MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                              Aug 14 2018, 9:13 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ronald J. Moore                                          Curtis T. Hill, Jr.
The Moore Law Firm, LLC                                  Attorney General of Indiana
Richmond, Indiana
                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dante Faulkner,                                          August 14, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-415
        v.                                               Appeal from the
                                                         Wayne Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Darrin M. Dolehanty, Judge
                                                         Trial Court Cause No.
                                                         89D03-1706-F5-71



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-415 | August 14, 2018                 Page 1 of 10
[1]   Dante Faulkner (“Faulkner”) pleaded guilty to operating a motor vehicle after a

      lifetime forfeiture of driving privileges,1 a Level 5 felony, resisting law

      enforcement2 as a Class A misdemeanor, false informing3 as a Class B

      misdemeanor, and possession of paraphernalia 4 as a Class C misdemeanor, and

      he was sentenced to an aggregate executed sentence of fifty months to be served

      in the Indiana Department of Correction. Faulkner appeals his sentence,

      raising the following issue for review: whether his sentence is inappropriate in

      light of the nature of the offense and the character of the offender.


[2]   We affirm.


                                         Facts and Procedural History
[3]   On May 17, 2017, Patrolman Ryan Riggs of the Wayne County Sheriff’s

      Department (“Officer Riggs”) was traveling northbound on Salisbury Road in

      Richmond, Wayne County, Indiana when he observed a car, driven by a person

      later identified as Faulkner, traveling southbound at forty-five miles per hour in

      a thirty miles-per-hour zone. Officer Riggs turned his police vehicle around and

      initiated a traffic stop of Faulkner’s vehicle. Officer Riggs approached the

      vehicle and asked Faulkner for his name and date of birth. Faulkner told




      1
          See Ind. Code § 9-30-10-17.
      2
          See Ind. Code § 35-44.1-3-1(a).
      3
          See Ind. Code § 35-44.1-2-3(d).
      4
          See Ind. Code § 35-48-4-8.3.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-415 | August 14, 2018   Page 2 of 10
      Officer Riggs that his name was La’Ray Faulkner and that his date of birth was

      April 1, 1981. Tr. Vol. II at 30, 33. Officer Riggs became suspicious after he

      noticed that Faulkner had difficulty remembering how to spell his name and

      remembering his date of birth. Appellant’s App. Vol. II at 13.


[4]   Officer Riggs then returned to his squad car to conduct a BMV inquiry using

      the identification information that Faulkner provided. However, after Officer

      Riggs stepped away, Faulkner exited his own vehicle and ran from the scene on

      foot. Officer Riggs ordered Faulkner to stop, but Faulkner continued to flee.

      Officer Riggs began to pursue Faulkner on foot; however, he eventually lost

      sight of Faulkner and was unable to locate him.


[5]   Officer Riggs later discovered that Faulkner had provided incorrect identifying

      information to him. Id. at 14. La’Ray Faulkner, born April 1, 1981, was

      actually a female who, at the time of the stop, was married to Dante Faulkner.

      Id. After reviewing a booking photograph taken of Faulkner from a prior arrest,

      Officer Riggs confirmed that Faulkner was actually the driver of the vehicle that

      he had stopped earlier that day. When Officer Riggs had positively identified

      Faulkner, he ran a subsequent BMV inquiry, which revealed that Faulkner was

      a habitual traffic violator and that his license was subject to a lifetime

      suspension. Id.; Tr. Vol. II at 31.


[6]   Per department policy, Officer Riggs conducted an inventory search of

      Faulkner’s car. During the search, he found a glass pipe with burn marks that

      also contained a white residue. Tr. Vol. II at 31-32. Faulkner later admitted


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-415 | August 14, 2018   Page 3 of 10
      that he intended to use the pipe to introduce illegal substances into his body. Id.

      at 32. Faulkner regularly smokes marijuana, and he had begun using

      methamphetamine just a few months prior to the May 17 incident. Id. at 32,

      52.


[7]   The State charged Faulkner with one count of Level 5 felony operating a motor

      vehicle after lifetime forfeiture of driving privileges, one count of Class A

      misdemeanor resisting law enforcement, one count of Class B misdemeanor

      false informing, and one count of Class C misdemeanor possession of

      paraphernalia. On June 15, 2017, a warrant was issued for Faulkner’s arrest.

