MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                           FILED
court except for the purpose of establishing                          Dec 19 2017, 10:17 am

the defense of res judicata, collateral                                    CLERK
                                                                       Indiana Supreme Court
estoppel, or the law of the case.                                         Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                   Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                 Attorney General of Indiana
Brooklyn, Indiana
                                                        Larry D. Allen
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Mouhamadou M. Sow,                                      December 19, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        32A05-1707-CR-1692
        v.                                              Appeal from the Hendricks
                                                        Superior Court
State of Indiana,                                       The Honorable Rhett M. Stuard,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        32D02-1604-F3-20



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A05-1707-CR-1692 | December 19, 2017       Page 1 of 10
                                          Statement of the Case
[1]   Mouhamadou Sow (“Sow”) appeals his convictions, entered following a guilty

      plea, for Level 3 felony operating a motor vehicle while intoxicated (“OVWI”)

      causing serious bodily injury and leaving the scene 1 and two counts of Level 6

      felony OVWI causing serious bodily injury.2 On appeal, he argues that the trial

      court abused its discretion by failing to consider a mitigating factor and that his

      sentence was inappropriate. Because we find that the trial court did not abuse

      its discretion and that Sow’s sentence was not inappropriate, we affirm the trial

      court’s decision.


[2]   We affirm.


                                                    Issues
                  1. Whether the trial court abused its discretion when it sentenced
                     Sow.

                  2. Whether Sow’s sentence was inappropriate.

                                                     Facts
[3]   Around 8 a.m. on April 16, 2016, Sow was driving westbound on U.S. 40 near

      Plainfield when he crossed the double yellow line into oncoming traffic. Nikki

      Shoultz (“Shoultz”) was driving eastbound in the lane that Sow entered and




      1
          IND. CODE § 9-26-1-1.1(a)(2).
      2
          I.C. § 9-30-5-4(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 32A05-1707-CR-1692 | December 19, 2017   Page 2 of 10
      was unable to avoid his car as there were cars in the lane next to her. As a

      result, Sow collided into Shoultz’s car, head-on and going full speed.


[4]   Shoultz’s thirteen-year-old daughter and her daughter’s thirteen-year-old friend,

      Brooke (“Brooke”), were in the backseat of Shoultz’s car at the time of the

      crash. After the crash, Shoultz exited the car to check on both of the teenagers

      and saw that Brooke’s face was covered in blood. Brooke’s face had hit the side

      of the arm rest in the back seat, and she had lost two of her front, permanent

      teeth. However, both teenagers were able to walk, and Shoultz took them to

      the side of the road where Sow was already sitting.


[5]   A witness who had seen the crash called 9-1-1. When police and ambulance

      personnel started to arrive, Sow got up and started “walking briskly” up a

      nearby hill. (Tr. Vol. 2 at 18). He then hid from police officers until he was

      finally intercepted by a K-9 officer and surrendered himself.


[6]   Once Sow was in police custody, Corporal Zach Gadawski (“Corporal

      Gadawski”) with the Plainfield Police Department detected an “odor of

      marijuana about him.” (Tr. Vol. 2 at 29). Corporal Gadawski conducted a pat

      down search and discovered a small bag of a “green leafy substance” that later

      tested positive for marijuana in Sow’s front pocket. (Tr. Vol. 2 at 30). Officers

      also discovered several Budweiser beer cans in the back of Sow’s vehicle and

      noticed that Sow had “red and watery eyes” and “slurred speech.” (Tr. Vol. 2

      at 30). Corporal Gadawski took Sow for a blood draw, and the blood draw

      showed that Sow had marijuana in his system and a blood alcohol content of


      Court of Appeals of Indiana | Memorandum Decision 32A05-1707-CR-1692 | December 19, 2017   Page 3 of 10
      0.148. Sow told Corproal Gadawski that he had run from the police because he

      supported his family and could not go to jail. In addition, at no point did Sow

      ask how Shoultz or the children were or express any concern for them.


[7]   Shoultz and the children were taken to the hospital, where it was determined

      that Brooke had lost her two front teeth. An orthodontic specialist later told

      Brooke that she would not be able to replace her missing teeth with implants

      until she reached the approximate age of eighteen and stopped growing.

      Shoultz sustained bruising along her abdomen and chest that took three to four

      months to heal, as well as bruises to the bone marrow of her left leg.


