                                                                               FILED
                                                                           Mar 23 2016, 7:10 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Michael J. Kyle                                           Gregory F. Zoeller
Kathie A. Perry                                           Attorney General
Baldwin Kyle & Kamish
Franklin, Indiana
                                                          Ellen H. Meilaender
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Morgan Mannix,                                            March 23, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A04-1505-CR-294
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Kurt M. Eisgruber
Appellee-Plaintiff                                        Trial Court Cause No.
                                                          49G01-1211-FC-79738



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016                      Page 1 of 23
                                           Case Summary
[1]   Morgan Mannix struck and killed Alex Trabbert, who was walking along the

      road, when she was driving home around 2:30 a.m. Mannix stopped her car

      and briefly looked around but then left when she did not see anything. Mannix

      later consented to a blood draw, which occurred approximately seven and a

      half hours after the accident. The results showed that Mannix’s blood-alcohol

      concentration was 0.10.


[2]   After a jury trial, Mannix was convicted of Class C felony failure to stop after

      an accident resulting in death and Class C felony operating while intoxicated

      causing death. Despite noting that he had never seen more compelling

      mitigators than in this case, the trial judge sentenced Mannix to an above-

      advisory term of six years for each conviction, to be served concurrently. The

      judge suspended two years and ordered one year of probation.


[3]   Reading together Indiana Code sections 9-30-6-15 and 9-30-7-3, we conclude

      that the fact that a chemical test was administered more than three hours after

      an accident does not render it inadmissible; rather, it deprives the State of the

      rebuttable presumption that the driver’s blood-alcohol concentration at the time

      of the test was the same at the time of the accident. In addition, we agree that

      the trial court erred in sentencing Mannix to an above-advisory term for each

      conviction. This is because the judge appeared to rely on the elements of one

      offense to support an above-advisory sentence for the other offense, and vice

      versa, but did not identify anything unique about the circumstances that would


      Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016   Page 2 of 23
      justify deviating from the advisory sentence, especially in light of the numerous

      mitigators in this case. We therefore use our review-and-revise authority to

      sentence Mannix to the advisory term of four years with one year suspended for

      each conviction, to be served concurrently, and one year of probation.



                             Facts and Procedural History
[4]   In November 2012, twenty-three-year-old Morgan Mannix went home for

      Thanksgiving. She stayed with her parents, who lived on the northeast side of

      Indianapolis.

[5]   The day after Thanksgiving, Mannix drove to a friend’s house at 96th Street

      and Allisonville Road. According to Mannix, she drank “probably” six Bud

      Light beers between 11 p.m. and 1 a.m. Ex. 14. She stopped drinking around

      1:00 a.m. and then left her friend’s house around 2:30 a.m. to drive back home.

[6]   Mannix took Shadeland Avenue to get home. She was driving south on

      Shadeland between 71st and 75th Streets when her passenger-side tires left the

      road and drove on the adjacent grass for over 100 feet.1 Mannix struck and

      killed twenty-three-year-old Alex Trabbert with her car. Alex had just left

      Fairbanks, an addictions treatment center near Community Hospital North at

      82nd Street and Shadeland, and was walking along Shadeland carrying a pillow




      1
       At trial, an officer explained that there was no emergency lane or gravel area between the road and the
      grass. In other words, the road “basically goes from white line to grass.” Tr. p. 237-38.

      Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016                         Page 3 of 23
      and trash bag full of his belongings. Mannix did not know what she hit and

      stopped her car. She looked around for about 10-15 seconds but then left when

      she did not see anything. Mannix drove the rest of the way home and went

      straight to bed. She did not call 911.

[7]   Around 5:30 a.m. Saturday morning, a passerby was driving south on

      Shadeland and spotted Alex’s body by the side of the road. The passerby called

      911, and police officers arrived on the scene shortly thereafter. Alex had

      massive head trauma and bleeding. His cause of death was later determined to

      be multiple blunt force trauma to the head. Tr. p. 383.


