MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Jan 11 2019, 10:23 am
regarded as precedent or cited before any
                                                                           CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark A. Thoma                                            Curtis T. Hill, Jr.
Deputy Public Defender                                   Attorney General of Indiana
Leonard, Hammond, Thoma & Terrill
                                                         Monika Prekopa Talbot
Fort Wayne, Indiana                                      Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Aaron M. Graves,                                         January 11, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1937
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Hon. Wendy W. Davis, Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         02D04-1701-F6-49




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1937 | January 11, 2019               Page 1 of 10
                                          Case Summary
[1]   In February of 2017, Aaron Graves consumed a large amount of alcohol, got

      behind the wheel of his vehicle, and caused another driver to collide with him

      when Graves suddenly turned in front of him. Although Graves attempted to

      flee the scene of the accident on foot, he was arrested and his blood alcohol

      concentration (“BAC”) was determined to be 0.348 g/ml. Graves (1) was

      convicted of obstruction of justice, leaving the scene of an accident, and

      operating a vehicle while intoxicated (“OWI”) with a prior conviction; (2)

      stipulated to being a habitual vehicular substance offender; and (3) was

      sentenced to an aggregate term of ten years of incarceration, with four years

      suspended and one year of probation. Graves contends that the trial court

      abused its discretion in sentencing him, his sentence is inappropriately harsh,

      and his sentence is disproportionate to the nature of his offense. Because we

      disagree, we affirm.


                            Facts and Procedural History
[2]   On the evening of January 14, 2017, Frederick Wricks was driving in Fort

      Wayne when Graves suddenly turned in front of him, causing Wricks’s vehicle

      to collide with Graves’s. A man who lived nearby ran to Graves’s smoking

      vehicle, unbuckled his seatbelt, and pulled him out. Graves took a bottle of

      dark liquor from the passenger’s seat and began to leave. When the man told

      Graves to stop, Graves walked away. Graves still had the liquor bottle, and his

      breath smelled of alcohol. As police approached, Graves went behind a tree,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1937 | January 11, 2019   Page 2 of 10
      took a “swig” from the bottle, and threw it away. Tr. Vol. I p. 210. After

      Graves’s arrest, his blood was drawn and his BAC was determined to be 0.348

      g/ml. It was also determined that 260 ml of liquor was missing from the bottle

      Graves threw away and if that was all Graves had had to drink that day, his

      BAC could have been no greater than 0.14 g/ml.

[3]   On January 18, 2017, the State charged Graves with Level 6 felony obstruction

      of justice, Level 6 felony OWI with a prior conviction, Class A misdemeanor

      OWI endangering a person, and Class A misdemeanor leaving the scene of an

      accident, also alleging him to be a habitual vehicular substance offender. On

      July 18, 2018, a jury found Graves guilty as charged and he stipulated to all of

      the enhancements. On July 25, 2018, the trial court sentenced Graves to

      concurrent terms of two years of incarceration for obstruction of justice, one

      year for leaving the scene of an accident, and two years for OWI with a prior

      conviction enhanced to ten years by virtue of Graves’s habitual vehicular

      substance offender status. The trial court suspended four years of Graves’s

      aggregate ten-year sentence and ordered one of those years to be spent on

      probation.


                                 Discussion and Decision
                       I. Whether the Trial Court Abused its
                          Discretion in Sentencing Graves
[4]   Under our current sentencing scheme, “the trial court must enter a statement

      including reasonably detailed reasons or circumstances for imposing a


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1937 | January 11, 2019   Page 3 of 10
      particular sentence.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),

      modified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2008). We review the

      sentence for an abuse of discretion. Id. An abuse of discretion occurs if “the

      decision is clearly against the logic and effect of the facts and circumstances.”

      Id. A trial court abuses its discretion if it (1) fails “to enter a sentencing

      statement at all[,]” (2) enters “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,” (3) enters a sentencing

      statement that “omits reasons that are clearly supported by the record and

      advanced for consideration,” or (4) considers reasons that “are improper as a

      matter of law.” Id. at 490–91. If the trial court has abused its discretion, we

      will remand for resentencing “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.” Id. at 491. However, the relative

      weight or value assignable to reasons properly found, or to those which should

      have been found, is not subject to review for abuse of discretion. Id.


