MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    Feb 25 2016, 5:57 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael J. Kyle                                          Gregory F. Zoeller
Baldwin Kyle & Kamish                                    Attorney General of Indiana
Franklin, Indiana                                        Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Derrick Michael Means,                                   February 25, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         41A04-1502-CR-68
        v.                                               Appeal from the Johnson Circuit
                                                         Court
State of Indiana,                                        The Honorable K. Mark Loyd,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         41C01-1312-FC-113



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 41A04-1502-CR-68 | February 25, 2016           Page 1 of 9
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Derrick M. Means (Means), appeals his sentence after

      pleading guilty to two Counts of operating a motor vehicle while intoxicated

      causing serious bodily injury, Class C felonies, Ind. Code § 9-30-5-4(a)(3)

      (2013).


[2]   We affirm.


                                                    ISSUES

[3]   Means raises three issues on appeal, which we restate as follows:


      (1)     Whether Means waived his right to challenge his convictions on double

      jeopardy grounds following a guilty plea;


      (2)     Whether the trial court abused its discretion during sentencing by relying

      on the fact Means fled from the police; and


      (3)     Whether Means’ sentence was inappropriate in light of the nature of his

      offenses and his character.


                           FACTS AND PROCEDURAL HISTORY

[4]   On November 27, 2013, while fleeing from the police in Johnson County, a

      heavily intoxicated Means rammed his SUV into a vehicle occupied by two

      adults and their six-year-old son. The driver of the vehicle sustained a

      traumatic brain injury. He fractured his skull, part of which had to be removed

      due to brain swelling, and he remained in a coma for two to three weeks

      Court of Appeals of Indiana | Memorandum Decision 41A04-1502-CR-68 | February 25, 2016   Page 2 of 9
      following the accident. The front passenger suffered a double concussion, a

      fractured knee cap, multiple lacerations, and internal bleeding. The child, who

      was in the back seat, sustained only bumps and bruises; however, immediately

      after the crash, he experienced immense shock because he believed his parents

      were dead. At the time of the accident, Means was on probation for an

      unrelated conviction of public intoxication. He also had one prior 2009

      conviction for operating a motor vehicle while intoxicated in Indiana and one

      prior 2009 conviction for driving under influence in California.


[5]   On December 16, 2013, the State filed an Information charging Means with:

      Counts I and II, causing serious bodily injury when operating a motor vehicle

      while intoxicated with a previous conviction of operating a motor vehicle while

      intoxicated within the past five years, both Class C felonies; Counts III and IV,

      resisting law enforcement, both Class C felonies; and Count V, operating a

      motor vehicle while intoxicated with a previous conviction of operating a motor

      vehicle while intoxicated within the past five year, a Class D felony.


[6]   On November 13, 2014, Means pled guilty to Counts I and II in exchange for a

      maximum executed sentence cap of six years on each Count, merger of Count

      V with Counts I and II, and dismissal of Counts III and IV. On January 26,

      2015, the trial court held a sentencing hearing and, on January 28, 2015,

      sentenced Means to an aggregate term of sixteen years, with twelve years

      executed at the Department of Correction and four years suspended to

      probation.



      Court of Appeals of Indiana | Memorandum Decision 41A04-1502-CR-68 | February 25, 2016   Page 3 of 9
[7]   Means now appeals. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION

[8]   Means first argues that his convictions for operating a vehicle while intoxicated

      causing serious bodily injury violate Indiana’s double jeopardy laws. The State

      contends that Means waived his right to challenge his convictions on double

      jeopardy grounds because he entered into a plea agreement. We agree with the

      State. Our review of the record reveals that Means was represented by counsel,

      who discussed the plea agreement with Means several times and explained all

      pertinent consequences. He understood the terms and then freely and

      voluntarily signed the plea agreement. Moreover, Means received substantial

      benefits from the deal—dismissal of several charges and a cap on his executed

      sentence. As such, Means waived his right to challenge his convictions on

      double jeopardy grounds. See Mapp v. State, 770 N.E.2d 332, 334 (Ind. 2002).


[9]   Notwithstanding the waiver, Means fails to persuade us on the merits of his

      double jeopardy claim as well. Means pled guilty to two offenses under Indiana

      Code Section 9-30-5-4. The offenses at the time of the accident were defined as:


              (a) A person who causes serious bodily injury to another person
                  when operating a vehicle:

                       (1) with an alcohol concentration equivalent to at least
                           eight-hundredths (0.08) gram of alcohol per:

                               (A) one hundred (100) milliliters of the person’s
                                   blood; or
                               (B) two hundred ten (210) liters of the person’s
                                   breath;

      Court of Appeals of Indiana | Memorandum Decision 41A04-1502-CR-68 | February 25, 2016   Page 4 of 9
                        (2) with a controlled substance listed in schedule I or II of
                            [I.C. §] 35-48-2 or its metabolite in the person’s body;
                            or

                        (3) while intoxicated;

                   commits a Class D felony. However, the offense is a Class C
                   felony if the person has a previous conviction of operating
                   while intoxicated within the five (5) years preceding the
                   commission of the offense.

               (b) A person who violates subsection (a) commits a separate
                   offense for each person whose serious bodily injury is caused
                   by the violation of subsection (a).

       I.C. § 9-30-5-4.


[10]   The statute’s language is unambiguous. The offense is elevated from a Class D

       to a Class C felony, if the offender has a prior similar conviction. Further, the

       offender is charged for each victim separately.


