                                                                               FILED
                                                                        Dec 11 2017, 9:47 am

                                                                               CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
William W. Gooden                                      Curtis T. Hill, Jr.
Mt. Vernon, Indiana                                    Attorney General of Indiana
                                                       Jesse R. Drum
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jonathon D. Reis,                                      December 11, 2017
Appellant-Defendant,                                   Court of Appeals Case No.
                                                       65A01-1707-CR-1563
        v.                                             Appeal from the Posey Superior
                                                       Court
State of Indiana,                                      The Honorable S. Brent Almon,
Appellee-Plaintiff.                                    Judge
                                                       Trial Court Cause No.
                                                       65D01-1702-F5-86



Robb, Judge.




Court of Appeals of Indiana | Opinion 65A01-1707-CR-1563 | December 11, 2017                     Page 1 of 13
                               Case Summary and Issue
[1]   Following a guilty plea, Jonathon Reis was convicted of operating a motor

      vehicle while privileges are forfeited for life, a Level 5 felony, and operating a

      vehicle while intoxicated endangering a person, a Class A misdemeanor. Reis

      was sentenced to a term of five years for the Level 5 felony to be executed at the

      Indiana Department of Correction and a consecutive term of one year for the

      Class A misdemeanor to be served in a community corrections program. He

      now appeals, raising for our review the sole issue of whether his sentence is

      inappropriate in light of his character and the nature of his offense. Concluding

      his sentence is not inappropriate, we affirm.



                           Facts and Procedural History
[2]   Early in the morning on February 19, 2017, police officers found a white

      Chevrolet SUV on Highway 62 in Posey County. The SUV was running, in

      drive, and facing south blocking both westbound lanes of traffic. Officers

      attempted to wake the driver, later identified as Reis, to no avail. Reis lifted his

      foot off the brake and the vehicle rolled into a guardrail. Once the vehicle came

      to a stop, officers unlocked the vehicle, shut it off, and again attempted to wake

      Reis. While doing so, officers observed a nearly empty bottle of vodka on the

      passenger floorboard. When officers were finally able to wake Reis, they

      removed him from the vehicle. Reis’s balance was “very unsteady,” he smelled

      of alcoholic beverages, and he repeatedly replied, “mother fu****” to officers’

      questions. Appellant’s Appendix, Volume II at 13.

      Court of Appeals of Indiana | Opinion 65A01-1707-CR-1563 | December 11, 2017   Page 2 of 13
[3]   Officers learned Reis’s driver’s license was suspended for life as an habitual

      traffic offender and he was administered a portable breath test, which revealed a

      blood alcohol content (“BAC”) of .21. Reis acknowledged his license was

      suspended and when asked why he was an habitual traffic offender he

      responded, “same sh**.” Id. At the jail, Reis refused to take the breathalyzer

      but agreed to another portable breath test, which again revealed a BAC of .21.

      Reis stated that he wished he was still in the beer phase of his life but he drank

      vodka.


[4]   The State charged Reis with operating a motor vehicle while privileges are

      forfeited for life, a Level 5 felony, and operating a vehicle while intoxicated

      endangering a person, a Class A misdemeanor. Reis pleaded guilty as charged.


[5]   At sentencing, the trial court placed a “great deal of weight” on the defendant’s

      prior criminal record which includes seventeen prior convictions. Transcript,

      Volume 2 at 31. The trial court also noted Reis’s “terrible alcohol problem”

      and that the circumstances of his offenses were “egregious” before sentencing

      Reis to five years in the Indiana Department of Correction and one year in a

      community corrections program. Id. at 32-33. Reis now appeals his sentence.



                                Discussion and Decision
                                     I. Standard of Review
[6]   We may review and revise criminal sentences pursuant to the authority derived

      from Article 7, Section 6 of the Indiana Constitution. Indiana Appellate Rule

      Court of Appeals of Indiana | Opinion 65A01-1707-CR-1563 | December 11, 2017   Page 3 of 13
      7(B) empowers us to revise a sentence “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.” Because a trial court’s

      judgment “should receive considerable deference[,]” our principal role is to

      “leaven the outliers.” Caldwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008).