[8]   When Mannix woke up Saturday morning around 8:30 a.m., she told her

      father, Charles Mannix, that she “was driving home last night and something

      hit [her] car.” Id. at 265. Charles surveyed the damage to his daughter’s car,

      which included a shattered windshield on the passenger side and a dented

      hood. Charles then drove approximately two miles to the location Mannix

      described, where he encountered Indianapolis Metropolitan Police Department

      Detective Eric Snow—a member of Marion County’s Fatal Alcohol Crash

      Team—sweeping debris. Charles asked Detective Snow if there had been an

      accident, and Detective Snow said that a pedestrian had been struck and killed.

      Charles responded, “I think my daughter may have been involved.” Id. at 271.

      Detective Snow asked if he could come to their house to see Mannix’s car, and

      Charles agreed.




      Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016   Page 4 of 23
[9]    Detective Snow and Lawrence Police Department Officer Michael McKenna—

       also a member of the Fatal Alcohol Crash Team—went to the Mannix home.

       Detective Snow arrived first; he examined Mannix’s car and then went inside to

       speak with Mannix and her parents. When Officer McKenna arrived, he used a

       card to read Mannix Indiana’s implied-consent law for crashes involving

       fatalities. Id. at 295-96. Officer McKenna specifically told Mannix that she had

       the right to refuse the chemical test as well as the penalties for refusing. Id. at

       295. Mannix consented to a blood draw, and Officer McKenna drove her to

       Eskenazi Hospital.2 During their interactions with Mannix, both officers

       smelled alcohol on her breath and person. Id. at 300, 467.


[10]   At the hospital, Mannix told the registered nurse that she consented to the

       blood draw and then signed the hospital’s toxicology-sample log, which

       indicated that her blood draw was by “consent.” Id. at 340-41; Ex. 17.

       Mannix’s blood was drawn at 9:52 a.m., approximately seven and a half hours

       after the accident. Tr. p. 543; Ex. 17. Testing showed that Mannix’s blood-

       alcohol concentration was 0.10. Ex. 23. Using retrograde extrapolation,

       Mannix’s blood-alcohol concentration was estimated to be between 0.17 and

       0.28 at the time of the accident. Testing also showed the presence of marijuana.

[11]   After the blood draw, Mannix agreed to give a statement. She was transported

       to the police station, where she waived her Miranda rights and gave her version




       2
           It was called Wishard Hospital at the time.


       Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016    Page 5 of 23
       of the events. She explained that after she struck Alex with her car, she

       “freaked out” and “panicked” because she thought she might have hit a person.

       Ex. 14. She stopped her car and briefly looked around but then left “too soon.”

       Id. She acknowledged that she “shouldn’t have left” and that she should have

       called 911. She told the police that she wanted to do “absolutely whatever” she

       could to “take responsibility.” Id. She broke down when the officers told her

       that Alex was her age.

[12]   Three days after the accident, the State charged Mannix with one count: Class

       C felony failure to stop after an accident resulting in death. The State later

       added Class B felony operating a vehicle with a controlled substance or its

       metabolite in the body causing death. Then, on July 17, 2014—which was a

       few days before trial was set to begin and when plea negotiations had stalled—

       the State moved to amend the charging information to include three additional

       counts, all involving alcohol: Class B felony operating a vehicle with a blood-

       alcohol concentration greater than 0.15 causing death, Class C felony operating

       a vehicle with a blood-alcohol concentration greater than 0.08 causing death,

       and Class C felony operating a vehicle while intoxicated causing death. The

       trial court took the trial off the calendar and charged the delay to the State. On

       November 24, 2014, the trial court issued an order allowing the State to add the

       Class C felony OWI-causing-death charge—but not the BAC charges3—and




       3
         The trial court reasoned that the extrapolation evidence could not reliably establish a specific BAC at
       the time of the accident. However, the court noted that the OWI-causing-death charge was different,

       Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016                           Page 6 of 23
       rescheduled the trial. See Appellant’s App. p. 195-98 (trial court’s order); 12-13

       (final charging information listing three charges).

[13]   Mannix’s jury trial began April 6, 2015. The jury found Mannix guilty of Class

       C felony failure to stop after an accident resulting in death and Class C felony

       operating a vehicle while intoxicated causing death but not guilty of Class B

       felony operating a vehicle with a controlled substance in the body causing

       death.