[8]   On April 18, 2016, the State charged Sow with Level 3 felony OVWI causing

      serious bodily injury and leaving the scene of the accident; Class A

      misdemeanor OVWI; Class B misdemeanor public intoxication and

      endangering another person; and three traffic infractions. On December 2,

      2016, the State amended the charging information and charged Sow with the

      following additional counts: two counts of Level 6 felony OVWI causing

      serious bodily injury; two counts of Level 6 felony operating per se (drugs)

      causing serious bodily injury; and Class B misdemeanor possession of

      marijuana.


[9]   On June 23, 2017, Sow pled guilty to Level 3 felony OVWI causing serious

      bodily injury and leaving the scene and two counts of Level 6 felony OVWI

      causing serious bodily injury. In exchange, the State dismissed the remaining

      charges and agreed that Sow would have a sentencing cap of nine (9) years for


      Court of Appeals of Indiana | Memorandum Decision 32A05-1707-CR-1692 | December 19, 2017   Page 4 of 10
       his Level 3 felony and two and one half (2½) years each for his Level 6 felonies,

       with all sentences to be served concurrently.


[10]   Subsequently, the trial court accepted the plea agreement and held a sentencing

       hearing. At the hearing, Shoultz testified that Brooke had undergone a number

       of procedures as a result of her injuries. According to Shoultz, Brooke now

       wears temporary teeth and has a speech impediment. Shoultz also testified that

       her daughter gets “very very upset” when she sees accidents and remembers the

       “trauma of that day . . . .” (Tr. Vol. 2 at 26).


[11]   Next, Sow spoke at the sentencing hearing and explained that he is an

       immigrant from Senegal who has lived in the United States since 2013. His

       wife, who is an American citizen, had separated from him in 2014 as a result of

       his drinking problems. At the time of the sentencing hearing, according to Sow,

       he was “just short of being able to obtain citizenship,” in terms of his time in

       the United States, but was no longer going to be able to obtain citizenship

       because of his convictions. (Tr. Vol. 2 at 46). Sow testified that it was his

       understanding that he was instead going to be deported.


[12]   With respect to his criminal history, Sow acknowledged that he had previously

       been charged with disorderly conduct and public intoxication in another cause.

       In October 2015, he had entered into a pre-trial diversion agreement, and that

       agreement had been pending when he committed the current offenses.


[13]   Sow’s Alcoholics Anonymous (“AA”) sponsor also testified at the sentencing

       hearing and said that Sow had been attending AA meetings twice a week since

       Court of Appeals of Indiana | Memorandum Decision 32A05-1707-CR-1692 | December 19, 2017   Page 5 of 10
       October of 2016. During this time, the sponsor had seen Sow show “a real

       desire to stay sober.” (Tr. Vol. 2 at 39). He also noted that Sow had not

       relapsed at all during that time.


[14]   At the conclusion of the sentencing hearing, the trial court sentenced Sow to an

       executed term of four (4) years for his Level 3 felony OVWI causing serious

       bodily injury and leaving the scene conviction and to two and one half (2½)

       years for each of his Level 6 felony OVWI causing serious bodily injury

       convictions. The trial court also ordered the sentences to be served

       concurrently. Thus, the trial court imposed an aggregate sentence of four (4)

       years, which was less than the term allowed by Sow’s plea agreement.


[15]   In support of this sentence, the court found as aggravating factors that: (1) the

       injuries sustained by the victims were greater than necessary to prove the

       offenses, including “a very severe injury to a thirteen-year-old girl;” (2) Sow had

       a pending pre-trial diversion agreement at the time of his offense; and (3) Sow

       had a recent criminal history at the time of the offense. As mitigating factors,

       the trial court found that Sow had: (1) “[led] primarily a law-abiding life;” (2)

       was likely to respond to probation and short-term imprisonment; and (3) was

       remorseful for his actions. (Tr. Vol. 2 at 62). The trial court also noted,


               the taxpayers in the State of Indiana are going to house Mr. Sow,
               [] pay for his food and clothing, shelter and all that, [] depending
               on how long [] I [choose] to sentence him for. And then as a
               result of that he’s going to be deported back to Senegal and it, . . .
               there’s a part of me that says . . . why should the taxpayers foot
               that bill if he’s going to be leaving the United States[?]

       Court of Appeals of Indiana | Memorandum Decision 32A05-1707-CR-1692 | December 19, 2017   Page 6 of 10
       (Tr. Vol. 2 at 61). Sow now appeals his sentence.


