MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Jul 31 2019, 10:50 am
court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Ernest P. Galos                                           Curtis T. Hill, Jr.
South Bend, Indiana                                       Attorney General of Indiana

                                                          Sierra A. Murray
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Philip Cazallis,                                          July 31, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-37
        v.                                                Appeal from the St. Joseph
                                                          Superior Court
State of Indiana,                                         The Honorable John M.
Appellee-Plaintiff                                        Marnocha, Judge
                                                          The Honorable Elizabeth A.
                                                          Hardtke, Magistrate
                                                          Trial Court Cause No.
                                                          71D02-1609-CM-4870



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-37 | July 31, 2019                       Page 1 of 8
[1]   Philip Cazallis appeals following his convictions of Class A misdemeanor

      operating a vehicle while intoxicated endangering a person (“OVWI”) 1 and

      Class B misdemeanor disorderly conduct. 2 He challenges the appropriateness

      of his sentence. We affirm.



                                   Facts and Procedural History
[2]   On September 8, 2016, Cazallis drove a moped while intoxicated. He lost

      control of the moped and flipped over near the intersection of Apple Road and

      Washington Street in St. Joseph County. Police officers responded to the

      scene. Cazallis could not remain upright, and the officers smelled alcohol on

      his breath. They administered field sobriety tests and measured Cazallis’ blood

      alcohol content. Cazallis failed all the field sobriety tests and registered a blood

      alcohol level of 0.17. The State charged Cazallis with OVWI.


[3]   On March 7, 2017, police officers responded to a report that Cazallis was on his

      front porch yelling and disturbing his neighbors. The officers could smell

      alcohol on his breath and noticed a bottle of whiskey sitting next to him. They

      told Cazallis to quiet down, and they left. However, the officers received a call

      that Cazallis was continuing to disturb his neighbors, so they returned to his




      1
          Ind. Code § 9-30-5-2.
      2
          Ind. Code § 35-45-1-3.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-37 | July 31, 2019   Page 2 of 8
      house and arrested him. Subsequently, the State charged Cazallis with

      disorderly conduct.


[4]   On November 9, 2018, Cazallis agreed to plead guilty to the OVWI charge and

      the disorderly conduct charge. In exchange, the State agreed to dismiss a

      different operating while intoxicated charge and a resisting law enforcement

      charge. The plea agreement left sentencing to the discretion of the trial court.


[5]   The trial court held a change of plea hearing on November 9, 2018, and a

      sentencing hearing on December 4, 2018. At the beginning of the sentencing

      hearing, Cazallis notified the court that, earlier that morning in another

      courtroom, he had received a six-month executed sentence for a separate

      conviction of Level 6 felony operating while intoxicated. The parties and trial

      court also reviewed the existing pre-sentence investigation report from that case

      for use in the misdemeanor cases.


[6]   The trial court sentenced Cazallis to ninety days in jail for disorderly conduct

      and to 365 days in jail for OVWI. The court also assessed a $200 drug and

      alcohol fee, and suspended Cazallis’ driver’s license for 365 days. The court

      ordered Cazallis to serve the OVWI sentence consecutive to his disorderly

      conduct sentence and to Cazallis’ sentence for Level 6 felony operating while

      intoxicated. Thus, Cazallis’ aggregate sentence on the OVWI charge and the

      disorderly conduct charge is 455 days.



                                 Discussion and Decision

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-37 | July 31, 2019   Page 3 of 8
[7]   We “may revise a sentence authorized by statute if, after due consideration of

      the trial court’s decision, [we find] the sentence is inappropriate in light of the

      nature of the offense and the character of the offender.” Ind. R. App. P. 7(B).

      Our role in reviewing a sentence pursuant to Appellate Rule 7(B) “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). “The defendant bears the burden of persuading

      this court that his or her sentence is inappropriate.” Kunberger v. State, 46

      N.E.3d 966, 972 (Ind. Ct. App. 2015). “Whether a sentence is inappropriate

      ultimately turns on the culpability of the defendant, the severity of the crime,

      the damage done to others, and a myriad of other factors that come to light in a

      given case.” Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014).


[8]   Preliminarily, we note Cazallis’ argument on appeal addresses the

      appropriateness of only his sentence for OVWI. (See Br. of Appellant at 9-12.)

      However, “appellate review should focus on the forest—the aggregate

      sentence—rather than the trees—consecutive or concurrent, number of counts,

      or length of the sentence on any individual count.” Cardwell, 895 N.E.2d at

      1225. Consequently, when a defendant pleads guilty via a single plea

      agreement to offenses charged under separate cause numbers, we review the

      defendant’s aggregate sentence under the plea agreement. Moyer v. State, 83

      N.E.3d 136, 140 (Ind. Ct. App. 2017) (Court declined defendant’s invitation to

      review his sentence with regards to only certain counts because to do so “would


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-37 | July 31, 2019   Page 4 of 8
       essentially amount to ignoring important aspects of the contract between the

       parties, such as the substantial benefit that he received in exchange for his guilty

       plea. The plea agreement represented a single transaction that ‘embodied the

       entire agreement between the parties.’”) (quoting Webb v. State, 941 N.E.2d

       1082, 1087-88 (Ind. Ct. App. 2011), trans. denied), trans. denied. Therefore, we

       evaluate whether Cazallis’ aggregate sentence for OVWI and disorderly

       conduct is inappropriate in light of the nature of his offenses and his character.