[14]   Mannix faced a sentence of “between two (2) and eight (8) years, with the

       advisory sentence being four (4) years” for each Class C felony conviction. Ind.

       Code § 35-50-2-6(a). In addition, both of Mannix’s sentences were fully

       suspendable at that time. See Ind. Code Ann. § 35-50-2-2 (West 2012); Tr. p.

       743, 752 (prosecutor and defense counsel pointing out to the trial court that

       Mannix’s sentences were suspendable). At the sentencing hearing, Mannix,

       who was twenty-six years old, submitted several letters, called five witnesses,

       and testified on her own behalf. Defense counsel argued that Mannix had no

       criminal history, had excelled in her career, and had a rare family structure and

       unit. He also highlighted that Mannix “surrendered to the authorities and was

       cooperative with them,” had engaged in counseling and drug and alcohol

       treatment while on bond awaiting trial, and was clearly remorseful. Id. at 752.




       because it required “a showing of intoxication rather than the precision required of BAC calculations.”
       Appellant’s App. p. 198.



       Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016                         Page 7 of 23
       Defense counsel, who claimed that there were no aggravators, did not ask for a

       fully suspended sentence for Mannix. Instead, he asked that Mannix not be

       sent to the Indiana Department of Correction but rather serve any time through

       Marion County Community Corrections.

[15]   In pronouncing sentence, the trial judge noted that this case involved “a series

       of poor decision making that resulted in a tragedy.” Id. at 757. The judge

       explained that his “philosophy” for these cases is that the “presumption” is that

       the defendant goes to prison when someone dies. Id. The judge acknowledged

       that Mannix was “a good person” and “a highly respected individual in our

       community” and in her profession. Id. at 754, 757. In fact, the judge said that

       “in [his] career,” he had never seen more “compelling” mitigators than in this

       case. Id. at 757. Nevertheless, the judge sentenced Mannix to an above-

       advisory term of six years for each conviction, to be served concurrently. The

       judge suspended two years and ordered the final year of the executed portion of

       the sentence to be served on home detention. See id. at 758 (“Three years at the

       Department of Correction[] followed by one year of Community

       Corrections.”). The judge also ordered Mannix to serve one year of probation.

[16]   Mannix now appeals.



                                  Discussion and Decision
[17]   Mannix raises three issues on appeal. First, she contends that the trial court

       erred in admitting evidence of her blood draw because her consent was not


       Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016   Page 8 of 23
       voluntary. Second, she contends that the trial court erred in allowing the State

       to amend the charging information to add Class C felony OWI causing death

       because it was a substantive amendment that prejudiced her substantial rights.

       Last, she contends that the trial court erred by relying on the elements of the

       offenses to sentence her to an above-advisory term for each conviction.



                                I. Consent for Blood Draw
[18]   Mannix contends that the trial court erroneously admitted evidence of her

       blood draw in violation of the Fourth Amendment to the United States

       Constitution. Generally, a search warrant is a prerequisite to a constitutionally

       proper search and seizure. Halsema v. State, 823 N.E.2d 668, 676 (Ind. 2005).

       In cases involving a warrantless search, the State bears the burden of proving an

       exception to the warrant requirement. Id. One of the well-recognized

       exceptions to the warrant requirement is a voluntary and knowing consent to

       search. Temperly v. State, 933 N.E.2d 558, 563 (Ind. Ct. App. 2010), trans.

       denied. The voluntariness of a consent to search is a question of fact to be

       determined from the totality of the circumstances. Id. A consent to search is

       valid except where it is procured by fraud, duress, fear, or intimidation, or

       where it is merely a submission to the supremacy of the law. Id.


[19]   At trial, the State relied on Indiana’s implied-consent law as authority for the

       warrantless search of Mannix’s blood. Our implied-consent law provides that a

       “person who operates a vehicle impliedly consents to submit” to the test

       provisions “as a condition of operating a vehicle in Indiana.” Ind. Code §§ 9-

       Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016   Page 9 of 23
       30-6-1, 9-30-7-2. The policy behind this law is to keep roadways safe by

       removing the threat posed by the presence of drunk drivers. State v. Bisard, 973

       N.E.2d 1229, 1232 (Ind. Ct. App. 2012), trans. denied.


