MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Aug 07 2020, 8:39 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


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


                                           IN THE
    COURT OF APPEALS OF INDIANA

Dante M. Riley,                                          August 7, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-3002
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John T. Roach,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause Nos.
                                                         84D01-1801-F4-370
                                                         84D01-1608-F6-2331



Darden, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-3002 | August 7, 2020                  Page 1 of 11
                                          Statement of the Case
[1]   Dante M. Riley appeals the seven-year sentence the trial court imposed after he

      pleaded guilty to unlawful possession of a firearm by a serious violent felon, a
                            1
      Level 4 felony. We affirm.


                                                     Issue
[2]   Riley raises one issue, which we restate as: whether his sentence is

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


                                   Facts and Procedural History
[3]   On January 25, 2017, Riley had pled guilty in Cause Number 84D01-1608-F6-

      2331 (“F6-2331”) to maintaining a common nuisance, a Level 6 felony. In

      exchange, the State dismissed several other pending charges and an habitual

      offender sentencing enhancement. Per the terms of the plea agreement, the trial

      court imposed a two year suspended sentence and placed Riley on probation for

      two years.


[4]   On January 28, 2018, Officer Sanders of the Terre Haute Police Department

      was on routine patrol when he saw a car, driven by a person later identified as

      Riley, traveling at a high rate of speed. Riley also committed several other

      driving infractions as he drove. Sanders followed Riley and activated his

      emergency lights to signal Riley to stop. Rather than stop, Riley increased his



      1
          Ind. Code § 35-47-4-5 (2017).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3002 | August 7, 2020   Page 2 of 11
      speed and sped away. Sanders then activatted his siren and continued to

      follow.


[5]   Riley eventually drove to a gas station and parked at a pump, where Officer

      Sanders took Riley into custody. Riley had a passenger in his car, who told

      Sanders that she and Riley had just left a bar when Riley noticed Sanders’

      patrol car and chose to flee. She further stated that she had repeatedly told

      Riley to stop the car during the pursuit, but he had refused.


[6]   Officer Sanders noticed that Riley had an odor of alcoholic beverage on his

      breath. In addition, Riley had bloodshot, watery eyes. He was also unsteady

      on his feet and displayed poor manual dexterity. A computer search revealed

      that Riley’s driver’s license was suspended.


[7]   Other officers arrived on the scene and searched the car and found several

      bullets in the car’s center console, but no gun. Riley’s passenger denied that the

      bullets were hers. Officer Sanders recalled several locations during the pursuit

      where Riley could have thrown a gun from the car. He described the locations

      to other officers, who left to search them. One of the officers found a handgun

      in a yard that was located along the pursuit route. Subsequent examination

      revealed that the bullets that were found in the car matched bullets that were

      found in the handgun.


[8]   On January 30, 2018, the State filed a charging information against Riley in

      Cause Number 84D01-1801-F4-370 (“F4-370”). The State alleged that Riley

      had committed the offenses of unlawful possession of a firearm by a serious

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3002 | August 7, 2020   Page 3 of 11
       violent felon, a Level 4 felony; resisting law enforcement by use of a vehicle, a

       Level 6 felony; operating a vehicle while intoxicated with a prior conviction, a

       Level 6 felony; and driving while suspended with a prior conviction, a Class A

       misdemeanor. On February 2, 2018, the State filed a notice of probation

       violation in Cause Number F6-2331, alleging that Riley had violated the terms

       and conditions of his probation by committing the offenses charged in Cause

       Number F4-370, the instant offense.


[9]    As Cause Number F4-370 progressed to trial, Riley filed several motions to

       reduce his bond and a motion to be released to a treatment center. The trial

       court initially denied the motions. However, on July 30, 2018, the trial court

       released Riley from pretrial incarceration on his own recognizance, citing

       Indiana Criminal Rule 4(A).


[10]   On December 13, 2018, the State filed new charges against Riley under Cause

       Number 84D01-1812-F6-4338 (“F6-4338”), for acts he allegedly committed

       after he had been released from jail on July 30, 2018. Specifically, the State

       alleged that Riley had committed two counts of resisting law enforcement, one

       as a Level 6 felony and the other as a Class A misdemeanor. The State filed an

       additional notice of probation violation in Cause Number F6-2331, citing the

       new charges in Cause Number F6-4338 as an additional basis for revoking

       Riley’s probation.