[9]    A Class A misdemeanor is punishable by up to one-year imprisonment and a

       fine of not more than $5,000. Ind. Code § 35-50-3-2. A Class B misdemeanor

       is punishable by up to 180 days imprisonment and a fine of not more than

       $1,000. Ind. Code § 35-50-3-3. Thus, both Cazallis’ sentence for OVWI and

       his sentence for disorderly conduct are within the statutory ranges.


[10]   Cazallis acknowledges he suffers from substance abuse issues. He is highly

       educated. He has earned two bachelor’s degrees, one in mechanical technology

       and the second in mechanical engineering. He held gainful employment until

       he became disabled due to bipolar disorder and depression. Cazallis testified he

       has sought mental health treatment through the years, and he admitted using

       alcohol and other substances to cope with his mental health issues. Cazallis

       also notes he was fifty-five years old at the time of sentencing and resided with

       his wife and two children. Further, the probation department categorized

       Cazallis as a low risk to reoffend. Cazallis also points out that his executed

       sentence for the Class A misdemeanor OVWI is longer than the executed

       sentence he received for Level 6 felony operating while intoxicated on the same

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-37 | July 31, 2019   Page 5 of 8
       day. He argues the “sentence imposed was only punitive in nature and [does]

       not serve to rehabilitate by failing to take into account the positive aspects of

       [Cazallis’] life.” (Appellant Br. at 11-12.)


[11]   Nevertheless, Cazallis’ OVWI offense endangered himself and others. He

       flipped his moped, drove with a blood alcohol content of over twice the legal

       limit, failed all the field sobriety tests, and had trouble standing up.

       Additionally, regarding Cazallis’ disorderly conduct conviction, the officers

       initially gave him a warning to quiet down. However, Cazallis ignored the

       warning and continued to disturb his neighbors. This behavior resulted in the

       officers returning to Cazallis’ house to arrest him.


[12]   Our Indiana Supreme Court has observed “the role of a defendant’s mental

       illness in the commission of a crime may, in exceptional and extraordinary

       circumstances, be considered in a Rule 7(B) appellate sentence review in

       evaluating the nature of the offense.” Helsley v. State, 43 N.E.3d 225, 229 (Ind.

       2015). However, while acknowledging Cazallis’ mental health and substance

       abuse issues, we do not find them so extraordinary as to diminish the gravity of

       Cazallis’ offenses. See Scott v. State, 840 N.E.2d 376, 383 (Ind. Ct. App. 2006)

       (holding defendant’s bipolar disorder was entitled to little weight as mitigating

       factor), trans. denied.


[13]   A defendant may demonstrate that his sentence is inappropriate given his

       character by putting forth evidence of “substantial virtuous traits or persistent

       examples of good character.” Stephenson v. State, 29 N.E.3d 111, 122 (Ind.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-37 | July 31, 2019   Page 6 of 8
       2015). On the other hand, a criminal history of similar offenses may justify a

       harsher sentence. See Ludack v. State, 967 N.E.2d 41, 49 (Ind. Ct. App. 2012)

       (holding defendant’s act of child molestation while on parole for rape warranted

       imposing consecutive sentences), trans. denied. Imprisonment has both deterrent

       and punitive effects. Moore v. Ferguson, 680 N.E.2d 862, 865 (Ind. Ct. App.

       1997), trans. denied. Cazallis has repeatedly committed alcohol related and low-

       level felony and misdemeanor offenses. This OVWI conviction was Cazallis’

       fourth conviction of operating a vehicle while intoxicated. In fact, he was

       sentenced for a Level 6 felony operating while intoxicated conviction earlier in

       the day. He also has a previous conviction of possession of marijuana and three

       convictions of criminal mischief. Even though Cazallis received treatment for

       his mental health issues in the past, he still committed the instant offenses.

       Consequently, we cannot say Cazallis’ sentence was inappropriate given the

       gravity of his offenses and his character. See Wheeler v. State, 95 N.E.3d 149,

       161 (Ind. Ct. App. 2018) (holding defendant’s sentence for operating a motor

       vehicle with an alcohol concentration equivalent to 0.15 and enhancing

       defendant’s sentence for being a habitual vehicular substance offender was not

       inappropriate given the nature of the offense and defendant’s character).



                                               Conclusion
[14]   We affirm because Cazallis’ sentence was not inappropriate given the nature of

       the offenses and his character.


       Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-37 | July 31, 2019   Page 7 of 8
Mathias, J., and Brown, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-37 | July 31, 2019   Page 8 of 8