[20]   Indiana’s implied-consent law appears at Indiana Code chapters 9-30-6 and 9-

       30-7. Indiana Code chapter 9-30-7 applies here because there was a fatality.

       Under this chapter, if a police officer “has reason to believe” that a person

       operated “a vehicle that was involved in a fatal accident or an accident

       involving serious bodily injury,” the officer “shall offer a portable breath test or

       chemical test” to that person. Ind. Code § 9-30-7-3(a) (emphasis added). Unlike

       Chapter 9-30-6,4 the officer is not required to have probable cause that the driver

       was intoxicated. Temperly, 933 N.E.2d at 562; Brown v. State, 744 N.E.2d 989,

       993 (Ind. Ct. App. 2001). Refusal to submit to a portable breath test or

       chemical test is an infraction and results in the suspension of driving privileges.

       Ind. Code § 9-30-7-5.

[21]   Mannix, who concedes that the officers had reason to believe that she was

       involved in the fatality, see Appellant’s Br. p. 10, first argues that her consent

       was not voluntary because the officers did not offer her a portable breath test

       first. In support of this argument, Mannix relies on the following emphasized

       language in Indiana Code section 9-30-7-3(a):




       4
         Chapter 9-30-6 requires a police officer to have probable cause that a person was intoxicated before offering
       a chemical test.

       Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016                          Page 10 of 23
        (a) A law enforcement officer shall offer a portable breath test or
        chemical test to any person who the officer has reason to believe
        operated a vehicle that was involved in a fatal accident or an
        accident involving serious bodily injury. If:


                 (1) the results of a portable breath test indicate the presence of
                 alcohol;


                 (2) the results of a portable breath test do not indicate the presence
                 of alcohol but the law enforcement officer has probable cause to
                 believe the person is under the influence of a controlled substance
                 or another drug; or


                 (3) the person refuses to submit to a portable breath test;


        the law enforcement officer shall offer a chemical test to the person.


Ind. Code § 9-30-7-3(a) (emphasis added). Mannix claims that the emphasized

language requires an officer to offer a portable breath test before offering a

chemical test. However, the first sentence of subsection (a) states that an officer

“shall offer a portable breath test or chemical test.” Id. (emphasis added).

Therefore, according to the plain language of the statute, when there is an

accident resulting in serious bodily injury or death, the officer can choose what

test to offer the driver first: (1) a portable breath test, the results of which are

generally inadmissible at trial, State v. Whitney, 889 N.E.2d 823, 828 (Ind. Ct.

App. 2008), or (2) a chemical test, the results of which are admissible at trial if

certain requirements are met, see Bisard, 973 N.E.2d at 1233. The language that

follows the first sentence simply sets forth additional conditions that apply if the

officer chooses to offer the driver a portable breath test first. But because
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016              Page 11 of 23
       Officer McKenna offered Mannix a chemical test first, these conditions do not

       apply here. We therefore do not address Mannix’s arguments that the officers

       did not satisfy these conditions.


[22]   Mannix next argues that her consent was not voluntary because the implied-

       consent law requires chemical tests to be administered within three hours of the

       accident, but her test was administered approximately seven and a half hours

       after the accident. The statute provides:

               (b) A law enforcement officer may offer a person more than one
               (1) portable breath test or chemical test under this section.
               However, all chemical tests must be administered within three (3) hours
               after the fatal accident or the accident involving serious bodily injury.


       I.C. § 9-30-7-3(b) (emphasis added). There are no provisions in Chapter 9-30-7

       that address what happens if the chemical test is not administered within three

       hours of the accident.

