MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                  Mar 15 2016, 10:17 am
this Memorandum Decision shall not be
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
Mark S. Lenyo                                           Gregory F. Zoeller
South Bend, Indiana                                     Attorney General of Indiana
                                                        Paula J. Beller
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Darryl Dewitte Williams,                                March 15, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        71A05-1506-CR-782
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,
                                                        The Honorable Jane Woodward
Appellee-Plaintiff.                                     Miller, Judge
                                                        Trial Court Cause Nos.
                                                        71D01-1409-FC-136 and
                                                        71D01-1409-FC-137



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A05-1506-CR-782| March 15, 2016       Page 1 of 9
                                       Statement of the Case
[1]   Darryl Dewitte Williams appeals his conviction and sentence for operating a

      motor vehicle while privileges were forfeited for life, a Class C felony.

      Williams raises two issues for our review, which we restate as follows:

              1.      Whether the State presented sufficient evidence to support
                      Williams’ conviction.


              2.      Whether the trial court abused its discretion when it did
                      not identify Williams’ proffered mitigating factors as
                      significant when the court sentenced him.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On March 10, 2014, Indiana State Police Trooper Benjamin Werner initiated a

      traffic stop of a speeding vehicle in South Bend. Upon pulling the vehicle over,

      the driver, Williams, immediately exited the vehicle. Trooper Werner ordered

      Williams back into the vehicle, and Williams complied. Trooper Werner then

      approached Williams and asked him why he had exited the vehicle. Williams

      responded that “he had to go to the bathroom.” Tr. at 18. Trooper Werner

      processed Williams’ driving information and learned that Williams’ driving

      privileges had previously been suspended for life. When Trooper Werner

      approached Williams with this information, Williams stated that “he was

      driving because his wife[, Stephanie,] didn’t feel good.” Id. at 23-24. Trooper

      Werner, who is trained to determine whether someone is in medical distress,


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      observed Stephanie in the vehicle and observed that she “seemed fine.” Id. at

      24. And Stephanie did not bring herself to Trooper Werner’s attention during

      the traffic stop.


[4]   During the stop, Roseland Police Department Officer Tim Witham arrived to

      assist Trooper Werner. While Trooper Werner and Williams were talking,

      Officer Witham spoke to Stephanie. Officer Witham observed that Stephanie

      had demonstrated no medical distress “whatsoever,” and Stephanie did not

      inform Officer Witham of any medical issues. Id. at 30, 32.


[5]   On April 2, Williams again operated a motor vehicle while his privileges were

      suspended for life. When two officers initiated a traffic stop, Williams

      attempted to flee. And when those officers were arresting Williams, he forcibly

      resisted them.


[6]   Thereafter, the State filed two informations against Williams. Under Cause

      Number 71D01-1409-FC-136 (“FC-136”), the State alleged Williams operated a

      motor vehicle while privileges were suspended for life, a Class C felony, and

      twice resisted law enforcement, as Class A misdemeanors, for his conduct on

      April 2, 2014. Under Cause Number 71D01-1409-FC-137 (“FC-137”), the

      State alleged Williams operated a motor vehicle while privileges were

      suspended for life, a Class C felony, for his conduct on March 10, 2014.


[7]   Williams pleaded guilty as charged in Cause Number FC-136 and had a bench

      trial on the State’s charge against him in Cause Number FC-137. At trial,

      Williams and Stephanie testified that Stephanie had been driving the vehicle on

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      March 10, but she had an asthma attack while driving. In light of that medical

      condition, Williams took over operation of the vehicle. He had driven the

      vehicle for six or seven minutes before he was pulled over by Trooper Werner.

      At the conclusion of the bench trial, the court found Williams guilty as charged

      in FC-137.


[8]   The court then held a consolidated sentencing hearing. At that hearing,

      Williams asserted that the following were mitigating factors: he had been

      helping his elderly mother “around her house”; he had been helping his wife

      through asthma and surgery on a torn rotator cuff; he had been trying to live

      responsibly; and he had pleaded guilty to the offenses in FC-136. Id. at 103. In

      light of those mitigators, Williams requested his sentence be suspended to home

      detention. In response, the court stated:

              I can’t do what you’re asking, in terms of home detention. I can
              do community corrections, and you can work your way to home
              detention. But . . . at some point too much is too much. You
              have a terrible criminal history. . . . Of late, it’s been driving, but
              it has been . . . a war between you and the law. You do what you
              want to do, it seems like, and you have ten misdemeanors, five
              felonies. A lot of those have been driving in the recent years . . . .


      Id. at 105-06. The court then ordered Williams to serve an aggregate term of

      four years in the St. Joseph County Community Corrections Center on work

      release. This consolidated appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 71A05-1506-CR-782| March 15, 2016   Page 4 of 9
                                      Discussion and Decision
                          Issue One: Sufficiency of the Evidence in FC-137

[9]    Williams first asserts that his conviction in FC-137 must be reversed because he

       established an affirmative defense during his bench trial. Whether Williams

       established his affirmative defense “is . . . essentially a challenge to the

       sufficiency of the evidence.” Cain v. State, 844 N.E.2d 1063, 1066 (Ind. Ct.

       App. 2006).


