MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                           Sep 24 2015, 10:24 am
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
Donald E.C. Leicht                                      Gregory F. Zoeller
Kokomo, Indiana                                         Attorney General of Indiana

                                                        Justin F. Roebel
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Char’Dae Avery,                                         September 24, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        34A02-1504-CR-224
        v.                                              Appeal from the Howard Circuit
                                                        Court
State of Indiana,
                                                        The Honorable Lynn Murray
Appellee-Plaintiff.
                                                        Trial Court Cause No.
                                                        34C01-1402-FB-58



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1504-CR-224 | September 24, 2015   Page 1 of 9
                                       Statement of the Case
[1]   Char’Dae Avery appeals her sentence following her conviction for causing the

      death of another person while operating a vehicle with marijuana or its

      metabolite in her blood, as a Class B felony, pursuant to a guilty plea. Avery

      presents a single issue for our review, namely, whether the trial court abused its

      discretion when it sentenced her. We affirm.


                                 Facts and Procedural History
[2]   On February 15, 2014, at approximately 7:30 p.m., Avery, a diagnosed

      schizophrenic, ignored a stop sign and drove her vehicle through an intersection

      in Kokomo, striking a car driven by Matthew Foutch. Avery was traveling at

      seventy-five miles per hour in a forty-mile-per-hour zone, and, according to her

      vehicle’s data recorder, she did not attempt to brake until one second prior to

      the collision. Witnesses observed that Avery began dancing after exiting her

      vehicle, and one witness heard Avery yell, “I did it!” Appellant’s App. at 139.

      Avery did not appear to know that she had been in a collision, and she tried to

      leave the scene on foot despite one witness’s instruction to wait for police to

      arrive. That witness “took Avery to the ground and kept her at the scene until

      police arrived.” Id. at 160.


[3]   Kokomo Police Department Officer Dan Hunkeler arrived and observed that

      Avery’s speech was “slurred and abusive,” her eyes were red and watery, her

      balance was “very poor,” and her pants were wet. Id. at 160. After Avery

      refused to comply with Officer Hunkeler’s orders and tried to leave the scene,


      Court of Appeals of Indiana | Memorandum Decision 34A02-1504-CR-224 | September 24, 2015   Page 2 of 9
      Officer Hunkeler arrested her and placed her in handcuffs. Avery then refused

      to get into his patrol car and stated, “No, mother****er.” Id. Officer Hunkeler

      had to forcibly place Avery in the patrol car. Later, Officer Erik Fogg

      transported Avery to St. Joseph Hospital for a blood draw. When Officer Fogg

      told Avery that the driver of the other car was likely dead, Avery responded, “I

      don’t give a f***!” Id. at 158. Avery tested positive for marijuana, and she

      admitted to having smoked a “blunt” with friends before the collision. Foutch

      died of the injuries he sustained in the collision.


[4]   The State charged Avery with causing the death of another person while

      operating a vehicle with marijuana or its metabolite in her blood, as a Class B

      felony; failure to stop at an accident resulting in death, as a Class B felony;

      resisting law enforcement, as a Class A misdemeanor; possession of marijuana,

      as a Class A misdemeanor; and disorderly conduct, as a Class C misdemeanor.

      In August 2014, the State and Avery entered into a plea agreement, but the trial

      court rejected it. In March 2015, Avery filed a notice of intent to plead guilty to

      causing the death of another person while operating a vehicle with marijuana or

      its metabolite in her blood, as a Class B felony, and the State moved to dismiss

      the remaining charges without prejudice.1 At a hearing on April 1, the trial

      court accepted Avery’s guilty plea and sentenced her to twenty years, with

      eighteen years executed and two years suspended to probation. This appeal

      ensued.



      1
          There was no plea agreement.

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                                        Discussion and Decision
[5]   Avery contends that the trial court abused its discretion when it sentenced her. 2

      Sentencing decisions rest within the sound discretion of the trial court and are

      reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868

      N.E.2d 482, 490 (Ind. 2007), clarified on other grounds on reh’g, 875 N.E.2d 218

      (Ind. 2007). An abuse of discretion occurs if the 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.


               One way in which a trial court may abuse its discretion is failing
               to enter a sentencing statement at all. Other examples include
               entering a sentencing statement that explains reasons for
               imposing a sentence—including a finding of aggravating and
               mitigating factors if any—but the record does not support the
               reasons, or the sentencing statement omits reasons that are
               clearly supported by the record and advanced for consideration,
               or the reasons given are improper as a matter of law . . . .