[23]   We, however, have held that some provisions in Chapters 9-30-6 and 9-30-7

       should be read together. See Temperly, 933 N.E.2d at 565. For example, we

       have specifically applied Indiana Code section 9-30-6-15, which addresses what

       happens if the chemical test is not administered within three hours, to Chapter

       9-30-7. See id. Section 9-30-6-15 provides:


               (b) If, in a prosecution for an offense under IC 9-30-5, evidence
               establishes that:


                        (1) a chemical test was performed on a test sample taken
                        from the person charged with the offense within the period
       Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016        Page 12 of 23
                  of time allowed for testing under section 2 of this
                  chapter;[5] and


                  (2) the person charged with the offense had an alcohol
                  concentration equivalent to at least eight-hundredths (0.08)
                  gram of alcohol per:


                           (A) one hundred (100) milliliters of the person’s
                           blood at the time the test sample was taken; or


                           (B) two hundred ten (210) liters of the person’s
                           breath;


         the trier of fact shall presume that the person charged with the offense had
         an alcohol concentration equivalent to at least eight-hundredths (0.08)
         gram of alcohol per one hundred (100) milliliters of the person’s blood or
         per two hundred ten (210) liters of the person’s breath at the time the
         person operated the vehicle. However, this presumption is rebuttable.


Ind. Code § 9-30-6-15(b) (emphasis added). This statute allows a jury to relate

the driver’s blood-alcohol concentration at the time of the chemical test back to

the time of the accident. Disbro v. State, 791 N.E.2d 774, 778 (Ind. Ct. App.

2003), trans. denied; Allman v. State, 728 N.E.2d 230, 232 (Ind. Ct. App. 2000).

If the State fails to prove that the chemical test occurred within three hours, it is

not allowed to rely on the presumption. Allman, 728 N.E.2d at 232.




5
 According to Indiana Code section 9-30-6-2(c), “A test administered under this chapter must be
administered within three (3) hours after the law enforcement officer had probable cause to believe the person
committed an offense under IC 9-30-5 or a violation under IC 9-30-15.”

Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016                        Page 13 of 23
[24]   Mannix was charged with operating while intoxicated causing death under

       Indiana Code chapter 9-30-5. See Appellant’s App. p. 12. Accordingly, Indiana

       Code section 9-30-6-15 applies. But because Mannix’s blood was drawn more

       than three hours after the accident, the State was deprived of the rebuttable

       presumption in Section 9-30-6-15(b) and therefore must have provided

       extrapolation evidence relating Mannix’s blood-alcohol concentration at the

       time of the test back to the time of the accident. Allman, 728 N.E.2d at 234;

       State v. Stamm, 616 N.E.2d 377, 380 (Ind. Ct. App. 1993). At trial, the State

       presented evidence that Mannix’s blood-alcohol concentration was between

       0.17 and 0.28 at the time of the accident. Accordingly, the fact that Mannix’s

       blood was drawn more than three hours after the accident “is relevant only to

       the rebuttable presumption, not the admissibility of the chemical test.” See

       Stamm, 616 N.E.2d at 380.


[25]   The evidence shows that Mannix consented to a blood draw after Officer

       McKenna read her Indiana’s implied-consent law, including that she had the

       right to refuse the chemical test as well as the penalties for refusing.6 Mannix

       also told the registered nurse who drew her blood that she consented to the

       blood draw and then signed the hospital’s log indicating that it was a




       6
         Mannix filed a motion to suppress in which she claimed that Detective Snow essentially said that she was
       required to have her blood drawn. The trial court ruled that any error in Detective Snow’s advisement was
       later cured when Officer McKenna properly advised Mannix of her rights under the implied-consent law. See
       Tr. p. 188-89, 195. Although Mannix appears to revive this argument on appeal, see Appellant’s Br. p. 11,
       she provides no analysis and therefore has waived it.

       Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016                     Page 14 of 23
       consensual blood draw. Because Mannix voluntarily consented to the blood

       draw, the trial court did not err in admitting evidence of the blood draw.



                  II. Amendment of Charging Information
[26]   Mannix next contends that the trial court erred in allowing the State to amend

       the charging information to add Class C felony OWI causing death because it

       was a substantive amendment that prejudiced her substantial rights. The State

       concedes that the amendment was substantive but argues that the amendment

       did not prejudice Mannix’s substantial rights. Appellee’s Br. p. 33-34.

