MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Jun 12 2019, 7:19 am
court except for the purpose of establishing
                                                                            CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Madison, Indiana                                         Attorney General of Indiana
                                                         Marjorie Lawyer-Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Phillip Struble,                                         June 12, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2851
        v.                                               Appeal from the Dearborn
                                                         Superior Court
State of Indiana,                                        The Honorable Jonathan N.
Appellee-Plaintiff.                                      Cleary, Judge
                                                         Trial Court Cause No.
                                                         15D01-1703-F6-84




Tavitas, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-2851 | June 12, 2019                   Page 1 of 7
                                                  Case Summary
[1]   Phillip J. Struble appeals his sentence, received pursuant to his guilty plea, for

      operating a vehicle as a habitual traffic violator, a Level 6 felony. We affirm.


                                                           Issue
[2]   Struble raises one issue, which we restate as whether his sentence is

      inappropriate in light of the nature of his offense and his character.


                                                          Facts 1
[3]   On October 15, 2016, Struble was on work release at the Dearborn County Jail

      serving a sentence on an unrelated case. A community corrections officer at the

      Dearborn County Jail called law enforcement and reported that Struble left the

      jail for work and was operating a vehicle without a license. A law enforcement

      officer conducted a traffic stop and determined that Struble’s license was

      suspended for being a habitual traffic violator. Struble was then placed into

      custody. The officer impounded the vehicle and conducted an inventory search

      of the vehicle. During the inventory, the officer found a plastic bag with white

      powder residue that tested positive for hydrocodone.


[4]   The State charged Struble with Count I, operating a vehicle as a habitual traffic

      violator; and Count II, possession of a narcotic, both Level 6 felonies. On




      1
        Struble did not obtain the guilty plea hearing transcript for this appeal, and it appears that Struble and the
      State cite to the probable cause affidavit for the statement of facts in their briefs. We, therefore, will do the
      same.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2851 | June 12, 2019                           Page 2 of 7
      October 25, 2017, Struble pleaded guilty to operating a vehicle as a habitual

      traffic violator, a Level 6 felony. The remaining count was dismissed.


[5]   At sentencing, Struble admitted that, on October 15, 2016, he drove a short

      distance from the jail to Ivy Tech Community College. Struble’s fiancée

      attended class at Ivy Tech and typically drove Struble to work. Struble’s

      intention was to move the vehicle to his fiancée’s location so she could take him

      to work.


[6]   The trial court sentenced Struble to two years, fully executed. In imposing the

      sentence, the trial court found:


              As far as the nature of the criminal offense, it’s undisputed that
              on October fifteenth of two-thousand sixteen, M[r.] Struble was
              on work release at the Dearborn County Jail serving a sentence
              on a [sic]. . . unrelated case. The community corrections officers
              observed him [ ] driving, he was charged with operating as a
              habitual traffic violator. There was also a white powder in a bag
              located inside [the] car, that was tested for hydrocodone, a
              schedule two controlled substance. The Court does note that the
              State dismissed the drug charge. The Court finds that the
              culpability of M[r.] Struble is high. To be on work on [sic]
              release and to be committing a felony while he’s on work release,
              and the severity of that crime, with his criminal history to be
              given the opportunity to keep his job and do work release, and to
              be out committing another felony. The Court does find that the
              severity of the crime is high. As far as mitigating factors, the
              Court does consider that he has plead [sic] open to the Court, the
              dependent children that he does have, and also the mental and
              physical health that his counsel has shared here this morning.
              The Court is required to consider the criminal history under
              Indiana Law. It began as a juvenile history. . . . There was then
              the adult history . . . . So, there’s been, as stated previously, the
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2851 | June 12, 2019   Page 3 of 7
              criminal history is extensive. Based upon the extensive criminal
              history, combined with M[r.] Struble not appearing in Court for a
              period of nine months on a failure to appear warrant for
              sentencing, the Court does accept the State’s recommendation,
              seven hundred and thirty day sentence, none of that time is
              suspended . . . .


      Tr. Vol. I pp. 15-19. Struble now appeals.