               Our standard of review of such a challenge is well-settled. We
               consider the evidence most favorable to the [judgment], along
               with all reasonable inferences to be drawn therefrom, in order to
               determine whether a reasonable trier of fact could have found the
               defendant guilty beyond a reasonable doubt. We neither reweigh
               the evidence nor judge the credibility of the witnesses. If there is
               substantial evidence of probative value supporting each element
               of the crime, we will not disturb the conviction.


       Id. (internal citations omitted).


[10]   We first observe that Williams explicitly concedes that the State presented

       sufficient evidence to demonstrate that Williams committed the offense of

       operating a vehicle while privileges are suspended for life. Appellant’s Br. at

       12. Instead of challenging the State’s case, Williams asserts that he presented

       sufficient evidence to establish an affirmative defense. In particular, Williams

       relies on Indiana Code Section 9-30-10-18 (2012), which states: “In a criminal

       action brought under section . . . 17 . . . of this chapter, it is a defense that the




       Court of Appeals of Indiana | Memorandum Decision 71A05-1506-CR-782| March 15, 2016   Page 5 of 9
       operation of a motor vehicle . . . was necessary to save life or limb in an

       extreme emergency.”


[11]   Williams’ argument on appeal ignores our standard of review. Williams insists

       that this court credit his and Stephanie’s testimony regarding her alleged

       asthma attack and disregard the evidence most favorable to the trial court’s

       judgment. We will not do so. The trier of fact was free to not credit Williams

       or Stephanie in the first instance, and we will not reweigh their testimony on

       appeal. And, in any event, both Trooper Werner and Officer Witham testified

       that, at the time of the traffic stop, Stephanie did not appear to have any

       medical issues and did not inform them of any medical issues. Indeed,

       immediately after Trooper Werner had initiated the traffic stop, Williams stated

       that he had to go to the bathroom; Williams did not inform Trooper Werner of

       any emergency circumstances. We will not reweigh the evidence most

       favorable to the trial court’s rejection of Williams’ affirmative defense on

       appeal, and we affirm his conviction in Cause Number FC-137.


                                           Issue Two: Sentencing

[12]   Williams next asserts that the trial court abused its discretion when it did not

       identify his proffered mitigating circumstances as significant during sentencing.

       As our supreme court has made clear:


               sentencing decisions rest within the sound discretion of the trial
               court and are reviewed on appeal only for an abuse of
               discretion. . . . An abuse of discretion occurs if the decision is
               clearly against the logic and effect of the facts and circumstances


       Court of Appeals of Indiana | Memorandum Decision 71A05-1506-CR-782| March 15, 2016   Page 6 of 9
               before the court, or the reasonable, probable, and actual
               deductions to be drawn therefrom.


               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. Under
               those circumstances, remand for resentencing may be the
               appropriate remedy if we cannot say with confidence that the
               trial court would have imposed the same sentence had it properly
               considered reasons that enjoy support in the record.


       Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007) (“Anglemyer I”) (internal

       quotation marks and citations omitted), clarified on reh’g, 875 N.E.2d 218

       (“Anglemyer II”). “An allegation that the trial court failed to identify or find a

       mitigating factor requires the defendant to establish that the mitigating evidence

       is both significant and clearly supported by the record.” Id. at 493. “However,

       ‘If the trial court does not find the existence of a mitigating factor after it has

       been argued by counsel, the trial court is not obligated to explain why it has

       found that the factor does not exist.’” Id. (quoting Fugate v. State, 608 N.E.2d

       1370, 1374 (Ind. 1993)).


[13]   Williams’ arguments on appeal largely rehash the statements he made to the

       trial court. In particular, Williams again asserts that he helps his elderly mother

       and his wife and that he has been trying to live a responsible life. But Williams


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       does not support those statements by showing how the proffered mitigators,

       either alone or together, were significant and clearly supported by the record.

       See id. Accordingly, we reject those arguments on appeal.


[14]   We separately address Williams’ contention that the trial court abused its

       discretion when it failed to identify his guilty plea in Cause Number FC-136 as

       a mitigating circumstance. Our supreme court has held that “a defendant who

       pleads guilty deserves ‘some’ mitigating weight be given to the plea in return.”

       Anglemyer II, 875 N.E.2d at 220 (quoting McElroy v. State, 865 N.E.2d 584, 591

       (Ind. 2007). But this does not obviate the appellant’s burden to show that guilty

       plea was “significant.” Id. “For example, a guilty plea may not be significantly

       mitigating when it does not demonstrate the defendant’s acceptance of

       responsibility,” id., “or where the evidence against him is such that the decision

       to plead guilty is merely a pragmatic one,” Wells v. State, 836 N.E.2d 475, 479

       (Ind. Ct. App. 2005), trans. denied.


[15]   Here, Williams contends that he must be entitled to mitigating weight simply by

       virtue of having pleaded guilty in Cause Number FC-136. But the above

       authorities make clear that a guilty plea is not automatically a significant

       mitigating circumstance. And Williams makes no argument on appeal to show

       that his guilty plea was “significantly mitigating.” Anglemyer II, 875 N.E.2d at

       220. Accordingly, we affirm Williams’ sentence.


[16]   Affirmed.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1506-CR-782| March 15, 2016   Page 8 of 9
Riley, J., and May, J., concur.




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