[5]   In sentencing Graves, the trial court found, as aggravating circumstances, his

      criminal history, that prior attempts at rehabilitation had failed, that Graves

      was on probation when he committed his offenses in this case, and that he was

      evaluated and found to pose a very high risk of recidivism. The trial court

      found Graves’s acceptance of responsibility (shown by stipulating to the

      enhancements) and his two minor children to be mitigating.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1937 | January 11, 2019   Page 4 of 10
[6]   Graves contends that the trial court failed to properly consider his claim that he

      had had a three-year period of sobriety and professional growth prior to this

      case. Even if we assume that this is true, Graves’s period of sobriety has

      obviously ended. Although Graves acknowledges that he has a substance-abuse

      problem, he has not taken the steps necessary to permanently address it. Under

      the circumstances, the trial court did not abuse its discretion in refusing to find

      Graves’s substance abuse and/or period of sobriety to be mitigating. See, e.g.,

      Bryant v. State, 802 N.E.2d 486, 501 (Ind. Ct. App. 2004) (“Moreover, the

      record demonstrates that Bryant was aware of his drug and alcohol problem,

      yet he had not taken any positive steps to treat his addiction. Thus, the trial

      court did not err in determining that his substance abuse was an aggravating

      factor.” (record citation omitted)), trans. denied.


[7]   Graves also contends that the trial court did not assign sufficient mitigating

      weight to his acceptance of responsibility. Pursuant to Anglemyer, however, this

      is no longer a cognizable claim. See Anglemyer, 868 N.E.2d at 491 (concluding

      that the relative weight or value assignable to reasons properly found, or to

      those which should have been found, is not subject to review for abuse of

      discretion). Moreover, we treat the consideration of remorse or acceptance of

      responsibility as a credibility determination best left to the sentencing court. See

      Pickens v. State, 767 N.E.2d 530, 534–35 (Ind. 2002). Graves has failed to

      establish an abuse of discretion.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1937 | January 11, 2019   Page 5 of 10
               II. Whether Graves’s Sentence is Inappropriate
[8]   We “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.” Ind.

      Appellate Rule 7(B). “Although appellate review of sentences must give due

      consideration to the trial court’s sentence because of the special expertise of the

      trial bench in making sentencing decisions, Appellate Rule 7(B) is an

      authorization to revise sentences when certain broad conditions are satisfied.”

      Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations

      and quotation marks omitted). “[W]hether we regard a sentence as appropriate

      at the end of the day turns on our sense of the culpability of the defendant, the

      severity of the crime, the damage done to others, and myriad other factors that

      come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

      2008). In addition to the “due consideration” we are required to give to the

      trial court’s sentencing decision, “we understand and recognize the unique

      perspective a trial court brings to its sentencing decisions.” Rutherford v. State,

      866 N.E.2d 867, 873 (Ind. Ct. App. 2007).


[9]   The nature of Graves’s offenses is egregious. Graves did not have “one too

      many” on February 14, 2017: When Graves’s blood was drawn at the jail, his

      BAC was 0.348 g/ml. Toxicologist Sheila Arnold testified that a male Graves’s

      size would have to consume twenty-one ounces of eighty-proof liquor to

      achieve a BAC of 0.329 g/ml, a BAC lower than Graves’s. Even if we take

      away the liquor Graves drank after the accident (assuming the bottle was full

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1937 | January 11, 2019   Page 6 of 10
       beforehand), that would only account for, at most, 0.14 of the 0.348 g/ml. No

       matter how one looks at it, Graves must have consumed a prodigious amount

       of alcohol prior to the accident to achieve a BAC of 0.348 g/ml, which is more

       than four times the legal limit for operating a motor vehicle. See Ind. Code § 9-

       30-5-4. Moreover, the injuries Graves caused were not insignificant and

       certainly could have been much worse. Wricks testified that he had bruising on

       his right biceps and “a banged up knee[,]” injuries that rendered him unable to

       work for approximately one month. Tr. Vol. I p. 182. In addition, not only did

       Graves leave the scene of the accident, he left without approaching Wricks to

       identify himself or determine whether he needed help. The nature of Graves’s

       offenses justifies his sentence.