[11]   On February 26, 2019, Riley filed a motion to suppress evidence in Cause

       Number F4-370. The trial court denied the motion after a hearing. On March


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3002 | August 7, 2020   Page 4 of 11
       22, 2019, the parties filed a notice of plea agreement that addressed Cause

       Numbers F6-4338, F4-370, and F6-2331, but Riley later withdrew from the

       agreement before the trial court accepted it.


[12]   On May 17, 2019, the State filed an habitual offender enhancement in Cause

       Number F4-370. On October 8, 2019, the parties informed the trial court that

       they had once again reached a plea agreement addressing all three cases, and

       they filed a copy of the plea agreement for the trial court’s review.


[13]   The plea agreement provided that in Cause Number F6-2331, Riley would

       admit to violating the terms and conditions of his probation, and he would be

       “terminated from probation unsatisfactorily.” Appellant’s App. Vol. 2, p. 222.

       The plea agreement further provided that the State would dismiss all charges in

       Cause Number F6-4338.


[14]   As for Cause Number F4-370, the plea agreement stated that Riley would plead

       guilty to unlawful possession of a firearm by a serious violent felon, a Level 4

       felony, and the State would dismiss the remaining three charges, along with the

       habitual offender sentencing enhancement. Any executed portion of Riley’s

       sentence would be capped at seven years but, otherwise, all other terms and

       conditions were left to the trial court’s discretion. In addition, after Riley had

       served seventy-five percent of the executed portion of his sentence, he would be

       permitted to file a motion for sentence modification. If Riley filed such a

       motion, the State agreed that it would not object, and the question of sentencing

       modification would be left to the discretion of the trial court.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3002 | August 7, 2020   Page 5 of 11
[15]   On October 9, 2019, the trial court held a hearing on the parties’ plea

       agreement. The trial court extensively questioned Riley and determined that

       his guilty plea was being knowingly and voluntarily entered. The trial court

       further determined that there was an adequate factual basis for acceptance of

       the plea. The trial court took the plea agreement under advisement and set a

       sentencing date.


[16]   On November 20, 2019, the trial court presided over the sentencing hearing.

       The trial court accepted the plea agreement, terminated Riley’s probation in

       Cause Number F6-2331, and dismissed with prejudice, both charges in Cause

       Number F6-4338. As for Cause Number F4-370, the trial court imposed an

       executed sentence of seven years for the conviction of unlawful possession of a

       firearm by a serious violent felon, and dismissed the remaining charges. This

       appeal followed.


                                    Discussion and Decision
[17]   Riley argues that length of his sentence is inappropriate and asks the Court to
                                                              2
       reduce the term by an unspecified amount. Article 7, section 6 of the Indiana

       Constitution authorizes this Court to review and revise sentences “to the extent

       provided by rule.” This constitutional authority is implemented through

       Appellate Rule 7(B), which provides that this Court may revise a sentence




       2
        Although Riley included Cause Number F6-2331 in his notice of appeal, he does not present any argument
       as to the termination of his probation in that case.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3002 | August 7, 2020              Page 6 of 11
       otherwise 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.”


[18]   A defendant bears the burden of persuading the appellate court that his or her

       sentence has met this inappropriateness standard of review. Childress v. State,

       848 N.E.2d 1073, 1080 (Ind. 2006). Whether a sentence should be deemed

       inappropriate turns on our sense of culpability of the defendant, the severity of

       the crime, the damage done to others, and other factors. Cardwell v. State, 895

       N.E.2d 1219, 1224 (Ind. 2008).


[19]   “[W]e must and should exercise deference to a trial court’s sentencing decision,

       both because Rule 7(B) requires us to give ‘due consideration’ to that decision

       and because we understand and recognize the unique perspective a trial court

       brings to its sentencing decisions.” Stewart v. State, 866 N.E.2d 858, 866 (Ind.

       Ct. App. 2007). Deference to the sentencing decision “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).


[20]   To assess whether a sentence is inappropriate, we look first to the statutory

       range established for the class of the offense. At the time Riley committed the

       offense of unlawful possession of a handgun by a serious violent felon, the

       possible sentencing range for a Level 4 felony was imprisonment for a fixed


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3002 | August 7, 2020   Page 7 of 11
       term of between two and twelve years, with the advisory sentence being six

       years. Ind. Code § 35-50-2-5.5 (2014). The trial court sentenced Riley to seven

       years, all executed. The seven years executed portion of Riley’s sentence is the

       maximum permissible under the parties’ plea agreement, and it is only one year

       above the advisory sentence established by statute.