      After Faulkner was arrested, he filed with the trial court a notice of alibi defense

      on August 8, 2017, which stated that “on the date and time of the alleged

      offense as charged, the Defendant was at his girlfriend’s house on Ridge Street

      in Richmond, IN.” Appellant’s App. Vol. II at 21. A second warrant was issued

      for Faulkner’s arrest after he failed to appear for a pre-trial conference on

      October 23, 2017. Faulkner eventually pleaded guilty as charged on December

      18, 2017.


[8]   During the course of the pre-sentence investigation, it was discovered that

      Faulkner had fourteen prior misdemeanor convictions and one prior felony

      conviction. These included numerous driving-related convictions, including:

      Class A misdemeanor operating while intoxicated; Class A misdemeanor

      operating while intoxicated endangering a person; Class B misdemeanor

      reckless driving; Class A misdemeanor operating a vehicle as a habitual traffic

      offender; Class D felony operating a vehicle as a habitual traffic violator, and

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-415 | August 14, 2018   Page 4 of 10
      Class C misdemeanor operating a vehicle with a schedule I or II controlled

      substance in a person’s body. Id. at 43-44. Faulkner had his driver’s license

      suspended at least seventeen times between February 18, 2000, and November

      8, 2015. Id. at 57-58. At the time of his sentencing, Faulkner had three active

      suspensions against his license, which included suspensions for his habitual

      traffic violator status, for failure to appear for a driver safety program, and for

      failure to comply with an out-of-state violation from Ohio. Id.


[9]   A sentencing hearing was held on January 19, 2018. Faulkner testified that he

      fled from the scene because he “was afraid of consequences” of his decision to

      drive with a suspended license and stated that he “was under a lot of stress at

      the time, as far as me and my wife’s relationship went sour, and I just made

      some bad decisions which ultimately led to me driving when I knew I wasn’t

      supposed to be driving.” Tr. Vol. II at 44. Faulkner admitted to regularly using

      marijuana and methamphetamine, but that he was “not ashamed” of his drug

      use. Id. at 52. The trial court sentenced Faulkner to fifty months for Count I

      and to sixty days for each of the remaining counts. The trial court noted that

      Faulkner had taken responsibility for his actions by pleading guilty and ordered

      his sentences to be served concurrently. Id. at 69. Faulkner now appeals his

      fifty-month sentence.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-415 | August 14, 2018   Page 5 of 10
                                          Discussion and Decision
[10]   Faulkner contends5 that his fifty-month executed sentence for his Level 5 felony

       operating a motor vehicle after lifetime forfeiture of driving privileges

       conviction6 is inappropriate. Pursuant to Indiana Appellate Rule 7(B), this

       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.” Our

       Supreme Court has explained that the principal role of appellate review should

       be to attempt to leaven the outliers, “not to achieve a perceived ‘correct’ result

       in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We

       independently examine the nature of Faulkner’s offense and his character under

       Appellate Rule 7(B) with substantial deference to the trial court’s sentence.

       Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015). “In conducting our review,

       we do not look to see whether the defendant’s sentence is appropriate or if

       another sentence might be more appropriate; rather, the test is whether the

       sentence is ‘inappropriate.’” Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App.

       2013), trans. denied. Faulkner bears the burden of persuading us that his

       sentence is inappropriate. Id.




       5
         Initially, the State asserts that Faulkner’s notice of appeal was not timely and that his right to appeal has
       been forfeited. Assuming without deciding that Faulkner’s appeal was timely filed, we conclude that his
       sentence is not inappropriate.
       6
         Faulkner acknowledges that this is a general appeal of the sentence, but is only asking for a review of the
       sentence on Count I. The remaining sentences, being concurrent and substantially shorter, are not in
       question.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-415 | August 14, 2018                        Page 6 of 10
[11]   When determining whether a sentence is inappropriate, the advisory sentence is

       the starting point the legislature has selected as an appropriate sentence for the

       crime committed. Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015);

       Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014). Faulkner was

       convicted of a Level 5 felony, and the advisory sentence for a Level 5 felony

       conviction is three years, with a range of between one and six years. Ind. Code

       § 35-50-2-6(b). Faulkner received a sentence of fifty months, which is

       equivalent to four years and two months.