[10]   As for Graves’s character, it is revealed by his criminal record, which even he

       acknowledges is extensive. Graves, born in 1980, has misdemeanor convictions

       that include OWI, leaving the scene of a property-damage accident, three

       counts of battery resulting in bodily injury, possession of marijuana, operating

       while suspended, failure to stop after an accident causing non-vehicle damage,

       two counts of operating a vehicle as a habitual traffic violator, invasion of

       privacy, and OWI endangering a person. Graves has felony convictions for

       OWI and operating a vehicle as a habitual traffic violator. In addition, Graves

       has had his sentences modified three times and revoked twice, has had the

       terms of his probation modified once, was on probation when he committed his

       offenses in this case, and had pending charges of Level 6 felony residential entry

       and Class A misdemeanor criminal trespass as of sentencing. Despite his


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1937 | January 11, 2019   Page 7 of 10
       frequent brushes with the law, which have resulted in multiple periods of

       incarceration, Graves has not chosen to reform himself. In light of the nature of

       his offenses and his character, Graves has failed to establish that his six-year

       executed sentence followed by one year of probation is inappropriate.


             III. Whether Graves’s Sentence is Disproportionate
[11]   Article 1, section 16 of the Indiana Constitution provides, in part, that “[a]ll

       penalties shall be proportioned to the nature of the offense[,]” requiring us to

       review whether a sentence is not only within statutory parameters but also

       constitutional as applied to a particular defendant. Shoun v. State, 67 N.E.3d

       635, 641 (Ind. 2017). Our standard for reviewing an as-applied proportionality

       challenge depends on the type of penalty at issue. Id. For habitual-offender

       enhancements, appellate courts assess the nature and gravity of the present

       felony and the nature of the prior felonies on which the enhancement is based.

       Id.

[12]   Graves argues that his ten-year sentence for Level 6 felony OWI with a prior

       conviction, including the habitual vehicular substance offender enhancement, is

       disproportionate to the nature of the offense. The maximum sentence for a

       Level 6 felony is two and one-half years, Ind. Code § 35-50-2-7(b), and Indiana

       Code section 9-30-15.5-2(d) provides that “[t]he court shall sentence a person

       found to be a habitual vehicular substance offender to an additional fixed term

       of at least one (1) year but not more than eight (8) years of imprisonment, to be

       added to the term of imprisonment imposed under IC 35-50-2 or IC 35-50-3.”

       Here, the trial court imposed a two-year sentence for OWI with a prior
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1937 | January 11, 2019   Page 8 of 10
       conviction, which it enhanced by eight years due to Graves’s habitual vehicular

       substance offender status.

[13]   We first note that Graves received an aggregate sentence of ten years, which is

       less than the ten and one-half years that the trial court could have imposed. In

       addition, four years of the sentence were suspended to probation, leaving

       Graves’s executed sentence at six years. We conclude this sentence is

       proportionate to the nature and gravity of Graves’s offense, which we covered

       in another section of this memorandum decision. To summarize, the nature of

       the behavior underlying Graves’s offense is that he consumed a very large

       amount of alcohol (such that his BAC was over four times the legal limit),

       chose to drive with that alcohol in his system, and caused an automobile

       accident which left his victim with injuries severe enough that he was unable to

       work for a month. As noted, it is indeed fortunate that the results of Graves’s

       offense were not considerably worse.

[14]   The nature of the prior convictions on which the enhancement is based does not

       help Graves either. Graves was sentenced for Class D felony OWI in January

       of 2003 and Class A misdemeanor OWI in June of 2012. These prior

       convictions are not petty crimes committed far in the past being used to support

       a habitual-offender enhancement today; rather, they are of the same precise

       nature as the instant crime and at least one is relatively recent. In light of

       Graves’s history of refusing to refrain from drinking and driving, there is

       nothing disproportionate about Graves’s sentence in this case.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1937 | January 11, 2019   Page 9 of 10
                                               Conclusion
[15]   In conclusion, we conclude that the trial court did not abuse its discretion in

       sentencing Graves. We further conclude that his sentence is not inappropriate.

       Finally, we conclude that Graves’s sentence is proportional to the nature and

       gravity of his crime and the previous crimes upon which the enhancement is

       based.

[16]   We affirm the judgment of the trial court.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1937 | January 11, 2019   Page 10 of 10