[21]   Turning to the nature of the offense, Riley argues that he never attempted to use

       “or brandish” the handgun. Appellant’s Br. p. 8. Riley is correct. On the other

       hand, our review reveals that his conduct during the offense demonstrates a

       shocking lack of concern or regard for others. He led Officer Sanders on a high

       speed car chase through the city Terre Haute, posing the potential risk of harm

       to innocent pedestrians, himself, his passenger, Officer Sanders, and other

       innocent motorists. In addition, Riley attempted to dispose of his handgun by

       throwing it out of the car without any concern for where it might have landed

       or who may have found and used it. The nature of the offense does not

       demonstrate that the seven-year sentence is inappropriate.


[22]   As for the character of the offender, Riley was twenty-eight years old at

       sentencing. He has an extensive criminal record, consisting of seven felony

       convictions (burglary, strangulation, possession of marijuana, battery,

       maintaining a common nuisance, and two convictions of robbery) and six

       misdemeanor convictions (criminal recklessness, domestic battery, possession

       of marijuana, illegal consumption of alcohol, conversion, and operating a

       vehicle with an alcohol concentration equivalent of .08 or more). It appears

       that Riley has accrued new convictions every two years, demonstrating an

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3002 | August 7, 2020   Page 8 of 11
       unwillingness to comply with the law. Indeed, after he was released from

       pretrial incarceration in Cause Number F4-370 on July 30, 2018, less than five

       months later in December, 2018, he was charged with committing new offenses

       in Cause Number F6-4338.


[23]   In addition, Riley has been placed on probation nine times, including in Cause

       Number F6-2331, and has never successfully completed a period of probation.

       He was also placed on work release in one case, and violated the terms of that

       placement. The trial court commented to Riley during sentencing, “[y]our

       history doesn’t bode well in terms of being on probation, or community

       corrections either.” Tr. Vol. 2, pp. 35-36.


[24]   Riley argues that he accepted responsibility for his actions by pleading guilty. If

       the State reaps a substantial benefit from the defendant’s act of pleading guilty,

       the defendant deserves to have a substantial benefit returned. Sensback v. State,

       720 N.E.2d 1160, 1164 (Ind. 1999). But a guilty plea may not be significantly

       mitigating “when the defendant receives a substantial benefit in return for the

       plea.” Anglemyer v. State, 875 N.E.2d 218, 221 (Ind. 2007), on reh’g.


[25]   In Riley’s case, he received the following substantial benefits from pleading

       guilty: (1) the termination of probation in Cause Number F6-2331, without

       having to serve a possible two-year consecutive suspended sentence; (2) the

       dismissal of two charges, including a Level 6 felony, in Cause Number F6-4338;

       (3) the dismissal of three charges, including two Level 6 felonies, in Cause

       Number F4-370, along with dismissal of an habitual offender enhancement;


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3002 | August 7, 2020   Page 9 of 11
       and (4) the option to file a motion for sentence modification in Cause Number

       F4-370, without objection by the State, after he serves seventy-five percent of

       his sentence.


[26]   By contrast, the State’s benefit from Riley’s guilty plea was minimal. By the

       time Riley entered into the plea agreement, Cause Number F4-370 was over a

       year and a half old, and the State had expended substantial resources litigating

       the matter, including preparing for trial. Riley’s guilty plea is not a substantial

       reason for sentence reduction.


[27]   Finally, Riley argues that his two sons will suffer undue hardship while he is

       incarcerated. “[J]ail is always a hardship on dependents.” Vazquez v. State, 839

       N.E.2d 1229, 1234 (Ind. Ct. App. 2005), trans. denied. “[A]bsent special

       circumstances,” a court is not required to find that imprisonment of a defendant

       will result in undue hardship to a dependent. Dowdell v. State, 720 N.E.2d 1146,

       1154 (Ind. 1999).


[28]   In Riley’s case, he has two minor children, for which he is obligated by court

       orders to pay child support. But he does not have custody of either child.

       Further, as the trial court noted while rejecting hardship to Riley’s children as a

       mitigating factor during sentencing, Riley has committed numerous other

       criminal offenses as an adult and has been either absent or incarcerated during

       the children’s lives. The trial court concluded, and we agree, that any hardship

       was imposed “on those kids years ago when [Riley] started down this path” of

       self-destruction. Tr. Vol. 2, p. 36. The hardship to Riley’s children is not a


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3002 | August 7, 2020   Page 10 of 11
       substantial basis for reducing his sentence. We conclude Riley that has failed to

       demonstrate that his sentence is inappropriate in light of the nature of the

       offense and his character.


                                                Conclusion
[29]   For the reasons stated above, we affirm the judgment of the trial court.


[30]   Affirmed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3002 | August 7, 2020   Page 11 of 11
