MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          May 26 2020, 10:41 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                                   ATTORNEY FOR APPELLEE
Leanna Weissmann                                         Tiffany A. McCoy
Lawrenceburg, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Joseph Bradford Reed,                                    May 26, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-68
        v.                                               Appeal from the Ripley Circuit
                                                         Court
State of Indiana,                                        The Honorable Ryan J. King,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         69C01-1805-F5-21



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-68 | May 26, 2020                  Page 1 of 7
[1]   Joseph Bradford Reed appeals his sentence for operating a vehicle as an

      habitual traffic violator suspended for life as a level 5 felony. We affirm.


                                      Facts and Procedural History

[2]   On April 8, 2018, Reed operated a motor vehicle on a public road after his

      driving privileges had been forfeited for life. On May 14, 2018, the State

      charged Reed under cause number 69C01-1805-F5-21 (“Cause No. 21”) with

      Count I, operating a vehicle as an habitual traffic violator suspended for life as a

      level 5 felony, and Count II, operating a vehicle as an habitual traffic violator as

      a level 6 felony.


[3]   On August 1, 2018, Reed and the State filed a Joint Motion in Tender of

      Conditional Negotiated Plea pursuant to which Reed agreed to plead guilty to

      Count I and the State agreed to dismiss Count II. The plea agreement stated

      that Reed would be sentenced to six years with three years suspended to

      probation, and that the sentence would be served consecutive to the sentence of

      six years with four years suspended to probation for operating a vehicle as an

      habitual traffic violator suspended for life as a level 5 felony under cause

      number 69C01-1601-F5-6 (“Cause No. 6”). On the same day, the court entered

      an order rejecting the plea agreement and scheduling a jury trial.


[4]   On December 16, 2019, the court held a hearing. Reed pled guilty to Count I

      and the State agreed to dismiss Count II. Reed testified that, when he was

      incarcerated, “it came to me that my poor decisions have been negatively

      affecting my life as well as others around me, so I didn’t have any option but to


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-68 | May 26, 2020   Page 2 of 7
      try and make change in my life.” Transcript Volume II at 12. He testified that

      he entered the RWI Program, spent ten months in-patient, attended NA

      meetings, and took numerous electives such as parenting classes, coping skills

      electives, and anger management. He stated: “I’ve learned to humble myself

      and look out for other inmates and be a positive peer.” Id. at 13. He stated:

      “I’d get behind a wheel and I’d drive a car to support myself and others and

      that would be on impulse and I’m very – was very impulsive and I’m trying to

      change that.” Id. at 14. He testified that, when he “originally got to

      Branchville,” he was written up for the unauthorized possession of a “clicky ink

      pen,” which was the only write up he had. Id. at 15. He stated: “I’m trying to

      hold myself accountable for my past and come in here today and hold myself

      accountable for this and, uh, so to speak, close the door to, uh, hopefully open a

      new perspective.” Id. at 16. He testified that he was driving to Milan, Indiana,

      to park the car and “catch a reliable ride to work.” Id. at 17. He further stated:

      “No one was hurt, the car was legal, insurance was on the vehicle, I had a

      seatbelt on, there was no alcohol, no drugs involved. I was simply trying to, uh,

      function and make money.” Id. at 17.


[5]   In its sentencing order, the court found Reed’s lengthy criminal history and his

      significant history of violating probation as substantial aggravating factors. The

      court did not find any mitigating factors but noted it did “take the following

      factors into consideration”: the nature of the offense and that Reed was

      currently serving a five and one-half-year sentence in Cause No. 6. Appellant’s

      Appendix Volume II at 99. At the hearing, the court also mentioned that Reed


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-68 | May 26, 2020   Page 3 of 7
      was using his time relatively well in the Department of Correction (“DOC”).

      The court sentenced Reed to five and one-half years in the DOC and suspended

      two and one-half years to probation.


                                                  Discussion

[6]   Reed argues that his sentence is inappropriate and requests to be resentenced to

      a fully suspended sentence. He argues that his offense was a victimless and

      non-violent traffic offense, he was only driving to work, and his actions in

      prison show redemptive character.


[7]   Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by

      statute if, after due consideration of the trial court’s decision, [we find] that the

      sentence is inappropriate in light of the nature of the offense and the character

      of the offender.” Under this rule, the burden is on the defendant to persuade

      the appellate court that his or her sentence is inappropriate. Childress v. State,

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


[8]   Ind. Code § 35-50-2-6 provides that a person who commits a level 5 felony shall

      be imprisoned for a fixed term between one and six years, with the advisory

      sentence being three years.


[9]   Our review of the nature of the offense reveals that Reed operated a motor

      vehicle on a public road after his driving privileges had been forfeited for life.

