MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Aug 30 2018, 9:05 am
court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
J. Clayton Miller                                        Curtis T. Hill, Jr.
Jordan Law, LLC                                          Attorney General of Indiana
Richmond, Indiana
                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Vernon Thacker,                                          August 30, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-709
        v.                                               Appeal from the Wayne Superior
                                                         Court
State of Indiana,                                        The Honorable Darrin M.
Appellee-Plaintiff.                                      Dolehanty, Judge
                                                         Trial Court Cause No.
                                                         89D03-1411-F5-99



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-709 | August 30, 2018                 Page 1 of 7
                                          Statement of the Case

[1]   Vernon Thacker (“Thacker”) appeals his sentence imposed following his guilty

      plea to Level 5 felony operating a vehicle while privileges were forfeited for

      life.1 Thacker argues that his sentence is inappropriate in light of the nature of

      the offense and his character. Concluding Thacker’s sentence is not

      inappropriate, we affirm his sentence.


[2]   We affirm.


                                                     Issue

                                    Whether Thacker’s sentence is inappropriate.

                                                     Facts

[3]   On November 10, 2014, Thacker, whose driver’s license had been forfeited for

      life since 2004, drove a car in Wayne County, Indiana. After police stopped

      Thacker, they discovered that he was an habitual traffic violator and arrested

      him. The State charged Thacker with Level 5 felony operating a motor vehicle

      after lifetime suspension as an habitual traffic violator (“Wayne County

      offense”).


[4]   On January 5, 2015, Thacker failed to appear at a pretrial hearing. A bench

      warrant was issued for Thacker’s arrest. While the warrant was still pending



      1
          IND. CODE § 9-30-10-17.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-709 | August 30, 2018   Page 2 of 7
      execution, Thacker was arrested in Franklin County in February 2015. He was

      charged with and convicted of Level 5 felony operating a motor vehicle after

      lifetime suspension as an habitual traffic violator (“Franklin County offense”).

      He was sentenced to six (6) years in prison, with three (3) years suspended to

      probation.


[5]   In January 2018, after serving his sentence for his Franklin County offense,

      Thacker pled guilty to the Wayne County offense. A sentencing hearing was

      held in February 2018. The presentence investigation report (“PSI”) compiled

      by the probation department revealed that Thacker had an extensive history of

      driving-related convictions and one battery conviction in 1995. Regarding his

      driving history, Thacker had multiple convictions relating to: (1) driving while

      having a suspended license (e.g., driving while suspended five times from 2001

      to 2003); (2) driving as an habitual traffic violator (e.g., operating a vehicle as

      an habitual traffic violator in 2004); (3) driving after a lifetime suspension (e.g.,

      operating a vehicle after a lifetime suspension in 2007, 2012, and 2015).


[6]   When sentencing Thacker, the trial court discussed mitigating and aggravating

      circumstances as it imposed an enhanced sentence. The mitigating

      circumstances that the trial court considered included: (1) Thacker’s

      cooperation at the time of his arrest; (2) his work history; (3) family support; (4)

      the fact that no one was hurt as a direct result of this crime; (5) his lack of

      intoxication when arrested; (6) the reason for the driving was apparently done

      to help his ill mother get to a doctor’s office; and (7) his acceptance of guilt

      through his guilty plea. When reviewing the aggravating circumstances, the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-709 | August 30, 2018   Page 3 of 7
      trial court discussed Thacker’s criminal history and driving record, including

      most notably the fact that Thacker’s current conviction for operating a motor

      vehicle after lifetime suspension as an habitual violator was the fourth

      conviction for the same crime. The trial court also recounted the fact that

      Thacker failed to appear for a hearing in this case, then committed the same

      offense in a different county, and in so doing, violated his parole.


[7]   The trial court imposed a sentence of four (4) years and four (4) months and

      ordered it to be served at the Department of Correction. Thacker now appeals.