               [However, b]ecause the trial court no longer has any obligation
               to “weigh” aggravating and mitigating factors against each other
               when imposing a sentence, . . . a trial court cannot now be said to
               have abused its discretion in failing to “properly weigh” such
               factors.


      Id. at 490-91. If a trial court abuses its discretion, “remand for resentencing

      may be the appropriate remedy if we cannot say with confidence that the trial



      2
        The State reads Avery’s brief to also contend that her sentence is inappropriate in light of the nature of the
      offense and her character. But, other than a single citation to Appellate Rule 7(B) in her brief, Avery does
      not make cogent argument in support of any such contention.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1504-CR-224 | September 24, 2015              Page 4 of 9
      court would have imposed the same sentence had it properly considered

      reasons that enjoy support in the record.” Id. at 491.


[6]   At sentencing, the trial court identified a single aggravator, the nature and

      circumstances of the crime, and three mitigators: Avery’s young age, lack of

      criminal history, and guilty plea. Generally, the “nature and circumstances” of

      a crime is a proper aggravating circumstance. McCann v. State, 749 N.E.2d

      1116, 1120 (Ind. 2001) (quoting Thacker v. State, 709 N.E.2d 3, 10 (Ind. 1999)).

      In explaining the aggravator at the sentencing hearing, the trial court stated in

      relevant part as follows:


              I think the particular nature and circumstances of these offenses,
              of this particular offense, is an aggravating factor and this is why
              [sic], I agree causing death is [an] element of the offense. Mr.
              Foutch’s death was an element and that’s what makes this a
              Class B felony and Ms. Avery being over the age of 21. But this,
              where the crime really occurred I guess is in these stages[:] that
              Ms. Avery chose, before getting on the road in Kokomo, Indiana,
              to share a one[-]gram blunt marijuana cigar, blunt, with one or
              two of her friends and become evidently extremely intoxicated
              through recreational marijuana use. And then she chose to get
              on the road and travel at a high rate of speed through a busy
              Kokomo intersection of a 4[-]way stop. Someone was bound to
              get hurt in this case. Most tragically, someone was killed.
              Through other facts and circumstances, some of which
              (inaudible) are reflected in the other charges that the State has
              dismissed, she first failed to stop. She had to be tackled by a
              pedestrian to stop. She resisted law enforcement. She actually
              had marijuana in the vehicle at the time and she was disorderly
              with the police. I view the nature and circumstances of this
              offense to present some aggravating factors. I don’t doubt the
              sincerity of her remorsefulness here as she’s been in jail for 410

      Court of Appeals of Indiana | Memorandum Decision 34A02-1504-CR-224 | September 24, 2015   Page 5 of 9
              days and facing the decision of this court or any court for this
              offense to which she committed. I consider that as well. As I’ve
              said, as a matter of record in this case is that she was evaluated
              by two mental health professionals, one of them being a
              psychiatrist and the other being a clinical psychologist. Both
              concluded that not only is she competent, she also could
              appreciate the wrongfulness of the events that day. Also
              described that her mental health, at least in some part, is due to
              heavy marijuana recreational use. That’s a conscious decision
              that she made. I do think my decision today as I know can no
              way be justice for the loss of Mr. Foutch’s life but that an
              aggravated sentence of 20 years incarceration is appropriate[,
              with two years suspended to probation].


      Tr. at 60-62. And in its written sentencing order, the trial court stated as

      follows:

              The Court considers and finds as aggravating circumstances the
              nature and circumstances of the offense. The defendant smoked
              a marijuana blunt with friends before operating a vehicle at a
              high rate of speed through a busy four-stop intersection, striking
              the victim’s vehicle causing his death. After the collision, the
              defendant did not stop, but attempted to flee the scene. She was
              disorderly with law enforcement, and marijuana was found in
              her vehicle.


      Appellant’s App. at 116.