      “Such deference should prevail 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). The defendant bears the burden to

      persuade this court that his or her sentence is inappropriate, Childress v. State,

      848 N.E.2d 1073, 1080 (Ind. 2006), and we may look to any factors appearing

      in the record for such a determination, Stokes v. State, 947 N.E.2d 1033, 1038

      (Ind. Ct. App. 2011), trans. denied.


                                 II. Inappropriate Sentence
                                 A. Indiana Appellate Rule 7(B)
[7]   Reis argues his sentence is inappropriate in light of his character. Regarding the

      nature of the offense Reis concedes, “The trial court correctly found that the

      nature of the offense in this case was egregious. The defendant agrees with that

      assessment.” Brief of Appellant at 11. The State argues that because Reis does

      not put forth an argument regarding the nature of the offense, he therefore

      waives review of the inappropriateness of his sentence, relying upon the recent


      Court of Appeals of Indiana | Opinion 65A01-1707-CR-1563 | December 11, 2017   Page 4 of 13
      decision from a panel of this court in Sanders v. State, 71 N.E.3d 839 (Ind. Ct.

      App. 2017), trans. denied. There, the court explained:


              Revision of a sentence under Rule 7(B) requires the appellant to
              demonstrate that his sentence is “inappropriate in light of the
              nature of the offense and the character of the offender.” Ind.
              Appellate Rule 7(B) (emphasis added). That language is clear:
              Rule 7(B) plainly requires, as this court has long acknowledged,
              “the appellant to demonstrate that his sentence is inappropriate
              in light of both the nature of the offenses and his character.”
              Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008)[.]
              Because [defendant] has failed to present any authority or
              analysis on the issue of the nature of his offenses, he has waived
              our review of the inappropriateness of his sentence.


      Id. at 843-44 (some citations omitted).


[8]   However, our jurisprudence on this issue is far from settled and we respectfully

      disagree with Sanders’ interpretation of Rule 7(B). Just one year ago, faced with

      a similar waiver argument in Connor v. State, 58 N.E.3d 215 (Ind. Ct. App.

      2016), we wrote:


              In fact, our courts have frequently treated the two prongs as
              separate inquiries to ultimately be balanced in determining
              whether a sentence is inappropriate. See, e.g., Eckelbarger v. State,
              51 N.E.3d 169, 170-71 (Ind. 2016) (revising defendant’s sentence
              from thirty-two years to sixteen years upon finding the nature of
              his offenses—drug offenses facilitated by a State informant—did
              not warrant consecutive sentences, without also discussing
              whether his character warranted revision); Isom v. State, 31
              N.E.3d 469, 494 (Ind. 2015) (noting “[t]he character of the
              offender, rather than the nature of the offense, presents
              [defendant’s] strongest support for revision[,]” but ultimately

