial court to sentence Tuell to the presumptive term of three years to be

       served on “home incarceration[.]” (Tr. Vol. 4 at 12).


[11]   When sentencing Tuell, the trial court discussed the mitigating circumstances

       and aggravating circumstances as it enhanced Tuell’s sentences and imposed

       concurrent sentences for the two convictions. The trial court stated it would

       consider Tuell’s willingness to plead guilty and hardship to dependents as

       mitigating circumstances and noted that it considered the weight of the

       hardship mitigator to be minimal compared to the guilty plea mitigator. When

       Court of Appeals of Indiana | Memorandum Decision 59A04-1704-CR-963 | October 31, 2017   Page 5 of 14
reviewing aggravating circumstances, the trial court discussed, in detail, Tuell’s

criminal history, including most notably the fact that Tuell’s current conviction

for operating a vehicle while privileges were forfeited for life was the fourth

conviction for this type of offense. The trial court also recounted Tuell’s history

of other convictions (including his numerous alcohol-related driving offenses,

various sex offenses, and theft), and it pointed out that Tuell continued to

disregard the law and had “numerous revocation of probations that ha[d] been

filed” against him. (Tr. Vol. 4 at 16). The trial court stated, in relevant part, as

follows:


        Um, the Court finds that your criminal history, ah, is extensive,
        it’s continuing. You don’t follow the Court’s orders. Putting you
        on home incarceration, wouldn’t – wouldn’t work, it didn’t work,
        it didn’t look like putting you on probation in the past worked.
        Um, so that sort of leaves the Court in a bind. So the Court will
        find that there are aggravating circumstances and it is certainly
        the criminal history that you have amassed over your life time. It
        is also the nature of the criminal history, it’s not just driving
        offenses. It’s driving offenses combined with ah, alcohol offenses
        and ah, also combined with sexual offenses. Um, looks like to
        me you should be a[n] Habitual Offender, um, however [it] was
        not charged that way. Ah, maybe because of the age . . . I would
        also note that there have been numerous attempts by Court’s [sic]
        in your history to try to reform you. Either through drug and
        alcohol treatments or putting you on probation. You have been
        an utter failure in every one of those. Um, whether it be a minor
        failure or a major failure. I would think that if you’re placed if
        you have committed a sex offense and you’re not registering I
        consider that to be a major failure. Um, if you are convicted [of]
        being a[n] Habitual Traffic Violator and you go out and commit
        three (3) more of those offenses I consider that to be a major
        failure. Um, so, the Court finds that you are not a candidate ah,

Court of Appeals of Indiana | Memorandum Decision 59A04-1704-CR-963 | October 31, 2017   Page 6 of 14
               we, the Court would find that the aggravating circumstances far
               outweigh any mitigating circumstances in this case[.]

       (Tr. Vol. 4 at 17-18).


[12]   Following the sentencing hearing, when the trial court issued its written

       sentencing order, it listed the mitigating and aggravating circumstances as

       follows:


               That the Mitigating Circumstances in this case were:

                        a) That continued incarceration would result in hardship
                        to the defendant and his family. However, the Court
                        assigns little or no weight to this circumstance, since it [is]
                        a factor that is apparent in every situation where
                        incarceration is a possibility. Also, it appears from the
                        presentence report that because of his criminal record and
                        abuse of alcohol, this defendant’s commitment to his
                        family is less than stellar.

                        b) That the defendant entered into a plea and thus avoided
                        the time and expense of a jury trial. The Court assigns
                        moderate weight to this factor[.]

               That the Aggravating Circumstances in this case were:

                        a) The Defendant’s prior criminal history is extensive and
                        wide ranging. The Defendant has at least fifteen prior
                        convictions, half of which are felonies. He has three prior
                        felony convictions for HTV type offenses and has served
                        executed sentences for those crimes. He also has three
                        prior convictions for sex offenses: Attempted Rape, Child
                        Molesting, and Failure to Register as a Sex Offender. This
                        Defendant has failed to abide by the direction of any Court
                        or constrained his conduct to conform with the morality



       Court of Appeals of Indiana | Memorandum Decision 59A04-1704-CR-963 | October 31, 2017   Page 7 of 14
                        and laws of our country. The Court gave this factor the
                        most weight in its analysis.