[7]   Avery maintains that the trial court erred when it identified the nature and

      circumstances of the crime as an aggravating circumstance. In particular,

      Avery asserts that the trial court “committed error (an abuse of discretion) in

      sentencing Avery to an enhanced, maximum sentence, relying on aggravators

      which were merely elements of the offense or unproven/not stipulated to or by
      Court of Appeals of Indiana | Memorandum Decision 34A02-1504-CR-224 | September 24, 2015   Page 6 of 9
       elevating family considerations to the status of aggravator.” Appellant’s Br. at

       13. We address each contention in turn.


[8]    First, to the extent Avery contends that the trial court considered the victim’s

       death in support of its nature and circumstances aggravator, we disagree. The

       trial court expressly stated that the victim’s death was an element of the offense,

       and we do not read the sentencing statement as identifying the victim’s death as

       aggravating. Second, we do not read the trial court’s sentencing statement to

       have considered as aggravating the victim’s family’s statements.


[9]    Third, Avery asserts that she “never stipulated” to the following facts cited by

       the trial court: that she did not stop but attempted to flee the scene after the

       collision; that she was disorderly with the officers; and that marijuana was

       found in her vehicle. Appellant’s Br. at 11. Indeed, while the challenged facts

       are related to the other charges that were dismissed, they do not form a part of

       the factual basis for her plea to having caused Foutch’s death while operating a

       vehicle with marijuana or its metabolite in her blood. Avery’s stipulation was

       limited to the “probable cause affidavit, at least sufficient enough to establish a

       factual basis” for that offense, but she did not stipulate to the challenged facts,

       which may be relevant to the nature and circumstances of the crime but which

       are not relevant to proof of the underlying offense. Tr. at 9-10.


[10]   However, Avery’s stipulation was only relevant to the factual basis of her guilty

       plea. At sentencing, the trial court also properly considered the presentence

       investigation report, which included the probable cause affidavit, in its entirety.


       Court of Appeals of Indiana | Memorandum Decision 34A02-1504-CR-224 | September 24, 2015   Page 7 of 9
       Avery was given the opportunity, but she did not challenge the accuracy of the

       presentence investigation report, and information contained in the report is

       presumed accurate unless the defendant challenges it in some respect. Dillard v.

       State, 827 N.E.2d 570, 576 (Ind. Ct. App. 2005), trans. denied. Because each of

       the facts cited by the trial court in support of the nature and circumstances

       aggravator finds support in the presentence investigation report, the court did

       not err when it identified that aggravator.


[11]   Further, to the extent Avery contends that the trial court could not properly

       consider facts related to her dismissed charges at sentencing, she is mistaken.

       In Bethea v. State, 983 N.E.2d 1134, 1142 (Ind. 2013), our supreme court

       addressed the issue of “whether the trial court erred by treating the victim’s

       injury as an aggravating factor when the injury was an element of [a] burglary

       charge that was dismissed pursuant to his plea agreement.” In Bethea, the court

       stated in relevant part as follows:

               Our opinion today does not foreclose the possibility of the
               Defendant bargaining as to what can and cannot be potential
               aggravating and mitigating factors. It is well within the purview
               of contract law, and consequentially, as mentioned above, the
               law as it relates to plea bargains, for the Defendant to bargain
               and the State to accept a plea bargain that forecloses the
               possibility of the trial court using enhancements from the
               underlying charges that were dismissed, or from the original
               charges from which a lesser included plea is taken. However, if a
               plea bargain lacks such language, we hold it is not necessary for a trial
               court to turn a blind eye to the facts of the incident that brought the
               defendant before them. As we stated in Anglemyer v. State, “the
               nature and circumstances of the crime as well as the manner in

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               which the crime is committed” is a valid aggravating factor.
               Anglemyer v. State, 868 N.E.2d at 492.

               In this case, the court did not err by giving significant weight to the facts
               presented to it relating to the burglary and other dismissed charges.
               Although these facts share a relation with the elements of the
               dismissed Class A felony Burglary Resulting in Bodily Injury, the
               State’s obligations under the plea agreement were fulfilled upon
               dismissal of the seven remaining counts and it owed the
               Defendant no further duty to omit these facts from the
               aggravating circumstances consideration. Both the State and
               Defendant agreed to this plea bargain.


       (Emphases added). Here, there was no plea agreement and the parties did not

       otherwise agree to exclude the relevant evidence at sentencing. Thus, under

       Bethea, the facts underlying the dismissed charges as set out in the presentence

       investigation report were properly considered by the trial court in support of the

       nature and circumstances of the offense aggravator. See id.


[12]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




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