Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                        FILED
court except for the purpose of                               Jul 24 2012, 8:36 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                         CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
                                                                          tax court



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

LEANNA WEISSMANN                                  GREGORY F. ZOELLER
Lawrenceburg, Indiana                             Attorney General of Indiana

                                                  ERIC P. BABBS
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ROY L. STREICHER,                                 )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )      No. 69A05-1111-CR-603
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                      APPEAL FROM THE RIPLEY CIRCUIT COURT
                           The Honorable Carl H. Taul, Judge
                             Cause No. 69C01-1006-FC-12



                                        July 24, 2012


               MEMORANDUM DECISION - NOT FOR PUBLICATION


BARTEAU, Senior Judge
                                   STATEMENT OF THE CASE

        Roy L. Streicher appeals his aggregate three-year sentence for Class D felony

operating a vehicle while intoxicated with a previous operating while intoxicated

conviction within the last five years, Ind. Code § 9-30-5-3 (2008); Class C misdemeanor

operating a vehicle while intoxicated, Ind. Code § 9-30-5-2 (2001); and Class A

misdemeanor domestic battery with injury, Ind. Code § 35-42-2-1.3 (2006). We remand

with instructions to vacate the Class C misdemeanor conviction but otherwise affirm.

                                                 ISSUES

        I.      We first address sua sponte whether Streicher’s conviction for Class C
                misdemeanor operating a vehicle while intoxicated is barred by the
                prohibition against double jeopardy.

        II.     We then address Streicher’s sole claim on appeal, which we restate as
                whether his sentence is inappropriate.

                            FACTS AND PROCEDURAL HISTORY1

        In June 2010, Streicher had been drinking alcohol and began arguing with his

wife. Streicher told her to move her car or he would run it over with his tractor. When

his wife failed to move her car, Streicher drove the tractor and pinned her between the

tractor and her car. A tractor tire ran over her toe. Streicher left the residence in a truck

and was later stopped by police. He failed field sobriety tests and took a portable breath

test, which registered 0.16 grams of alcohol per 210 liters of breath.




1
 Because the factual bases for the crimes provided at the guilty plea hearing do not provide much detail,
we recite the facts as provided by the probable cause affidavit, which is cited by Streicher in his statement
of facts and was included in the presentence investigation report.
                                                     2
      The State charged Streicher with Class D felony operating a vehicle while

intoxicated with a previous operating while intoxicated conviction within the last five

years (based on a 2007 operating while intoxicated conviction), Class C misdemeanor

operating a vehicle while intoxicated, Class A misdemeanor criminal recklessness, Class

A misdemeanor domestic battery with injury, Class C felony possession of a handgun

without a permit while having a prior felony conviction within fifteen years, and Class C

misdemeanor operating a vehicle with a BAC of at least 0.08. He was also alleged to be

a habitual substance offender.

      Streicher pleaded guilty to Class D felony operating a vehicle while intoxicated

with a previous operating while intoxicated conviction within the last five years, Class C

misdemeanor operating a vehicle while intoxicated, and Class A misdemeanor domestic

battery with injury. At the beginning of the guilty plea hearing, the State had informed

the trial court that Streicher was pleading guilty to Class C misdemeanor operating a

vehicle while intoxicated because “he has to plead to an OWI to get to the felony OWI.”

Tr. p. 8. Defense counsel had agreed: “[H]e has got to plead to the predicate just to make

it work and then they merge.” Id. at 9.

      The trial court sentenced Streicher to the Department of Correction for three years

on the Class D felony, sixty days on the Class C misdemeanor, and one year on the Class

A misdemeanor. The sentences were ordered to be served concurrently, for an aggregate

term of three years. On the State’s motion, the trial court dismissed the remaining

charges. Streicher now appeals his sentence.



                                            3
                              DISCUSSION AND DECISION

                                 I. DOUBLE JEOPARDY

         We first address sua sponte whether Streicher’s conviction for Class C

misdemeanor operating a vehicle while intoxicated is barred by the prohibition against

double jeopardy. See Harrison v. State, 901 N.E.2d 635, 643-44 (Ind. Ct. App. 2009)

(addressing double jeopardy issue sua sponte), trans. denied. “Where the conviction of

the greater crime cannot be had without conviction of the lesser crime, the double

jeopardy clause bars separate conviction and sentencing on the lesser crime when

sentencing is imposed on the greater one.” Boze v. State, 514 N.E.2d 275, 277 (Ind.

1987).

         Streicher was convicted of both Class D felony operating a vehicle while

intoxicated with a previous operating while intoxicated conviction within the last five

years and Class C misdemeanor operating a vehicle while intoxicated. Indiana Code

section 9-30-5-2(a) provides that “a person who operates a vehicle while intoxicated

commits a Class C misdemeanor.” Indiana Code section 9-30-5-3(a) provides:

         (a) . . . [A] person who violates section 1 or 2 of this chapter commits a
         Class D felony if:
                 (1) the person has a previous conviction of operating while
                 intoxicated that occurred within the five (5) years immediately
                 preceding the occurrence of the violation of section 1 or 2 of this
                 chapter . . . .

Thus, a person commits a Class D felony if he operates a vehicle while intoxicated and

has had a previous conviction of operating while intoxicated within the five immediately

preceding years.


