MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            Nov 18 2016, 7:06 am
regarded as precedent or cited before any
                                                                      CLERK
court except for the purpose of establishing                      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
Jon A. Keyes                                            Gregory F. Zoeller
Allen Wellman McNew Harvey, LLP                         Attorney General
Greenfield, Indiana
                                                        Matthew B. MacKenzie
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Timothy J. Hughes,                                      November 18, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        30A01-1604-CR-956
        v.                                              Appeal from the Hancock Circuit
                                                        Court
State of Indiana,                                       The Hon. Richard Culver, Judge
Appellee-Plaintiff.                                     Trial Court Cause No.
                                                        30C01-1508-F5-1249



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 30A01-1604-CR-956 | November 18, 2016   Page 1 of 9
                                          Case Summary
[1]   On August 11, 2015, Appellant-Defendant Timothy J. Hughes operated a

      vehicle while intoxicated. His vehicle struck two bicyclists, Carla McCloud and

      Amanda Wheeler. McCloud later died of her injuries sustained in the crash.

      Wheeler survived, but sustained a fractured skull and other injuries. On August

      13, 2015, the State of Indiana (“the State”) filed a delinquency petition alleging

      that Hughes had committed numerous offenses relating to his operation of the

      vehicle in question. On August 19, 2015, the State filed a motion for waiver of

      juvenile jurisdiction, and on the same day the court granted that waiver. Later

      that day, Hughes was formally charged as an adult for those same offenses in

      addition to two other charges.


[2]   On February 9, 2016, Hughes pled guilty to all counts without the benefit of a

      plea agreement. The trial court accepted Hughes’s guilty plea and sentenced

      him to an aggregate nine-and-a-half-year executed sentence. On March 9,

      2016, Hughes filed a motion to correct error, which the trial court denied on

      April 11, 2016. On appeal, Hughes contends that his sentence is inappropriate

      in light of the nature of his offenses and his character. Concluding that

      Hughes’s sentence is not inappropriate, we affirm.



                            Facts and Procedural History
[3]   In March of 2015, Hughes entered into an informal adjustment for a

      delinquency alcohol violation. During that adjustment, Hughes participated in


      Court of Appeals of Indiana | Memorandum Decision 30A01-1604-CR-956 | November 18, 2016   Page 2 of 9
      a dual diagnosis program that was designed to address his mental health and

      substance-abuse issues. Less than a month after Hughes was released from

      supervision in that case, he quit working with his sponsor, quit attending

      meetings, and began to use alcohol multiple times a week, often to the point of

      passing out.


[4]   On August 11, 2015, Hughes consumed a significant amount of alcohol and

      became highly intoxicated. Hughes then made the decision to drive home on

      the “back roads” in order to avoid contact with law enforcement. At

      approximately 9:05 p.m., Hughes’s vehicle struck two bicyclists, McCloud and

      Wheeler. Hughes was so intoxicated at the time that he initially thought that

      he had hit a deer. It was not until Hughes saw McCloud lying in the ditch that

      he realized that he had hit a person. Hughes did not, however, see that he had

      hit Wheeler as well. Hughes remained at the scene of the crash and waited for

      law enforcement to arrive.


[5]   Officers responding to the scene of the crash observed Hughes showing clear

      signs of impairment and subsequently conducted several field sobriety tests.

      Hughes failed every test he was offered. Inside Hughes’s vehicle, the officers

      also found: a partially full 1.75L bottle of Gran Legacy Vodka, a partially full

      water bottle of clear liquid that smelled of alcohol, and one OxyContin pill that

      had been broken.


[6]   Hughes was read Indiana’s implied consent by the officers and voluntarily

      agreed to take a chemical test at Hancock Regional Hospital. The results of the


      Court of Appeals of Indiana | Memorandum Decision 30A01-1604-CR-956 | November 18, 2016   Page 3 of 9
      blood alcohol content test were 0.28 grams of alcohol per 100 milliliters of

      blood (“BAC”). Hughes was eight days shy of his eighteenth birthday at the

      time.