      Reed stated he was driving to Milan to eventually go to work.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-68 | May 26, 2020   Page 4 of 7
[10]   Our review of the character of the offender reveals that Reed pled guilty to

       operating a vehicle as an habitual traffic violator suspended for life as a level 5

       felony. At the hearing, Reed stated he had improved himself while

       incarcerated. The presentence investigation report (“PSI”) indicates that Reed

       reported being employed as a laborer/operator in Milan prior to his

       incarceration. Reed reported having two biological children and that a DCS

       case had been opened on them. He reported that he last consumed alcohol in

       2009, smoked marijuana on and off for several years until 2009, experimented

       with cocaine, LSD, and methamphetamine, last used methamphetamine in

       September 2016, had no substance abuse treatment or counseling, attended

       CMHC for an evaluation, and attended AA meetings after being convicted for

       his DUIs.


[11]   As a juvenile, Reed was alleged to have committed battery resulting in bodily

       injury as a class A misdemeanor if committed as an adult and was placed on an

       informal adjustment. He was also found delinquent for receiving stolen

       property and battery resulting in bodily injury. As an adult, Reed was

       convicted of minor consumption as a class B misdemeanor in 1998. He was

       charged with minor consuming alcohol as a class C misdemeanor and driving

       while suspended as a class A misdemeanor and was sentenced in 1999 to sixty

       days with fifty days suspended and 180 days probation. In 1999, he was

       charged with minor consumption as a class C misdemeanor and entered pre-

       trial diversion. He was convicted of two counts of minor consuming alcohol as

       class C misdemeanors in 1999; resisting law enforcement as a class A


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-68 | May 26, 2020   Page 5 of 7
       misdemeanor and public intoxication as a class B misdemeanor in 2002;

       domestic battery as a class A misdemeanor, public intoxication as a class B

       misdemeanor, and two counts of criminal mischief as class A misdemeanors in

       2004; operating while intoxicated endangering a person and possession of

       paraphernalia as class A misdemeanors in 2005; operating a vehicle while

       intoxicated and intimidation as class D felonies in 2006; domestic battery as a

       class A misdemeanor in 2009; possession of chemical reagents or precursors

       with intent to manufacture as a class C felony and two counts of operating a

       vehicle as an habitual traffic violator as class D felonies in 2012; possession of a

       device or substance used to interfere with drug or alcohol screening as a class B

       misdemeanor in 2016; and operating a vehicle after forfeiture of license for life

       as a level 5 felony under Cause No. 6 in 2018. The PSI also indicates Reed has

       at least ten known misdemeanor convictions and at least six known felony

       convictions, has been found in violation of probation at least ten times, had his

       probation terminated on four occasions, and had two pending offenses in Ohio.


[12]   The PSI further provides that Reed’s overall risk assessment score using the

       Indiana Risk Assessment System places him in the high risk to reoffend

       category. It states that a community corrections coordinator conducted a

       Home Detention Eligibility Application on Reed and “[p]ursuant to Local

       Presumptive Criteria, it was determined [Reed] is not eligible for Home

       Detention due to having two active warrants out of Hamilton County Ohio.”

       Appellant’s Appendix Volume II at 94.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-68 | May 26, 2020   Page 6 of 7
[13]   After due consideration, we conclude that Reed has not sustained his burden of

       establishing that his sentence of five and one-half years with two and one-half

       years suspended to probation is inappropriate in light of the nature of the

       offense and his character. 1


[14]   For the foregoing reasons, we affirm Reed’s sentence.


[15]   Affirmed.


       Najam, J., and Kirsch, J., concur.




       1
         To the extent Reed argues the court abused its discretion in failing to find that he would respond positively
       to probation, he had changed his character and attitude, his acceptance of responsibility, and his guilty plea
       as mitigators, we need not address this issue because we find that his sentence is not inappropriate. See
       Chappell v. State, 966 N.E.2d 124, 134 n.10 (Ind. Ct. App. 2012) (noting that any error in failing to consider
       the defendant’s guilty plea as a mitigating factor is harmless if the sentence is not inappropriate) (citing
       Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that, in the absence of a proper sentencing order,
       Indiana appellate courts may either remand for resentencing or exercise their authority to review the sentence
       pursuant to Ind. Appellate Rule 7(B)), reh’g denied; Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007)
       (noting that, “even if the trial court is found to have abused its discretion in the process it used to sentence the
       defendant, the error is harmless if the sentence imposed was not inappropriate”), trans. denied), trans. denied.
       Even if we were to address Reed’s abuse of discretion argument, we would not find it persuasive in light of
       the record including his extensive criminal history and violations of probation.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-68 | May 26, 2020                              Page 7 of 7