                                             4
       It is clear from the statements of counsel at the guilty plea hearing that the Class C

misdemeanor and Class D felony operating while intoxicated convictions are predicated

on the same act of operating while intoxicated. The only difference between the two

offenses is that the enhancement to the Class D felony was based on Streicher’s 2007

operating while intoxicated conviction. Streicher’s Class C misdemeanor conviction is

thus a factually lesser included offense of the Class D felony conviction. We conclude

that the convictions violate double jeopardy and therefore remand with instructions to

vacate the Class C misdemeanor conviction. See Puckett v. State, 843 N.E.2d 959, 964

(Ind. Ct. App. 2006) (concluding that merger was insufficient and remanding with

instructions to vacate Class C misdemeanor operating while intoxicated conviction where

it was a factually lesser included offense of Class D felony operating while intoxicated

conviction). As all of Streicher’s sentences were ordered to be served concurrently, the

vacation of his Class C misdemeanor conviction does not affect the aggregate term of his

sentence.

                            II. INAPPROPRIATE SENTENCE

       Streicher contends that his sentence is inappropriate. Although a trial court may

have acted within its lawful discretion in imposing a sentence, Article 7, Sections 4 and 6

of the Indiana Constitution authorize independent appellate review and revision of

sentences through Indiana Appellate Rule 7(B), which provides that a 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.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007) (citing

                                             5
Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218

(2007)).   The defendant has the burden of persuading us that his sentence is

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

assessing whether a sentence is inappropriate, appellate courts may take into account

whether a portion of the sentence is ordered suspended or otherwise crafted using any of

the variety of sentencing tools available to the trial judge. Davidson v. State, 926 N.E.2d

1023, 1025 (Ind. 2010).

       We first look to the statutory ranges established for the classes of the offenses.

Streicher pleaded guilty to a Class D felony and a Class A misdemeanor. The statutory

range for a Class D felony is between six months and three years, with the advisory

sentence being one and a half years. Ind. Code § 35-50-2-7(a) (2005). For a Class A

misdemeanor, a person may not be imprisoned for more than one year. Ind. Code § 35-

50-3-2 (1977). Streicher was given maximum terms, to be served concurrently, for an

aggregate three-year sentence.

       We next look to the nature of the offenses and Streicher’s character. As to the

nature of the offenses, Streicher was drinking, argued with his wife, pinned her between

two vehicles, and ran over her toe with the tractor. He then left the scene.

       As to Streicher’s character, his criminal history alone justifies the sentence

imposed by the trial court. Streicher has accumulated fifteen criminal convictions across

three states. Of those convictions, many are similar in nature to the offenses here: one

was for domestic violence in Alabama, five were for operating while intoxicated in



                                             6
Indiana, and at least three were alcohol-related offenses in Ohio. Moreover, Streicher has

previously been placed on probation but has violated probation multiple times.

        Streicher nonetheless asks us to consider his alcohol addiction as a factor

warranting a lesser sentence. At the sentencing hearing, he asserted that he had never

been offered help for his problems with alcohol:

        I would just like to say, Your Honor, you know, alcohol has affected my
        life and I have had several DUI’s and nobody has ever offered me help,
        counseling or anything and it’s a, it is a pattern, I don’t, I go two (2), three
        (3) years without a DUI but then I receive another one and I, I know it is
        not the right thing to do. I just, I would like to get some help somehow.

Tr. pp. 25-26. To the contrary, the presentence investigation report shows that he has

been ordered to obtain a substance abuse evaluation and to comply with treatment

recommendations and that he has been ordered to go through mandatory alcohol

treatment.     He also informed the probation department that he attended Alcoholics

Anonymous ten times while on probation in 2006. We acknowledge Streicher’s alcohol

issues; however, given his failure to conform his behavior despite treatment opportunities

and numerous alcohol-related convictions, a reduction in his sentence is not warranted.

        Streicher has failed to persuade us that his sentence is inappropriate in light of the

nature of his offenses and his character.2


2
  Streicher asserts in his argument summary that the trial court abused its discretion by not suspending any
of his sentence to probation, but he fails to develop a corresponding argument. In any event, a trial
court’s decision not to suspend a sentence is reviewable only for an abuse of discretion. Ables v. State,
848 N.E.2d 293, 296 (Ind. Ct. App. 2006). As noted above, Streicher has violated probation multiple
times. Further, the probation department stated that it did not believe Streicher was a good candidate for
probation. The trial court apparently agreed:

        Probation is a waste of time on you, Mr. Streicher, frankly. You are either going to help
        yourself or not. And from what I see you are not going to so I am not going to waste my
                                                     7
                                             CONCLUSION

        For the reasons stated, we remand to the trial court with instructions to vacate the

Class C misdemeanor conviction and affirm Streicher’s aggregate three-year sentence.

        Affirmed in part, remanded in part with instructions.

ROBB, C.J., and FRIEDLANDER, J., concur.




        probation department’s time taking up time with you. There’s just no point. If you want
        to help yourself you can if you don’t, then you will be back in here or some other court.

Tr. p. 29. We cannot say that the trial court abused its discretion.
                                                      8