                                                  Analysis
[7]   Struble asks that we review and revise his 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 defendant bears the burden to persuade this court that his

      or her sentence is inappropriate. Wilson v. State, 966 N.E.2d 1259, 1266 (Ind.

      Ct. App. 2012) (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)),

      trans. denied.


[8]   In Indiana, trial courts can tailor an appropriate sentence to the circumstances

      presented; the trial court’s judgment receives “considerable deference.” Sanders

      v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017) (quoting Cardwell v. State, 895

      N.E.2d 1219, 1222 (Ind. Ct. App. 2008)), trans. denied. In conducting our

      review, we do not look to see whether the defendant’s sentence is appropriate or

      “if another sentence might be more appropriate; rather, the question is whether

      the sentence imposed is inappropriate.” Sanders, 71 N.E.3d at 844 (citing King

      v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008)).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2851 | June 12, 2019   Page 4 of 7
[9]    We look to the statutory range established for the classification of the offense.

       The sentence for a Level 6 felony ranges from six months to two-and-a-half

       years, with an advisory sentence of one year. Ind. Code § 35-50-2-7. Here, the

       trial court imposed a two-year fully executed sentence for operating a vehicle as

       a habitual traffic violator, a Level 6 felony.


[10]   “[T]he advisory sentence is the starting point the Legislature has selected as an

       appropriate sentence.” Green v. State, 65 N.E.3d 620, 637-38 (Ind. Ct. App.

       2016), trans. denied. A deviation from the advisory sentence, when determining

       the appropriateness of a sentence, requires us to examine whether there is

       anything more or less egregious about the offense committed by Struble that

       “makes it different from the ‘typical’ offense accounted for by the legislature

       when it set the advisory sentence.” See Holloway v. State, 950 N.E.2d 803, 807

       (Ind. Ct. App. 2011) (quoting Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App.

       2008), trans. denied).


[11]   Pursuant to Indiana Appellate Rule 7(B), we first review the nature of Struble’s

       offense. As the trial court observed:


               To be on work on [sic] release and to be committing a felony
               while he’s on work release, and the severity of that crime, with
               his criminal history to be given the opportunity to keep his job
               and do work release, and to be out committing another felony.
               The Court does find that the severity of the crime is high.


       Tr. Vol. I p. 16. Regardless of his assertion that he drove only a short distance,

       Struble was an inmate on work release when he drove away from jail, knowing


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2851 | June 12, 2019   Page 5 of 7
       that he was a habitual traffic violator without a valid license. Upon searching

       the vehicle, officers found a plastic bag with white powder residue that tested

       positive for hydrocodone.


[12]   Next, we consider Struble’s character. “When considering the character of the

       offender, one relevant fact is the defendant’s criminal history.” Garcia v. State,

       47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied. Struble has a lengthy

       criminal history that began in 1992, which does not reflect well upon his

       character. As a juvenile, Struble was adjudicated as a delinquent for acts that

       would be considered: (1) criminal mischief, (2) operating a vehicle without ever

       receiving a license, (3) two counts of illegal consumption of alcohol by a minor,

       (4) theft, and (5) possession of marijuana, if committed by an adult. Struble

       also has an extensive adult criminal record, which includes fifteen convictions

       in Indiana and Ohio. As of the date of the presentence investigation report,

       Struble had six pending causes in Ohio. He has failed to conform his actions in

       response to more lenient sentencing options, with multiple probation

       revocations and work release violations. In the instant case, Struble was serving

       a work release sentence when he committed the instant felony. Additionally,

       Struble had an outstanding failure to appear warrant for nine months for

       sentencing in the present case.


[13]   Struble’s criminal history demonstrates a substantial disregard for the criminal

       justice system. While Struble’s entry of a guilty plea may reflect well upon his

       character, and the trial court noted Struble’s dependent children and his mental

       and physical health as mitigating factors, these factors do not outweigh his

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2851 | June 12, 2019   Page 6 of 7
       extensive criminal history. Struble has not convinced us that his two-year

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


                                                 Conclusion
[14]   Struble has failed to demonstrate that his sentence is inappropriate in light of

       the nature of his offense and his character. We affirm.


[15]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2851 | June 12, 2019   Page 7 of 7