[27]   Indiana Code section 35-34-1-5 governs amendments to charging informations.

       Subsection (b) provides, in pertinent part, that “[t]he indictment or information

       may be amended in matters of substance . . . at any time . . . before the

       commencement of trial . . . if the amendment does not prejudice the substantial

       rights of the defendant.” Ind. Code § 35-34-1-5(b). A defendant’s substantial

       rights “include a right to sufficient notice and an opportunity to be heard

       regarding the charge.” Erkins v. State, 13 N.E.3d 400, 405 (Ind. 2014)

       (quotation omitted), reh’g denied. “Ultimately, the question is whether the

       defendant had a reasonable opportunity to prepare for and defend against the

       charges.” Id. at 405-06 (quotation omitted).


[28]   We agree with the State that Mannix’s substantial rights were not prejudiced

       because she had more than sufficient time to prepare for and defend against the

       new charge. The State filed the motion to amend the charging information on


       Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016   Page 15 of 23
       July 17, 2014, which the trial granted on November 24, 2014, and the jury trial

       began April 6, 2015. Mannix therefore had almost eight months from when the

       State filed the motion to amend—or almost five months from when the trial

       court granted the amendment—to prepare for and defend against the new

       charge. Because Mannix had a significant amount of time to prepare a defense,

       she cannot show that she was prejudiced by the added charge. See Gomez v.

       State, 907 N.E.2d 607, 611 (Ind. Ct. App. 2009) (“Here, the time period

       between the amendment of the charging information and the jury trial was

       approximately ten months and gave Gomez the opportunity to prepare for the

       murder charge. Gomez cannot show that he was prejudiced by the added

       charge as he had ample notice of the new charge and a significant amount of

       time to prepare a defense for the trial.”), trans. denied. Accordingly, the trial

       court did not err when it granted the State’s motion to amend the charging

       information to include Class C felony OWI causing death.



                                            III. Sentencing
[29]   Mannix makes several challenges to her sentence, including that the trial court

       erred by relying on the elements of the offenses to sentence her to an above-

       advisory term for each conviction. See Appellant’s Br. p. 14-15.


[30]   The advisory sentence is the starting point our legislature has selected as an

       appropriate sentence for the crime committed. Gomillia v. State, 13 N.E.3d 846,

       852 (Ind. 2014). Nevertheless, a trial judge may impose any sentence within

       the statutory range without regard to the existence of aggravating or mitigating

       Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016   Page 16 of 23
       factors. Id. However, if the trial court finds the existence of aggravating or

       mitigating circumstances, then the court is required to give “a statement of the

       court’s reasons for selecting the sentence that it imposes.” Id. (quoting Ind.

       Code § 35-38-1-3); see also Windhorst v. State, 868 N.E.2d 504, 506 (Ind. 2007)

       (“Indiana trial courts are required to enter sentencing statements whenever

       imposing sentence for a felony offense.”), reh’g denied. The statement


               must include a reasonably detailed recitation of the trial court’s
               reasons for imposing a particular sentence. If the recitation
               includes a finding of aggravating or mitigating circumstances,
               then the statement must identify all significant mitigating and
               aggravating circumstances and explain why each circumstance
               has been determined to be mitigating or aggravating.


       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218 (Ind. 2007).

[31]   In addition, “[w]here a trial court’s reason for imposing a sentence greater than

       the advisory sentence includes material elements of the offense, absent

       something unique about the circumstances that would justify deviating from the

       advisory sentence, that reason is improper as a matter of law.” Gomillia, 13

       N.E.3d at 852-53.