      Court of Appeals of Indiana | Opinion 65A01-1707-CR-1563 | December 11, 2017   Page 5 of 13
        declining to revise the sentence because the nature of the offenses
        “far outweigh his otherwise favorable character”), cert. denied, –––
        U.S. ––––, 136 S.Ct. 1161, 194 L.Ed.2d 175 (2016); Rice v. State,
        6 N.E.3d 940, 947 (Ind. 2014) (stating, in declining to revise
        defendant’s sentence, “[w]e are thus not convinced that either the
        nature of the offense or the character of the offender warrants a
        revision”) (emphasis added); Cardwell, 895 N.E.2d at 1226
        (revising defendant’s sentence without considering the nature of
        the defendant’s character because “the record contains a number
        of inconclusive factors on which the trial court made no
        findings”); Schaaf v. State, 54 N.E.3d 1041, 1044 (Ind. Ct. App.
        2016) (revising a sentence upon finding that although the
        defendant’s criminal history was significant and would make a
        below-advisory sentence too lenient, the nature of his “relatively
        minor” offenses rendered his above-advisory sentences too
        harsh); Norris v. State, 27 N.E.3d 333, 336 (Ind. Ct. App. 2015)
        (acknowledging defendant’s criminal history but revising
        sentence as inappropriate due to “the relatively innocuous nature
        of this offense”); Williams v. State, 891 N.E.2d 621, 633–35 (Ind.
        Ct. App. 2008) (revising defendant’s sentence on the basis of the
        nature of his offense even though defendant did not make an
        argument regarding his sentence in light of his character);
        Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007)
        (revising defendant’s sentence “[a]fter due consideration of [his]
        minimal criminal history, probation violations, and guilty plea,”
        which are all factors weighing on defendant’s character).


Id. at 218-19 (footnotes omitted). We concluded that although Rule 7(B) states

we may revise a sentence we find to be inappropriate “in light of the nature of

the offense and the character of the offender,” (emphasis added), we view the

wording of the rule as a statement requiring us to consider both prongs in our

assessment, “and not as a requirement that the defendant must necessarily prove

each of those prongs render his sentence inappropriate.” Id. at 219.

Court of Appeals of Indiana | Opinion 65A01-1707-CR-1563 | December 11, 2017   Page 6 of 13
[9]    Notably, after Connor was decided and one month before Sanders was handed

       down, our supreme court reviewed a defendant’s contention that his sentence

       was inappropriate based solely on his character in Shoun v. State, 67 N.E.3d 635

       (Ind. 2017). There, the defendant did “not dispute the severe nature of the

       crime and focuse[d] his argument on his character—that is, his alleged

       intellectual disability as evidenced by his low IQ and his ‘compromised

       psychological state.’” Id. at 642. Rather than deem the defendant’s Rule 7(B)

       argument waived, our supreme court concluded that the defendant’s

       “arguments that his character makes his . . . sentence inappropriate are not

       persuasive.” Id.


[10]   Contrary to the “clear” reading of Rule 7(B) Sanders purports, panels of this

       court have continued to interpret Rule 7(B) consistently with Connor. In McFall

       v. State, 71 N.E.3d 383 (Ind. Ct. App. 2017), a panel of this court found the

       defendant’s sentence inappropriate based solely upon considerations of the

       defendant’s character. Regarding the nature of the offense, the court noted

       only, “McFall manufactured methamphetamine in a drug house in which a

       housemate’s children also lived.” Id. at 390. The court then concluded:


               Given that this is McFall’s first felony conviction and the
               progress that she has made since her arrest to overcome her
               addiction and get her life in order, we believe that an above-
               advisory sentence is inappropriate.


       Id. at 391.




       Court of Appeals of Indiana | Opinion 65A01-1707-CR-1563 | December 11, 2017   Page 7 of 13
[11]   Similarly, in Holmes v. State, 2017 WL 4665791 (Ind. Ct. App. Oct. 18, 2017),

       the defendant conceded the nature of his offense was “extremely serious[,]” id.

       at *4, and the court went on to weigh the defendant’s character, stating:


                As for [the defendant’s] character, she argues that she was raised
                in deplorable conditions, had no criminal history before this case,
                was employed “in an attempt to provide for her children,” and
                “appeared to express sincere remorse at the time of her
                sentencing.” But even considering these things in [the
                defendant’s] favor, they do not overcome the horrific nature of
                the offense in Count I, as relayed by the trial court and exhibited
                by the photographs in this case. Homes has failed to persuade us
                that her forty-year sentence for Count I is inappropriate.


       Id. at *5.