[11]   Means acknowledges the statute’s specific requirement to charge separate

       offenses for each victim. Instead, he claims he was subject to double jeopardy

       because each of his convictions was elevated from a Class D to a Class C felony

       based on his 2009 conviction of operating a vehicle while intoxicated and one

       conviction “cannot be the basis of multiple enhancements . . . even when there

       are multiple victims.” (Appellant’s Br. p. 6).


[12]   However, at the time of the accident, Means had two prior convictions of

       operating a vehicle while intoxicated within the previous five years—one in




       Court of Appeals of Indiana | Memorandum Decision 41A04-1502-CR-68 | February 25, 2016   Page 5 of 9
       Indiana and one in California. 1 Therefore, Means’ argument is misplaced.

       Because there were two prior similar convictions, the elevation of both offenses

       from Class D felonies to Class C felonies does not raise double jeopardy

       concerns.


[13]   Means further contends that the trial court abused its discretion when, during

       sentencing, it relied on Means’ flight from the police because it was not

       supported by evidence. We disagree. Sentencing decisions are reviewed for an

       abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified

       on reh’g, 875 N.E.2d 218 (Ind. 2007). A trial court abuses its discretion in

       sentencing when it fails to issue an adequate sentencing statement, finds

       aggravating or mitigating factors not supported by the record, omits factors that

       are clearly supported by the record, or finds factors that are improper as a

       matter of law. Id. at 490-91. An abuse of discretion occurs when a 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. at 490.


[14]   Here, the trial court’s decision is adequately supported by the record and the

       video recording of the crash. Means admitted in open court that he was

       stopped by a police officer, fled the scene, and then, while being chased by the




       1
        Means admitted that he had a DUI in California at his sentencing hearing. A log showing an entry of
       conviction for DUI and hit and run on August 3, 2009 in California was admitted into evidence without
       objection as State’s Exhibit 6.

       Court of Appeals of Indiana | Memorandum Decision 41A04-1502-CR-68 | February 25, 2016         Page 6 of 9
       police, hit the vehicle occupied by adults and their child. As such, we hold that

       the trial court did not abuse its discretion under the circumstances.


[15]   Means finally claims that his aggregate executed sentence of twelve years is

       inappropriate in light of the offense and his character. It is long settled “that

       sentencing is principally a discretionary function in which the trial court’s

       judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d

       1219, 1222 (Ind. 2008). Despite the fact that the trial court imposed a sentence

       that is authorized by statute, our court may revise the sentence if, after due

       consideration of the trial court’s decision, we find that the sentence is

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

       offender. Appellate Rule 7(B).


[16]   With respect to Appellate Rule 7(B), “[t]he 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, 895

       N.E.2d at 1225. Ultimately, “whether we regard a sentence as appropriate at

       the end of the day turns on our sense of the culpability of the defendant, the

       severity of the crime, the damage done to others, and myriad other factors that

       come to light in a given case.” Id. at 1224. In making this determination, we

       focus on the length of the aggregate sentence and the manner in which it is to be

       served. Id. The defendant bears the burden of proving that his sentence is

       inappropriate. Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007).



       Court of Appeals of Indiana | Memorandum Decision 41A04-1502-CR-68 | February 25, 2016   Page 7 of 9
[17]   As to the nature of the offenses, we note that Means drove his SUV with a

       blood alcohol content of 0.24. Means was stopped by the police, but fled. He

       was so intoxicated that he lacks any recollection of crashing into another

       vehicle and causing severe injuries to the victims. The harm that Means caused

       is incalculable; it completely changed the course of the victims’ lives. The

       driver’s injuries were so severe that his heart stopped twice. His doctors

       believed he was going to die and had begun preparing his family for his death.

       The driver lost all sight in his right eye. He had to have part of his skull

       removed because of swelling in his brain and now has a plate and screws

       holding his skull together. The passenger endured a double concussion, a

       fractured knee, internal bleeding, and lacerations. She floated in and out of

       consciousness for seventy-two hours following the accident and remained in the

       hospital for approximately a week. Furthermore, their six-year-old son not only

       experienced the accident, but witnessed his parents in such a severe condition

       that he believed them to be dead, and as a result, undergoes counseling

       approximately twice a month. Means’ bad judgment on the evening of the

       crash caused devastating and lasting consequences to this family on many

       levels: physically, emotionally, and financially.


[18]   Turning to Means’ character, we note that Means had multiple prior

       convictions for operating a vehicle while intoxicated, public intoxication, and

       resisting law enforcement, as well as probation violations. This certainly

       demonstrates Means’ disregard for the law and willingness to risk his own

       safety and the safety of others to avoid the consequences of his own decisions.


       Court of Appeals of Indiana | Memorandum Decision 41A04-1502-CR-68 | February 25, 2016   Page 8 of 9
       He was provided with opportunities for treatment and rehabilitation, but failed

       to take advantage of them. Means was well aware of his severe drinking

       problem and yet he continued driving his vehicle; he was uninsured at the time

       of the accident and for more than a year before that. Means’ unchanged

       behavior and the serious nature of the present offenses justify the trial court’s

       sentencing decision. As such, we conclude that the trial court’s sentence was

       not inappropriate.


                                               CONCLUSION

[19]   Based on the foregoing, we hold that Means waived his right to appeal his

       convictions on double jeopardy grounds, the trial court did not abuse its

       discretion during sentencing by relying on the fact Means fled from the police,

       and his sentence was not inappropriate.


[20]   Affirmed.


[21]   Najam, J. and May, J. concur




       Court of Appeals of Indiana | Memorandum Decision 41A04-1502-CR-68 | February 25, 2016   Page 9 of 9
