Pursuant to Ind. Appellate Rule 65(D), this                                  Dec 03 2013, 5:48 am
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:

KRISTIN A. MULHOLLAND                          GREGORY F. ZOELLER
Appellate Public Defender                      Attorney General of Indiana
Crown Point, Indiana
                                               ANDREW FALK
                                               Deputy Attorney General
                                               Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ERIC L. HECKER, JR.,                           )
                                               )
       Appellant-Defendant,                    )
                                               )
              vs.                              )       No. 45A05-1304-CR-202
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Plaintiff.                     )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                          The Honorable Salvador Vasquez, Judge
                              Cause No. 45G01-1111-FD-275



                                    December 3, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BRADFORD, Judge
                                    CASE SUMMARY

       Appellant-Defendant Eric L. Hecker, while driving a friend’s automobile, was

involved in a single-car collision that resulted in serious bodily injury to at least one of the

three passengers in the vehicle. Hecker fled the scene of the accident and later told a police

officer that he was not in the car at the time of the accident. Appellee-Plaintiff the State of

Indiana charged Hecker with three counts of failure to stop at an accident involving serious

bodily injury to another person, a Class D felony, and one count of false reporting or

informing, a Class A misdemeanor. The parties entered into a plea agreement whereby

Hecker pled guilty to one count of failure to stop. The court sentenced Hecker to three

years of incarceration, the maximum term permitted, due to several aggravating

circumstances. Hecker appeals for review of the appropriateness of the trial court’s

sentence. Because Hecker has served the entirety of his sentence, the case is moot.

Nevertheless, we address Hecker’s argument on the merits and conclude that the trial

court’s sentence was appropriate in light of the nature of the offense and the character of

the offender. We affirm.

                             STATEMENT OF THE FACTS

       At approximately 1:30 a.m. on October 22, 2011, Hecker was driving a friend’s

Pontiac Grand Am in Crown Point, Indiana, when he was involved in a single-car collision.

Prior to the collision, Hecker had been “bar hopping” with three friends, who were also in

the car at the time of the accident. Appellant’s App. p. 71. Following the accident, Hecker

did not call 911 or attempt to assist his injured friends. Hecker fled the scene before

medical services and law enforcement arrived. Later, when asked about the accident by an

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investigating officer, Hecker told the officer that he was not inside the vehicle during the

accident.

       Lindsay Rogers, one of the vehicle passengers, was seriously injured in the accident,

suffering a torn aorta, a broken left elbow, and a deep laceration to her forehead. Due to

the severity of her injuries, Rogers was airlifted to Christ Hospital in Chicago for

emergency surgery to repair the torn aorta; she later underwent a second surgery for the

broken elbow.

       On November 29, 2011, the State charged Hecker with three counts of failure to

stop following an accident involving serious bodily injury to another person, a Class D

felony, and one count of false reporting or informing, a Class A misdemeanor. On February

20, 2013, the parties entered into a plea agreement whereby Hecker pled guilty to one count

of failure to stop. On March 21, 2013, the trial court imposed a three-year sentence. In the

sentencing order, the trial court listed several aggravating circumstances. Hecker has a

criminal history that includes convictions for five misdemeanors and one felony.

Additionally, there were three open cases against Hecker at the time of sentencing. These

cases included charges of strangulation and theft, being a habitual controlled substance

offender, and two charges of operating while intoxicated (“OWI”). The trial court granted

the State’s petition to revoke Hecker’s bond after the second of these OWIs. The trial court

also noted that prior leniency by criminal courts had no deterrent effect on Hecker’s

behavior. The trial court found that each aggravating factor, standing alone, outweighed

Hecker’s mitigating factor. The trial court listed Hecker’s guilty plea as the only mitigating

circumstance. The trial court found that Hecker was entitled to receive credit for 447 days

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spent in confinement as a result of this charge, plus 447 days of good time credit, for a total

of 894 days credit. As the state notes in its brief, Hecker was scheduled to be released on

June 29, 2013. Appellee’s Br. 5.

