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                   Apr 28 2017, 11:06 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.
Weineke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dacia N. Ward,                                           April 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A05-1611-CR-2714
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable David R. Bolk,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause Nos.
                                                         84D03-1606-F5-1587
                                                         84D03-1502-F6-475



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A05-1611-CR-2714 | April 28, 2017   Page 1 of 8
                                          Statement of the Case
[1]   Dacia N. Ward (“Ward”) appeals his sentence for his conviction of Level 6

      felony failure to return to lawful detention1 and his sentence enhancement for

      his adjudication as an habitual offender.2 He argues that his sentence was

      inappropriate in light of the nature of his offense and his character. Because we

      conclude that his sentence was not inappropriate, we affirm the trial court’s

      sentence.


[2]   We affirm.


                                                          Issue
                 Whether Ward’s sentence was inappropriate under Indiana
                 Appellate Rule 7(B).

                                                         Facts
[3]   Following convictions for Level 6 felony possession of methamphetamine and

      Class A misdemeanor possession of paraphernalia in Cause Number 84D03-

      1502-F6-475 (“Cause 475”), Ward was placed in a Vigo County Work Release

      Program on June 8, 2016. He was advised of the rules and procedures for work

      release, and he signed the work release center’s “Resident Rules and

      Regulations” form. He also initialed the following rule:




      1
          IND. CODE § 35-44.1-3-4(c).
      2
        I.C. § 35-50-2-8. This statute has since been amended, but we will apply the statute that was in effect at the
      time of Ward’s offense.

      Court of Appeals of Indiana | Memorandum Decision 84A05-1611-CR-2714 | April 28, 2017                Page 2 of 8
              7. ESCAPE: If Resident leaves the facility without being
              scheduled out or released by a VCCC staff member, fails to
              return to the facility at scheduled return time, or if a Resident is
              somewhere outside the facility without prior approval he/she will
              be charged with the crime of escape.

      (State’s Ex. 2 at 2).


[4]   Two days after his entry into the program, Ward was authorized to leave work

      release at 8:00 a.m. to search for a job. He was required to return to work

      release at noon that day but failed to return as required. He never contacted

      work release to explain his whereabouts and never returned to the work release

      center.


[5]   As a result of Ward’s failure to return to the work release center, the State

      charged him with Level 5 felony escape and Level 6 felony failure to return to

      lawful detention and alleged that Ward was an habitual offender. Additionally,

      the Probation Department alleged that he had violated his probation in Cause

      475.


[6]   At a jury trial on the charges, the State presented evidence of the above facts. A

      case manager with work release testified that individuals in the work release

      program were instructed to call “immediately” if circumstances arose while

      they were away from work release and they were unable to return by the

      expected time. (Tr. Vol. 2 at 32). The jury found Ward not guilty of his escape

      charge but guilty of Level 6 felony failure to return to lawful detention.




      Court of Appeals of Indiana | Memorandum Decision 84A05-1611-CR-2714 | April 28, 2017   Page 3 of 8
[7]   Next, the jury heard evidence on Ward’s habitual offender allegation. The

      State presented evidence that Ward had prior unrelated convictions for Class C

      felony burglary in 2012 and Class B felony burglary in 2004, in addition to his

      conviction for Level 6 felony possession of methamphetamine for which he had

      been placed in work release. At the conclusion of the evidence, the jury found

      that Ward was an habitual offender.


[8]   Thereafter, at a separate hearing, Ward admitted to violating his probation for

      his Level 6 felony possession of methamphetamine conviction in Cause 475

      when he failed to return to work release.


[9]   The trial court held a hearing on Ward’s probation revocation sanction and his

      sentence in the instant cause. At the hearing, the State requested that Ward

      receive the maximum sentence, noting that Ward had been convicted of five

      prior misdemeanors, five prior felonies, and had violated probation multiple

      times. Ward’s counsel proffered the mitigating factors that Ward had a teenage

      daughter and elderly father that needed him, that Ward had not received the

      addiction counseling he needed, and that Ward suffered from mental illness. In

      response, the State noted that even though Ward continued to have substance

      addiction problems, he had been through several treatment programs for his

      addictions. Specifically, he had “received plenty of options and opportunities at

      treatment” and yet “continue[d] to reoffend.” (Tr. Vol. 4 at 13). Ward testified

      that he was remorseful for his actions and said that he had not known “what to




      Court of Appeals of Indiana | Memorandum Decision 84A05-1611-CR-2714 | April 28, 2017   Page 4 of 8
       do at the time” of his offense because his brother had killed himself.3 (Tr. Vol. 4

       at 15).