[32]   Here, the trial judge said that “in [his] career,” he had never seen more

       “compelling” mitigators than in this case. Tr. p. 757. The judge then appeared

       to justify imposing an above-advisory sentence for each conviction by relying




       Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016     Page 17 of 23
on “both counts and the elements” as aggravators.7 Id. at 757-58. We find this

problematic for two reasons. First, the sentencing statement did not include a

reasonably detailed explanation of why both counts and the elements of the

offenses were aggravating. Second, the judge essentially relied on the elements

of one offense to support an above-advisory sentence for the other offense, and

vice versa. In other words, the judge relied on (1) the fleeing element from

Mannix’s conviction for failure to stop after an accident resulting in death to

support an above-advisory sentence for OWI causing death and (2) the

intoxication element from Mannix’s conviction for OWI causing death to

support an above-advisory sentence for failure to stop after an accident resulting

in death. Because the judge relied on the elements, he was required to identify

something unique about the circumstances that would justify deviating from the

advisory sentence. The judge’s failure to do this was improper as a matter of

law.




7
  Although the judge did not explain this point further, he did say that he agreed with the prosecutor’s
analysis that the two counts allowed for an “aggravated sentence.” Tr. p. 757-58. The prosecutor had argued
earlier that “the operating while intoxicated causing death followed by leaving the scene” were aggravators
that supported an “enhanced aggravated sentence.” Id. at 743.
In the alternative, the prosecutor argued that the trial court could impose an advisory sentence for each
conviction and then run the sentences consecutively. Id. at 743-44. But the prosecutor concluded that he did
not think consecutive sentences were allowed because the elements (which were used as an aggravator) were
“both absorbed in the crimes themselves.” Id. Notably, a trial court must find at least one aggravating factor
before imposing consecutive sentences. See Harris v. State, 964 N.E.2d 920, 926 (Ind. Ct. App. 2012), trans.
denied. However, neither the State nor the trial court explained why it believed that the elements of the
offenses could be relied on as an aggravator to justify above-advisory sentences but not used as an aggravator
to justify consecutive sentences. The State does not continue to make this argument on appeal.

Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016                         Page 18 of 23
[33]   Where the trial court has erred in sentencing a defendant, there are several

       options for the appellate court. Windhorst, 868 N.E.2d at 507. “Without a trial

       court sentencing order that meets the requirements of the law,” we have the

       option to remand to the trial court for a clarification or new sentencing

       determination. Id. Additionally, we may exercise our authority to review and

       revise the sentence. Id.


[34]   We choose to exercise our authority to review and revise Mannix’s sentence.

       Accordingly, we revise Mannix’s sentence to the advisory term of four years

       with one year suspended for each conviction, to be served concurrently, and

       one year of probation.

[35]   Affirmed in part and reversed in part.

       Bailey, J., concurs.

       Crone, J., concurs in part and dissents in part.




       Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016   Page 19 of 23
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Morgan Mannix,                                            March 23, 2016
       Appellant-Defendant,                                      Court of Appeals Case No.
                                                                 49A04-1505-CR-294
               v.                                                Appeal from the Marion Superior
                                                                 Court
       State of Indiana,                                         The Honorable Kurt M. Eisgruber,
       Appellee-Plaintiff.                                       Judge
                                                                 Trial Court Cause No.
                                                                 49G01-1211-FC-79738



       Crone, Judge, concurring in part and dissenting in part.


[36]   I fully concur as to issues I and II. As to issue III, I respectfully dissent.

[37]   Here, as the majority notes, the trial court

               essentially relied on the elements of one offense to support an
               above-advisory sentence for the other offense, and vice versa. In
               other words, the judge relied on (1) the fleeing element from
               Mannix’s conviction for failure to stop after an accident resulting
               in death to support an above-advisory sentence for OWI causing
               death and (2) the intoxication element from Mannix’s conviction
               for OWI causing death to support an above-advisory sentence for
               failure to stop after an accident resulting in death.


       Slip op. at 18. Gomillia does not prohibit this, nor does it require that a trial

       court find “something unique about the circumstances that would justify

       deviating from the advisory sentence” for an offense based on an element of


       Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016              Page 20 of 23
       another offense. 13 N.E.2d at 852-53.8 But even if the trial court had been

       required to do so in this case, I believe that the distinguishing elements of the

       offenses (fleeing, intoxication) are self-evident and therefore sufficient to

       support the trial court’s sentence.