[12]   We continue to view Connor’s interpretation of Rule 7(B) as consistent with the

       purpose of the rule, our constitutional prerogative from which the rule is

       derived, and principles of justice. Indeed, requiring a defendant to prove each of

       the prongs in order to render his sentence inappropriate can lead to absurd

       results and require defendants to mount disingenuous arguments on appeal.1

       As we noted in Connor, this interpretation of Rule 7(B) does not lessen a

       defendant’s burden; rather, the burden may be “heightened by the need to prove

       the nature of his character should overcome the admittedly serious nature of his




       1
         As we explained in Connor, “no one could dispute with a straight face that every child molesting offense is
       heinous[.]” 58 N.E.3d at 220. Requiring an appellant to prove both prongs of Rule 7(B) forces an appellant
       to launch disingenuous arguments regarding the nature of a horrendous offense. This interpretation also
       discourages candor to this tribunal and wastes valuable judicial resources.

       Court of Appeals of Indiana | Opinion 65A01-1707-CR-1563 | December 11, 2017                      Page 8 of 13
       offense.” 58 N.E.3d at 220. Therefore, we continue to recognize the two

       prongs of Rule 7(B) to be separate inquiries that must “ultimately be balanced

       in determining whether a sentence is inappropriate.” Id. at 218.


[13]   Accordingly, we reject the State’s argument that Reis has waived review of his

       sentence by acknowledging the egregiousness of his offenses. Notwithstanding

       this divergence of caselaw regarding Rule 7(B), we will consider both the nature

       of Reis’s offenses and his character in evaluating whether his sentence is

       inappropriate.


                                       B. Nature of the Offense
[14]   Our analysis of the “nature of the offense” portion of the appropriateness

       review begins with the advisory sentence. Clara v. State, 899 N.E.2d 733, 736

       (Ind. Ct. App. 2009). The advisory sentence is the starting point selected by the

       legislature as an appropriate sentence for the crime committed. Childress, 848

       N.E.2d at 1081. Reis pleaded guilty to a Level 5 felony and a Class A

       misdemeanor. Indiana Code section 35-50-2-6 states:


               (b) A person who commits a Level 5 felony . . . shall be
               imprisoned for a fixed term of between one (1) and six (6) years,
               with the advisory sentence being three (3) years.


       Indiana Code section 35-50-3-2 states:


               A person who commits a Class A misdemeanor shall be
               imprisoned for a fixed term of not more than (1) years . . . .




       Court of Appeals of Indiana | Opinion 65A01-1707-CR-1563 | December 11, 2017   Page 9 of 13
       The trial court sentenced Reis to five years for the Level 5 felony operating a

       motor vehicle while privileges are forfeited for life to be served consecutively to

       the maximum sentence of one year for the Class A misdemeanor operating a

       vehicle while intoxicated endangering a person.


[15]   Here, Reis endangered the community by driving intoxicated. This is

       particularly true given the fact that Reis fell asleep with his vehicle obstructing

       two lanes of traffic on a state highway in the early hours of the morning.

       Moreover, Reis’s driving privileges had been forfeited for life due to past

       convictions and he should never have been behind the wheel of the vehicle,

       intoxicated or not. Although the trial court sentenced Reis to the near-

       maximum sentence, we find the admittedly egregious nature of Reis’s offenses

       supports such a sentence.


                                    C. Character of the Offender
[16]   Reis contends his sentence is inappropriate in light of his character. The

       “character of the offender” portion of the standard refers to the general

       sentencing considerations and the relevant aggravating and mitigating

       circumstances. Williams v. State, 782 N.E.2d 1039, 1051 (Ind. Ct. App. 2003),

       trans. denied. We assess the trial court’s recognition or non-recognition of

       aggravators and mitigators as an initial guide to determining whether the

       sentence imposed was inappropriate. Stephenson v. State, 53 N.E.3d 557, 561

       (Ind. Ct. App. 2016). A defendant must still persuade the appellate court that

       his or her sentence has met the inappropriateness standard of review. Id.