[10]   At the conclusion of the hearing, the trial court found that Ward’s probation

       violation, the violation of his pre-trial release, and criminal history at the time

       he committed his offense were aggravating factors. The trial court noted that

       the significance of Ward’s criminal history was “over and above” that which

       was required to adjudicate Ward an habitual offender. (Tr. 18). Specifically,

       Ward had “essentially been on probation, parole, [or] had a case pending[]

       since [1990] or [1992].” (Tr. 18). Based on these factors, the trial court ordered

       Ward to serve the remainder of his previously suspended sentence in Cause

       475. It also sentenced Ward to two and one half (2½) years for his failure to

       return to lawful detention conviction in the instant case and ordered it to be

       enhanced by five (5) years for his adjudication as an habitual offender. Ward

       now appeals.


                                                        Decision
[11]   On appeal, Ward argues that his aggregate sentence of seven and one half (7½)

       years was inappropriate in light of the nature of his offense and his character. 4

       While sentencing decisions rest within the sound discretion of the trial court, a

       reviewing court may revise a sentence pursuant to Appellate Rule 7(B) if, “after



       3
        Ward did not testify to the date or circumstances of his brother’s death other than to say that his brother
       killed himself.
       4
           Ward does not appeal the trial court’s order in Cause 475 that he serve his previously suspended sentence.


       Court of Appeals of Indiana | Memorandum Decision 84A05-1611-CR-2714 | April 28, 2017                Page 5 of 8
       due consideration of the trial court’s decision,” it finds that the sentence is

       inappropriate in light of the nature of the offense and the character of the

       offender. Anglemyer v. State, 868 N.E.2d 482, 493 (Ind. 2007), clarified on reh’g,

       875 N.E.2d 218 (Ind. 2007); Childress v. State, 848 N.E.2d 1073, 1079-80 (Ind.

       2006) (quoting Ind. App. R. 7(B)). This Court is not required to use “great

       restraint,” but we nevertheless exercise deference to a trial court’s sentencing

       decision, both because Appellate Rule 7(B) requires that we give “due

       consideration” to that decision and because we recognize the unique

       perspective a trial court has when making decisions. Stewart v. State, 866

       N.E.2d 858, 865-66 (Ind. Ct. App. 2007). The “principal role of appellate

       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).


[12]   The sentencing range for Ward’s Level 6 felony conviction was six (6) months

       to two and one half (2½) years, with an advisory sentence of one (1) year. I.C.

       § 35-50-2-7. The sentencing range for his habitual offender enhancement was

       two (2) to six (6) years. I.C. § 35-50-2-8. Accordingly, Ward’s aggregate

       sentence was one (1) year less than the maximum sentence he could have

       received.


[13]   Ward argues that this sentence was inappropriate in light of the nature of his

       offense because the offense neither caused nor threatened serious harm to



       Court of Appeals of Indiana | Memorandum Decision 84A05-1611-CR-2714 | April 28, 2017   Page 6 of 8
       people or property. He also claims that he failed to return to work release

       because his brother killed himself.


[14]   While Ward did not threaten serious harm to people or property, it is notable

       that Ward failed to return to work release merely two days after he signed the

       work release center’s rules and regulations, which provided that he was

       required to return to the center at a designated time. He also failed to call the

       center and report his whereabouts or his reasons for failing to return to the

       center.


[15]   As for his character, Ward argues that much of his criminal history was related

       to his severe drug addiction and mental illness. He also notes that he had a

       difficult childhood and that he was sincerely remorseful for the “damage he had

       caused to his family and to the court by failing to return to work release.”

       (Ward’s Br. 8).


[16]   We, however, do not find that the trial court’s sentence was inappropriate.

       Ward had a significant criminal history at the time of the current offense,

       including five prior felony convictions and five prior misdemeanor convictions.

       He had been offered leniency several times in the past through probation and

       parole and had violated the conditions of his probation multiple times. As the

       trial court noted, Ward has “essentially been on probation, parole, [or] had a

       case pending[] since [1990] or [1992].” (Tr. 18). Also, with respect to Ward’s

       drug addictions, the trial court addressed his arguments and told him: “after

       twenty-three (23) years, you know, you’ve got to figure out a way, or to find a


       Court of Appeals of Indiana | Memorandum Decision 84A05-1611-CR-2714 | April 28, 2017   Page 7 of 8
       way to deal with it outside the criminal justice system, and you’ve been—for

       whatever reason, you’ve been unable or unwilling [] to do that . . . .” (Tr. Vol.

       4 at 19). We agree with the trial court’s evaluation. While Ward has struggled

       with drugs for a significant portion of his life and had a difficult childhood, at

       some point he has to find a way to deal with those factors outside of the

       criminal justice system. His extensive criminal history and his violations of

       probation—including the probation he was on when he committed the instant

       offense—indicate that he has not done so. Moreover, they demonstrate his

       blatant disregard for the law and the past leniency he has been granted.

       Accordingly, we find that the trial court’s sentence was not inappropriate.


[17]   Affirmed.


[18]   May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A05-1611-CR-2714 | April 28, 2017   Page 8 of 8