                        b) The defendant committed this offense while on bond or
                        pre-trial release for another offense. According to the pre-
                        sentence report, the Defendant had a pending
                        misdemeanor battery case in Lawrence County, Indiana
                        when he committed the present offense. The Court gave
                        great weight to this factor[.]

                        c) Based on his prior criminal record and his character,
                        this defendant is likely to re-offend. The Court gave
                        moderate weight to this factor.

               That after the Court considers both the aggravating and
               mitigati[ng] circumstances, the Court finds that the Aggravating
               Circumstances far outweigh the minimal Mitigating
               Circumstances in this case . . . .

       (App. Vol. 2 at 29-30).


[13]   The trial court imposed a six (6) year sentence for Tuell’s Level 5 felony

       operating a vehicle while privileges were forfeited for life conviction and a one

       hundred and eighty (180) day sentence for his Class B misdemeanor leaving the

       scene of an accident conviction. The trial court ordered that the sentences be

       served concurrently; thus, the trial court imposed an aggregate executed

       sentence of six (6) years for the two convictions. Tuell now appeals.


                                                   Decision
[14]   On appeal, Tuell contends that: (1) the trial court abused its discretion when

       determining aggravating circumstances; and (2) his sentence is inappropriate.

       We will review each argument in turn.

       Court of Appeals of Indiana | Memorandum Decision 59A04-1704-CR-963 | October 31, 2017   Page 8 of 14
       1. Abuse of Discretion


[15]   Tuell contends that the trial court abused its discretion by finding that he had

       committed the two offenses in this cause while out on bond for another offense

       in another county and then considering it as an aggravating circumstance.


[16]   Sentencing decisions rest within the sound discretion of the trial court.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218 (Ind. 2007). So long as the sentence is within the statutory range, it is

       subject to review only for an abuse of discretion. Id. An abuse of discretion

       will be found where the 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. Id. A trial court may abuse its discretion in

       a number of ways, including: (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. at 490–91.


[17]   Pointing to the trial court’s list of aggravating circumstances in its written

       sentencing order, Tuell argues that the trial court’s finding that he had

       committed the two offenses in this cause while out on bond for a pending

       battery case in Lawrence County was not supported by the record. Tuell




       Court of Appeals of Indiana | Memorandum Decision 59A04-1704-CR-963 | October 31, 2017   Page 9 of 14
       contends that we should remand for resentencing so that the trial court can

       impose a sentence without the improper aggravating circumstance.


[18]   If a trial court abuses its discretion by improperly considering an aggravating

       circumstance, we need to remand for resentencing only “if we cannot say with

       confidence that the trial court would have imposed the same sentence had it

       properly considered reasons that enjoy support in the record.” Anglemyer, 868

       N.E.2d at 491.


[19]   The State acknowledges that Tuell was not on bond in Lawrence County when

       he committed the two offenses in this cause but contends that the trial court

       merely made a “misstatement” and a “simple transposition resulting from the

       reverse chronological order used in the PSI[.]” (State’s Br. 10).4 The State

       asserts that remand is not necessary because the trial court found as an

       aggravating circumstance the fact that Tuell had violated the conditions of bond

       by committing another crime while on bond. We agree with the State.


[20]   Here, it is undisputed that Tuell was on bond in this Orange County cause

       when he was charged with committing battery in Lawrence County. In its

       written sentencing statement, the trial court mistakenly found that Tuell had

       committed the two offenses in this Orange County cause when he was on bond

       for a battery offense in Lawrence County. Although the trial court conflated




       4
          The PSI listed Tuell’s convictions in reverse chronological order, with the most recent charges and
       convictions listed first, as opposed to the more common chronological order that lists the oldest convictions
       first.

       Court of Appeals of Indiana | Memorandum Decision 59A04-1704-CR-963 | October 31, 2017           Page 10 of 14
       the location of the bond and the subsequent crime, the violation of a condition

       of bond is a valid aggravator and was supported by the record. See, e.g., Croy v.