                                                  Decision

[8]   Thacker argues that his aggregate four (4) years and four (4) months sentence

      for his Level 5 felony operating a motor vehicle after lifetime suspension as an

      habitual traffic violator was inappropriate. Specifically, Thacker argues that the

      offense did not place any person or property at risk, and that he committed the

      offense to help his ailing mother. In reviewing Thanker’s sentence, this Court

      may revise a sentence if it is inappropriate in light of the nature of the offense

      and the character of the offender. Ind. Appellate Rule 7(B). “The 7(B)

      ‘appropriateness’ inquiry is a discretionary exercise of the appellate court’s

      judgment, not unlike the trial court’s discretionary sentencing determination.”

      Knapp v. State, 9 N.E.3d 1274, 1291-92 (Ind. 2014), cert. denied. “On appeal,

      though, we conduct that review with substantial deference and give due

      consideration to the trial court’s decision—since the principal role of our review

      is to attempt to leaven the outliers, and not to achieve a perceived correct

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-709 | August 30, 2018   Page 4 of 7
       sentence.” Id. at 1292 (internal quotation marks, internal bracket, and citations

       omitted). “Appellate Rule 7(B) analysis is not to determine whether another

       sentence is more appropriate but rather whether the sentence imposed is

       inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal

       quotation marks and citation omitted), reh’g denied. The defendant has the

       burden of persuading the appellate court that his sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[9]    “‘[R]egarding the nature of the offense, the advisory sentence is the starting

       point the Legislature has selected as an appropriate sentence for the crime

       committed.’” Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016) (quoting

       Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218 (Ind. 2007)). Here, Thacker pled guilty to Level 5 felony operating a

       vehicle while privileges were forfeited for life. The sentencing range for a Level

       5 felony is imprisonment “for a fixed term of between one (1) and six (6) years,

       with the advisory sentence being three (3) years.” I.C. § 35-50-2-6(b). The trial

       court sentenced Thacker to four (4) years and four (4) months of incarceration

       in the Department of Correction.


[10]   The nature of Thacker’s offense involved him driving after his driving privileges

       had been forfeited for life in 2004 and again in 2007. We note that Thacker

       tries to minimize the nature of his offense by arguing that he “engaged in an

       amoral action (operating a motor vehicle) with a virtuous intent (helping his

       ailing mother).” (Thacker’s Br. 7). While helping family members is laudable,

       Thacker does not have the option of driving. The nature of Thacker’s offense is

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-709 | August 30, 2018   Page 5 of 7
       made serious because it reveals a pattern of disregarding traffic laws, and that

       disregard has resulted in a determination that he must be kept from driving

       because his failure to follow traffic regulations potentially puts other drivers

       and/or pedestrians at risk. Demonstrating his disregard for Indiana’s traffic

       laws, Thacker admitted during his sentencing hearing that he intentionally

       volunteered to drive his mother to a doctor’s appointment while knowing that

       he did not possess a valid driver’s license. Additionally, this offense is more

       serious since it is his fourth conviction for the same offense.


[11]   When considering the character-of-the-offender prong of our inquiry, one

       relevant consideration is the defendant’s criminal history. Rutherford v. State,

       866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance of a defendant’s

       prior criminal history will vary “based on the gravity, nature and number of

       prior offense as they relate to the current offense.” Smith v. State, 889 N.E.2d

       261, 263 (Ind. 2008) (internal quotation marks and citation omitted).


[12]   Thacker has a lengthy history of criminal convictions for driving related

       behavior that spans nearly twenty years. His BMV record is abysmal and

       includes three indefinite suspensions as well as another habitual traffic violator

       suspension that is set to expire in 2022. As pointed out by the trial court during

       sentencing, “[t]he Defendant has shown an ongoing and consistent pattern of

       disregarding court-ordered restrictions on his behavior.” (App. Vol. 2 at 38).

       Thacker’s convictions for operating a vehicle when he was not legally permitted

       to do so consists of five misdemeanor convictions for driving while suspended,

       one felony conviction for operating as a habitual traffic violator, and the instant

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-709 | August 30, 2018   Page 6 of 7
       case makes four felony convictions for operating a vehicle after lifetime

       suspension.


[13]   Thacker has not persuaded us that the nature of the offense and his character

       make his sentence inappropriate. Therefore, we affirm the sentence imposed by

       the trial court.


[14]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-709 | August 30, 2018   Page 7 of 7