                                                   Decision
[16]   On appeal, Sow argues that: (1) the trial court abused its discretion when it

       sentenced him because it failed to consider one of his proffered mitigating

       factors; and (2) his sentence was inappropriate in light of the nature of his

       offenses and his character. We will address each of these issues in turn.


       1. Mitigating Factors


[17]   First, Sow argues that the trial court abused its discretion when it sentenced him

       because it failed to identify his inevitable deportation as a mitigating factor as

       he had requested. 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. We will find an

       abuse of discretion 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.

       Court of Appeals of Indiana | Memorandum Decision 32A05-1707-CR-1692 | December 19, 2017   Page 7 of 10
[18]   Although a sentencing court must consider all evidence of mitigating factors

       offered by a defendant, the finding of mitigating factors rests within the court’s

       discretion. Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002). A trial court is

       neither required to find the presence of mitigating factors, Fugate v. State, 608

       N.E.2d 1370, 1374 (Ind. 1993), nor obligated to explain why it did not find a

       factor to be significantly mitigating. Sherwood v. State, 749 N.E.2d 36, 38 (Ind.

       2001). A defendant who claims that the trial court failed to find a mitigating

       factor must establish that the mitigative evidence was both significant and

       clearly supported by the record. Anglemyer, 868 N.E.2d at 493.


[19]   Here, the trial court acknowledged the potential that Sow would be deported

       but did not find that potential to be a mitigating circumstance. Sow argues that

       this decision was an abuse of discretion, but we have previously held that a trial

       court is not required to find a defendant’s potential deportation to be a

       mitigating factor. See Mendoza v. State, 737 N.E.2d 784, 788 (Ind. Ct. App.

       2000) (finding that the trial court did not abuse its discretion when it did not

       find that the defendant’s potential deportation was a mitigating factor), reh’g

       denied. See also Hunter v. State, 72 N.E.3d 928, 935 (Ind. Ct. App. 2017) (“[T]he

       court is neither obligated to accept the defendant’s arguments as to what

       constitutes a mitigating factor nor required to give the same weight to a

       proposed mitigating factor as does the defendant.”), trans. denied. Because the

       trial court was not required to consider Sow’s deportation a mitigating factor,

       we conclude that the trial court did not abuse its discretion.


       2. Inappropriate Sentence

       Court of Appeals of Indiana | Memorandum Decision 32A05-1707-CR-1692 | December 19, 2017   Page 8 of 10
[20]   Next, Sow argues that his aggregate four-year executed sentence was

       inappropriate in light of the nature of his offenses and his character. Under

       Indiana Appellate Rule 7(B), we may revise a sentence if it is inappropriate in

       light of the nature of the offense and the character of the offender. 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.


[21]   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.

       Sow pled guilty to one Level 3 felony and two Level 6 felonies. A Level 3

       felony carries a sentencing range of three (3) to sixteen (16) years, with an

       advisory sentence of nine (9) years. I.C. § 35-50-2-5. A Level 6 felony carries a

       sentencing range of six (6) months to two and one half (2½) years with an

       advisory sentence of one (1) year. I.C. § 35-50-2-7. Here, the trial court




       Court of Appeals of Indiana | Memorandum Decision 32A05-1707-CR-1692 | December 19, 2017   Page 9 of 10
       sentenced Sow to an aggregate of four (4) years, which was five (5) years less

       than the advisory term for his three concurrent sentences.


[22]   The nature of Sow’s offense involved him driving intoxicated with a blood

       alcohol level of 0.148 and marijuana in his system. He crashed into Shoultz’s

       car, causing serious injuries to her and her daughter’s friend. Then, instead of

       checking to see whether Shoultz and the two children were okay, he attempted

       to escape from police.


[23]   As for Sow’s character, the State had recently charged Sow with committing

       two alcohol-related offenses (disorderly conduct and public intoxication), and

       Sow had a pending pre-trial diversion agreement relating to those two charges

       at the time of the instant offenses.


[24]   In light of these factors, we conclude that the trial court’s sentence was not

       inappropriate. Sow seems to suggest that his sentence should reflect evidence of

       his good character in the record, including his attempts to seek treatment and

       his decision to plead guilty. However, we find that the trial court’s sentence

       took his assertion into account. Sow received five years less than the advisory

       sentence for his Level 3 felony conviction, meaning that his aggregate sentence

       was close to the minimum sentence he could receive. Such a sentence was not

       inappropriate in light of the nature of his offenses and his character.


[25]   Affirmed.


       Kirsch, J., and Bailey, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 32A05-1707-CR-1692 | December 19, 2017   Page 10 of 10