       State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011) (“A defendant’s violation of the

       conditions of bond is a valid aggravating circumstance.”), reh’g denied.

       Furthermore, we are confident that the trial court would have imposed the

       same sentence even without the violation of bond aggravator. Here, the record

       reveals that the trial court’s imposition of enhanced and concurrent sentences

       for the two convictions was based on the undisputed aggravating circumstance

       of Tuell’s extensive criminal history, including the fact that this is his fourth

       conviction for driving a vehicle while his license was suspended for life.

       Accordingly, we conclude that the trial court did not abuse its discretion when

       sentencing Tuell. See Gleason v. State, 965 N.E.2d 702, 712 (Ind. Ct. App. 2012)

       (explaining that a single aggravating circumstance may be used to enhance a

       sentence).


       2. Inappropriate Sentence


[21]   Tuell argues that his aggregate six-year sentence for his Level 5 felony operating

       a vehicle while privileges were forfeited for life and his Class B misdemeanor

       leaving the scene of an accident convictions was inappropriate. He requests

       that we revise his Level 5 felony conviction from six years to the advisory term

       of three years and to “consider placing [him] on house arrest or some other

       community corrections placement.” (Tuell’s Br. 16).




       Court of Appeals of Indiana | Memorandum Decision 59A04-1704-CR-963 | October 31, 2017   Page 11 of 14
[22]   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.


[23]   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.

       Here, Tuell pled guilty to Level 5 felony operating a vehicle while privileges

       were forfeited for life and Class B misdemeanor leaving the scene of an

       accident. A Level 5 felony has a range of one (1) to six (6) years with an

       advisory sentence of three (3) years. I.C. § 35-50-2-6. The sentencing statute

       for Class B misdemeanors provides that a fixed term of imprisonment “of not

       more than one hundred (180) days” shall be imposed. I.C. § 35-50-3-3. The

       trial court imposed concurrent sentences of six (6) years for Tuell’s Level 5




       Court of Appeals of Indiana | Memorandum Decision 59A04-1704-CR-963 | October 31, 2017   Page 12 of 14
       felony conviction and one hundred and eighty (180) days for his Class B

       misdemeanor conviction.


[24]   The nature of the offenses involved Tuell, whose driving privileges had been

       forfeited for life in 1995, driving his car into a ditch and then leaving the scene

       of the accident. Tuell attempts to minimize the nature of his Level 5 felony

       offense by arguing that it was a one-car accident and that no person was injured

       nor was he required to pay restitution for any property damage. He ignores the

       fact that his Level 5 felony was an offense simply because he drove while his

       license had been forfeited, not because he had an accident. Indeed, the nature

       of his Level 5 felony driving offense was more serious because he got into an

       accident while he was driving without a license. Moreover, the most egregious

       part of this Level 5 felony offense was that it was the fourth conviction for such

       an offense.


[25]   Turning to Tuell’s character, we acknowledge that Tuell pled guilty as charged.

       However, we note that the trial court recognized his guilty plea as a mitigating

       factor but found that it was “far outweigh[ed]” by the aggravating factor of his

       criminal history. (App. Vol. 2 at 30). Indeed, the most glaring aspect of Tuell’s

       character is his extensive criminal history. Tuell, who was sixty-two-years-old

       at the time of sentencing, has a criminal history that spans four decades. His

       convictions range from driving without a license and driving while intoxicated

       to child molesting and attempted rape. As noted by the trial court during

       sentencing, one of the most disconcerting parts of his criminal history is his

       repeated failure to reform and clear disregard for the law, which was evidenced

       Court of Appeals of Indiana | Memorandum Decision 59A04-1704-CR-963 | October 31, 2017   Page 13 of 14
       by the fact that his Level 5 felony operating a vehicle while privileges were

       forfeited for life was his fourth such conviction since 1995.


[26]   Tuell has not persuaded us that his aggregate six-year executed sentence is

       inappropriate. Therefore, we affirm the sentence imposed by the trial court for

       Tuell’s two convictions.


[27]   Affirmed.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 59A04-1704-CR-963 | October 31, 2017   Page 14 of 14