       Court of Appeals of Indiana | Opinion 65A01-1707-CR-1563 | December 11, 2017   Page 10 of 13
[17]   Reis contends the failure of the trial court to consider his guilty plea renders his

       sentence inappropriate. “A guilty plea demonstrates a defendant’s acceptance

       of responsibility for the crime and extends a benefit to the State . . . . Thus, a

       defendant who pleads guilty deserves to have mitigating weight extended to the

       guilty plea in return.” Francis v. State, 817 N.E.2d 235, 237-38 (Ind. 2004)

       (citations omitted). The extent to which a guilty plea is mitigating will vary

       from case to case. Id. at 238 n.3. For example, a guilty plea may not be

       significantly mitigating when it does not demonstrate the defendant’s

       acceptance of responsibility or when the defendant receives a substantial benefit

       in return for the plea. Anglemyer v. State, 875 N.E.2d 218, 221 (Ind. 2007) (reh’g

       opinion).


[18]   The State argues Reis’s plea was “more likely the result of pragmatism than

       acceptance of responsibility and remorse[,]” because of the weight of the

       evidence against him. Brief of Appellee at 12 (quoting Anglemyer, 875 N.E.2d at

       221); see Scott v. State, 840 N.E.2d 376, 383 (Ind. Ct. App. 2006) (noting a guilty

       plea may be considered less significant where there is substantial admissible

       evidence of the defendant’s guilt), trans. denied. Weight of the evidence aside,

       Reis pleaded guilty to both counts as charged. Reis did not receive the benefit

       of reduced or dropped charges nor did he receive the benefit of a sentencing

       agreement. Therefore, because only the State received a benefit from Reis’s

       guilty pleas, this factor weighs in Reis’s favor. See Cotto v. State, 829 N.E.2d

       520, 525-26 (Ind. 2005) (holding that a guilty plea was entitled to significant

       mitigating weight where the State did not directly dismiss any charges).


       Court of Appeals of Indiana | Opinion 65A01-1707-CR-1563 | December 11, 2017   Page 11 of 13
[19]   With that said, we find Reis’s criminal record reflects so poorly on his character

       that it outweighs any positive consideration from his guilty plea. Reis has

       accumulated a total of seventeen convictions, including four felonies, over the

       preceding seven years. His convictions also include the same and similar

       offenses as these—operating a vehicle while intoxicated and operating a vehicle

       as an habitual traffic violator. Even a minor criminal record reflects poorly on a

       defendant’s character, Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App.

       2007), and Reis admits his is an “extensive record upon which the trial court

       properly placed ‘a great deal of weight.’” Br. of Appellant at 12.


[20]   Instead, Reis argues his prior sentences have failed to address his alcohol

       problem and that the “trial court’s failure to recognize that treatment options

       remained untried and available renders the near maximum prison sentence that

       [he] received inappropriate.” Br. of Appellant at 13. To the extent that Reis

       argues another sentence is more appropriate, the question under Rule 7(B) is

       not whether another sentence is more appropriate; rather, the question is

       whether the sentence imposed is inappropriate. Fonner v. State, 876 N.E.2d 340,

       344 (Ind. Ct. App. 2007). Reis fails to advance an argument regarding why his

       sentence is inappropriate in consideration of his alcohol problem.


[21]   We applaud the fact that Reis was able to be free of convictions for three and

       one-half years prior to this conviction and that he admits his alcohol problem.

       However, this is not sufficient to find his character warrants a reduction of his

       sentence. Given Reis’s lengthy criminal history and the egregious nature of his

       crimes, we cannot say his sentence is inappropriate.

       Court of Appeals of Indiana | Opinion 65A01-1707-CR-1563 | December 11, 2017   Page 12 of 13
                                              Conclusion
[22]   Reis’s sentence is not inappropriate in light of the nature of his offenses or of his

       character. We therefore affirm the sentence.


[23]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 65A01-1707-CR-1563 | December 11, 2017   Page 13 of 13