[12]   As this court has recognized, “The nature of the offense is found in the details

       and circumstances of the commission of the offense and the defendant’s

       participation.” Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). On

       appeal, Faulkner contends that his sentence is not appropriate as to the nature

       of his offense because his offense was not evil by nature and there was no

       damage to property or persons due to his offense. He asserts that the sentence

       imposed by the trial court is not commensurate with the nature of his offense.


[13]   The nature of Faulkner’s offense shows that he was observed operating a

       vehicle when his driver’s license had been forfeited for life. After a traffic stop

       was initiated, Faulkner gave the officer a false name and birthdate, which

       showed that he knew his actions of driving the vehicle were wrong. When the

       officer went back to his police vehicle to run a computer check on the

       information given to him by Faulkner, Faulkner fled the scene on foot and

       failed to stop even after the officer ordered him to do so. These actions further

       demonstrate Faulkner’s attempts to avoid apprehension. After fleeing the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-415 | August 14, 2018   Page 7 of 10
       police, Faulkner successfully evaded the police for almost a month. Faulkner

       attempted to mislead the trial court after he had been arrested by filing a notice

       of alibi defense stating that he was with his girlfriend at the time of the offense,

       a statement that he knew to be false. We conclude that the nature of the offense

       does not warrant a reduction in Faulkner’s imposed sentence.


[14]   “The character of the offender is found in what we learn of the offender’s life

       and conduct.” Croy, 953 N.E.2d at 664. When considering the character of the

       offender, one relevant fact is the defendant’s criminal history. Johnson v. State,

       986 N.E.2d 852, 857 (Ind. Ct. App. 2013). Although he has a lengthy criminal

       history, Faulkner contends that his criminal history is outweighed by his

       acceptance of responsibility and the fact that he is employable and willing to

       work to further his education. He claims that “[h]is current character is not

       reflective of the lengthy misdemeanor record he has amassed” and that “[h]is

       single prior felony conviction would suggest an independent review and a

       downward departure from the sentence imposed.” Appellant’s Br. at 17.


[15]   Regarding Faulkner’s character, he has a lengthy criminal history consisting of

       fourteen prior misdemeanor convictions and one prior felony conviction.

       Appellant’s App. Vol. II at 42-44. Faulkner has had six convictions for driving-

       related offenses since 2000, including his felony conviction for operating a

       vehicle as a habitual traffic violator in 2011, which resulted in a lifetime

       suspension of his driver’s license. Because the present offense involved a

       driving-related offense and his criminal history contains numerous offenses

       involving driving, we also look to Faulkner’s driving record, which shows that

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-415 | August 14, 2018   Page 8 of 10
       his driver’s license has been suspended seventeen times since the year 2000. Id.

       at 57-58. At the time of his sentencing, three of the suspensions were still active

       with an “indefinite” expiration date. Id. Faulkner’s criminal and driving

       records show that past punishments, including a lifetime suspension of his

       license, have not been deterred him from committing driving-related offenses.

       Additionally, when Faulkner’s vehicle was inventoried after he fled the scene of

       the traffic stop during the present offense, a glass pipe was discovered that

       tested positive for methamphetamine. Faulkner admitted that he used

       marijuana regularly and has recently begun using methamphetamine in order to

       help him stay awake during his night shifts. Tr. Vol. II at 52. Further, although

       Faulkner was employed and was also enrolled in school at the time of the

       current offenses, he used his employment as a justification to commit driving-

       related offenses by blaming his driving on the fact that he had to drive to work

       even though he neglected to pursue legal avenues to restore his driving

       privileges. Id. at 45, 68. We do not believe that Faulkner’s character warrants a

       revision of his sentence.


[16]   Our task on appeal is not to determine whether another sentence might be more

       appropriate; rather, the inquiry is whether the imposed sentence is

       inappropriate. Barker, 994 N.E.2d at 315. Faulkner has failed to carry his

       burden of establishing that his sentence is inappropriate in light of the nature of

       the offense and his character.


[17]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-415 | August 14, 2018   Page 9 of 10
Vaidik, C.J., and Riley, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-415 | August 14, 2018   Page 10 of 10