                             DISCUSSION AND DECISION

       After the application of the credit time provided for in the trial court’s sentencing

order, Hecker had 201 days remaining on his three-year sentence. Hecker’s scheduled

release date, with good time, was June 29, 2013. Regardless, it has been over 201 days

since the March 21, 2013 sentencing order was issued and we are under the impression that

Hecker has served the entirety of his sentence. Consequently, Hecker cannot be granted

relief regardless of the outcome of our opinion; thus his appeal is moot. See Irwin v. State,

744 N.E.2d 565, 568 (Ind. Ct. App. 2001) (once sentence has been served, the issue of the

validity of the sentence is rendered moot, and the appellate court does not engage in

discussions of moot questions). Nevertheless, we address the merits of his claim.

                                    Standard of Review

       Indiana Appellate Rule 7(B) provides that 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.” Although Rule 7(B) does not require us to be “extremely” deferential to a

trial court’s sentencing decision, we still must give due consideration to that decision.

Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). This consideration stems

from the unique perspective a trial court brings to its sentencing decisions. Id. Finally, the

defendant bears the burden of persuading the appellate court that the sentence is

                                               4
inappropriate. Id.

                             Appropriateness of the Sentence

       Class D felonies are punishable by a term of between six months and three years,

with an advisory sentence of one and one-half years. Ind. Code § 35-50-2-7. Hecker argues

that his three-year sentence was inappropriate in light of the nature of the offense and his

character. We find that the nature of the offense was particularly egregious considering

the extent of Rogers’s injuries.      The State provided extensive evidence of the life-

threatening nature of Rogers’s injuries, as well as the difficult and ongoing recovery she

faces. Although Rogers was unable to testify due to her injuries, her father testified that

Hecker encouraged another passenger in the vehicle to flee the scene. Hecker’s callous

disregard for the well-being of his friends and subsequent attempt to cover up his

involvement in the accident illustrates the careless and wanton nature of his offense.

       Hecker’s character was thoroughly vetted in the presentence investigation report

and at the sentencing hearing. Of Hecker’s five prior misdemeanor convictions, four were

alcohol-related offenses, including two OWIs. Additionally, at the time of sentencing,

Hecker had an open felony case in which he was charged with strangulation, theft and

battery. In three of his previous misdemeanor cases, Hecker was ordered to complete an

alcohol and drug services program. While out on bond in this case, Hecker was arrested

two more times for OWI, both of which were charged as Class D felonies. “Although a

record of arrests by itself is not evidence of a defendant’s criminal history, it is appropriate

to consider such a record as a poor reflection on the defendant’s character, because it may

reveal that he or she has not been deterred even after having been subjected to the police

                                               5
authority of the State.” Rutherford, 866 N.E.2d at 874.

       This pattern shows that Hecker has failed to learn from prior leniency by courts and

that these instances have had no deterrent effect on his criminal behavior or problems with

alcohol. Witness Patricia Vann, Hecker’s mother, testified on her son’s behalf at the

sentencing hearing. During her testimony, Vann addressed Hecker’s ongoing problems

with alcohol. Vann testified that she supported the trial court’s earlier decision to revoke

Hecker’s bond because she felt that incarceration would allow Hecker time to deal with his

alcohol addiction. Not only does Hecker’s character fail to counteract the aggravating

weight of the nature of the offense, it warrants its own aggravating weight.

       Finally, Hecker acknowledged at the sentencing hearing that, based on the

aggravating and mitigating circumstances, he was probably going to receive a two-and-a-

half year sentence. Instead of arguing for a lesser term, he sought to serve the remainder

of the term in a work program. Hecker now argues, in his brief, that “the nature of his

offense was not such that it warranted such a deviation from the advisory sentence.”

Appellant’s Brief p. 5. However, Hecker had already conceded at the sentencing hearing

that he was likely to receive a sentence near the maximum. We find Hecker’s argument

contradictory and unpersuasive. Accordingly, we cannot say that Hecker’s three-year

sentence was inappropriate.

       The judgment of the trial court is affirmed.

BAILEY, J., and MAY, J., concur.




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