[7]   McCloud was transported to the hospital via air ambulance due to the severity

      of her injuries where she died several days later. Wheeler sustained a fractured

      skull and numerous other injuries. As a result of those injuries, Wheeler had to

      delay entry into graduate school; lost her sense of smell; has great difficult

      reading and remembering information, suffers from daily migraines, has pain

      throughout her left side; and suffers from depression, post-traumatic stress

      disorder, and survivor’s guilt necessitating the intervention of a therapist.


[8]   After initially being charged in juvenile court then waived to adult court on

      August 19, 2015, the State charged Hughes with the following offenses: (1)

      Level 5 felony operating while intoxicated (“OWI”); (2) Level 6 felony

      operating a vehicle with a BAC above 0.08; (3) Level 6 felony OWI; (4) Level 6

      felony operating a vehicle with a BAC above .08; (5) Level 5 felony reckless

      homicide; (6) Level 6 felony illegal possession of a narcotic drug; and (7) Class

      C misdemeanor possession of alcohol as a minor.


[9]   At the initial hearing on August 19, 2015, the trial court set a cash bond in the

      amount of $20,000, subject to the conditions of GPS monitoring, SCRAM,1 a




      1
       SCRAM is a wireless alcohol monitoring system. The technology can either be used like a handheld
      breathalyzer or attached to the ankle like a GPS monitoring device. Alcohol Monitoring, SCRAM SYSTEMS,

      Court of Appeals of Indiana | Memorandum Decision 30A01-1604-CR-956 | November 18, 2016       Page 4 of 9
       drug and alcohol evaluation, that Hughes remain drug- and alcohol-free and

       that he submit to random drug screens. On August 31, 2015, after Hughes was

       released on bond, Hughes entered treatment at St. Vincent’s Stress Center. He

       was referred to dual diagnosis treatment for a second time. On October 1,

       2015, Hughes successfully completed the program.


[10]   On October 23, 2015, community corrections reported to the trial court that

       Hughes had confessed to a field officer during a daily home visit and urine

       screen that he had inhaled the contents of a twelve-ounce can of Ultra Duster

       on the night of October 21, 2015 to help him sleep. In response to Hughes’s

       actions, the trial court revoked his bond on November 4, 2015.


[11]   On February 9, 2016, Hughes pled guilty to all charges without the benefit of a

       plea agreement. During the sentencing hearing, the trial court found that

       Hughes’s guilty plea was a mitigating circumstance, but did not give it a “great

       amount of weight” because there was “overwhelming evidence” against

       Hughes and his plea was “not entirely based upon any heartfelt remorse.” Tr.

       p. 197. The trial court further concluded that the following aggravating

       circumstances outweighed the mitigators: (1) Wheeler had a loss that was

       “greater than what was necessary to prove the elements of serious bodily

       injury[;]” (2) Hughes had a prior juvenile case; (3) “previous attempts at

       rehabilitating [Hughes], [his family’s] efforts, . . . the probation department’s




       https://www.scramsystems.com/products/scram-continuous-alcohol-monitoring/ (last visited November 7,
       2016).

       Court of Appeals of Indiana | Memorandum Decision 30A01-1604-CR-956 | November 18, 2016   Page 5 of 9
       efforts, . . . and the Court’s efforts have failed[;]” (4) additional steps to control

       Hughes’s destructive behavior, including the use of community corrections,

       “have not been sufficient and have failed to protect society[,]” and the court

       feared that Hughes could not be “safely rehabilitate[d] . . . outside the walls of a

       facility[;]” (5) before and after the crash, Hughes was “very selfish and without

       remorse as evidenced by the fact that [he was] huffing and being dishonest with

       [his] grandmother after [the court] gave [him] a chance at freedom and

       rehabilitation[;]” and (6) Hughes was engaged in “old fashion criminal

       thinking” and his desire to protect the names of his friends. Tr. pp. 197-02.

       After considering the mitigating and aggravating factors, the trial court

       concluded that the “only appropriate penalty [was] the maximum sentence

       allowed by law.” Tr. p. 202. After the presentation of evidence and argument

       by the parties, Hughes was sentenced to nine-and-a-half years of incarceration

       by the trial court.