[38]   On a more basic level, it is beyond dispute that committing multiple offenses is

       worse than committing one offense. Just as a person who harms multiple

       victims may deserve more punishment than a person who harms one victim,9 a

       person who commits multiple offenses may deserve more punishment than a

       person who commits only one offense. I fail to see how the commission of two

       offenses cannot be considered an aggravating circumstance compared to the

       commission of one offense.

[39]   Mannix asks us to reduce her sentence pursuant to Indiana Appellate Rule 7(B),

       which 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. “The purpose of our review is not to reach what we perceive to be a

       ‘correct’ sentence but merely to ‘leaven the outliers.’” Gibson v. State, 43 N.E.3d



       8
         The Gomillia court’s rationale for requiring a trial court to find “something unique about the circumstances
       that would justify deviating from the advisory sentence” for an offense based on an element of that offense is
       that “the Legislature has determined the appropriate advisory sentence based upon the elements of the
       offense.” 13 N.E.3d at 852-53. That rationale does not (and in my view should not) apply to the
       enhancement of a sentence based on an element of a separate offense.
       9
         See Serino v. State, 798 N.E.2d 852, 857 (Ind. 2003) (“[W]hen the perpetrator commits the same offense
       against two victims, enhanced and consecutive sentences seem necessary to vindicate the fact that there were
       separate harms and separate acts against more than one person.”).

       Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016                         Page 21 of 23
       231, 241 (Ind. 2015) (quoting Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)).

       “Because sentencing is a highly case-sensitive endeavor, we recognize it is

       generally a decision best made at the trial court level.” Id. “[A]ppellate review

       should focus on the forest—the aggregate sentence—rather than the trees—

       consecutive or concurrent, number of counts, or length of the sentence on any

       individual count.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).


[40]   “When reviewing the appropriateness of a sentence under Rule 7(B), we may

       consider all aspects of the penal consequences imposed by the trial court in

       sentencing the defendant, including whether a portion of the sentence was

       suspended.” Weedman v. State, 21 N.E.3d 873, 894 (Ind. Ct. App. 2014), trans.

       denied (2015). Here, the trial court suspended two years of Mannix’s concurrent

       six-year terms and allowed her to spend one of the four remaining years on

       home detention rather than in the Department of Correction. “The question

       under Appellate Rule 7(B) is not whether another sentence is more appropriate;

       rather, the question is whether the sentence imposed is inappropriate. It is the

       defendant’s burden on appeal to persuade us that the sentence imposed by the

       trial court is inappropriate.” Hunt v. State, 43 N.E.3d 588, 590 (Ind. Ct. App.

       2015) (citation omitted), trans. denied.


[41]   Mannix’s “nature of the offense” argument is based solely on the trial court’s

       reliance on the elements of one offense to support an enhanced sentence for the

       other offense. This is more properly characterized as a claim that the trial court

       abused its discretion in considering aggravating factors, which requires a

       separate analysis. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). I

       Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016   Page 22 of 23
       would find no abuse of discretion for the reasons given above, and I would also

       find that Mannix has waived her inappropriateness argument as to the nature of

       her offenses.


[42]   Waiver notwithstanding, I find such argument unpersuasive. Mannix drank at

       least six beers and got behind the wheel of her car in the middle of the night.

       She drove off the road for over 100 feet and struck Alex Trabert with enough

       force to knock him out of his shoes and into her windshield, which shattered.

       She made only a cursory effort to find whatever she hit, did not attempt to

       summon help, drove home, and went to bed. Later that morning, Trabert’s

       dead body was found on the side of the road, and Mannix’s blood tested

       positive for both alcohol and marijuana. The nature of Mannix’s offenses

       supports a sentence above the advisory term and reflects unfavorably on her

       character. Although she has no criminal history and has achieved some

       educational and vocational success, she exhibited extremely poor judgment that

       resulted in the death of an innocent young man. She has used alcohol and

       marijuana since she was a teenager, and she continued to consume alcohol until

       the week of trial. Appellant’s App. at 237 (presentence investigation report).

       Mannix has failed to persuade me that the trial court’s sentence is

       inappropriate, and therefore I would affirm it.




       Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016   Page 23 of 23