                                 Discussion and Decision
[12]   The sole issue for our review is whether Hughes’s maximum sentence allowed

       by law is appropriate in light of the nature of his offenses and character. Under

       Indiana Appellate Rule 7(B), “[t]he Court may revise a sentence 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.” When reviewing such claims, we “concentrate less

       on comparing the facts of the [case at issue] to others, whether real or


       Court of Appeals of Indiana | Memorandum Decision 30A01-1604-CR-956 | November 18, 2016   Page 6 of 9
       hypothetical, and more on focusing on the nature, extent, and depravity of the

       offense for which the defendant is being sentence, and what it reveals about the

       defendant’s character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008)

       (internal quotes and citations omitted). Hughes, as the defendant, bears the

       burden of persuading us that his sentence is inappropriate. Sanchez v. State, 891

       N.E.2d 174, 176 (Ind. Ct. App. 2008).


[13]   With respect to the nature of the offense, the trial court found that Wheeler

       suffered a loss that was “greater than what was necessary to prove the elements

       of serious bodily injury.” Tr. p.198. As it relates to McCloud, the court found

       that she already “suffered the ultimate penalty” and it is impossible to say that

       her death is any less bad than another death caused by a drunk driver. Tr. p.

       198. Hughes chose to get behind the wheel of his vehicle on August 11, 2015,

       after having consumed a large amount of alcohol. He also admitted that he

       initially thought he had hit a deer. The record shows that after Hughes exited

       the vehicle, he only saw McCloud lying in the ditch and was unaware that he

       had also struck Wheeler. Furthermore, the evidence shows that following the

       crash, Hughes’s BAC was 0.28, over three times the legal limit. Wheeler lost

       her best friend and cousin McCloud on the day of the accident. The evidence

       also shows that Wheeler has and continues to suffer from lingering physical,

       emotional, and cognitive deficits as a result of the crash. We do not agree with

       Hughes’s argument that in light of the nature of his offense, his sentence is

       inappropriate.




       Court of Appeals of Indiana | Memorandum Decision 30A01-1604-CR-956 | November 18, 2016   Page 7 of 9
[14]   Hughes also argues that that his youth, remorse, guilty plea, and the fact that he

       sought mental-health and substance-abuse treatment after the crash should

       weigh in his favor. The record reveals that the trial court considered Hughes’s

       guilty plea but found that his “guilty plea was in part a result of the

       overwhelming evidence against [him] and not entirely based upon any heartfelt

       remorse.” Tr. p. 197. Moreover, the trial court found that despite previous

       attempts to rehabilitate him, Hughes continued to engage in self-destructive

       behavior and went so far as to lie to his grandmother in order to get high just

       days after being released from treatment and weeks after the crash.


[15]   Finally, the fact that Hughes was several days shy of his eighteenth birthday at

       the time of the offense does not mean the trial court erred when it treated

       Hughes the same as an adult for sentencing purposes. While the youth of a

       defender is a factor a sentencing court may consider, age is not automatically a

       significant mitigating factor. Gross v. State, 769 N.E.2d 1136, 1141 n.4 (Ind.

       2002). We are unconvinced that Hughes’s character is sufficient to render his

       sentence inappropriate.


[16]   Hughes also points to his lack of criminal history as an indication that his

       sentence is inappropriate. While it appears that, other than the informal

       adjustment for a delinquency alcohol violation, Hughes has not previously been

       arrested or convicted of any prior criminal or delinquent acts, we believe that

       his lack of criminal and delinquent history is offset by the seriousness of the

       present offenses. Hughes has failed to establish that his nine-and-a-half-year



       Court of Appeals of Indiana | Memorandum Decision 30A01-1604-CR-956 | November 18, 2016   Page 8 of 9
       executed sentence is inappropriate in light of both his character and the nature

       of his offenses.


[17]   We affirm the trial court’s judgment.


       Pyle, J., and Altice, J., concur.




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